Feds: But It Looked Really Spy-ish

Via Matt Apuzzo at the New York Times, it turns out the feds, who arrested Temple University’s head of its physics department, Dr. Xi Xiaoxing, for spying by sending schematics to China of a secret device, a “pocket heater,” blew it. The very serious looking schematic turned out to be the plans for, well, something else.

It was an embarrassing acknowledgment that prosecutors and F.B.I. agents did not understand — and did not do enough to learn — the science at the heart of the case before bringing charges that jeopardized Dr. Xi’s career and left the impression that he was spying for China.

He was arrested, led away in cuffs, reputation stained and life upended.  Because he was a spy the agents had no clue what all the squiggly lines meant, but it sure looked spy-ish.

“I don’t expect them to understand everything I do,” Dr. Xi, 57, said in a telephone interview. “But the fact that they don’t consult with experts and then charge me? Put my family through all this? Damage my reputation? They shouldn’t do this. This is not a joke. This is not a game.”

Consult with experts? But they’re FBI agents. They’re prosecutors. They are experts. They know enough to know that you’re a criminal. They know criminals. And that’s good enough.

But the Xi arrest, and its subsequent dismissal when somebody explained to the feds that they were clueless morons, is an extreme example of a phenomenon that pervades criminal law.

Because it was so far outside of their substantive knowledge, there was a grudging willingness to eventually accept that they blew it, they were prosecuting a professor for something that wasn’t at all what they believed it was.  Note the word “believed,” rather than “thought.” They lacked the capacity for thought.

They’re a bunch of cops and prosecutors. They didn’t know squat about what the schematic was of, but somebody, somewhere, said, “I kinda sorta think that’s like something they can’t send to China,” and from there, the machine cranked up to crush the witch.  And not one of these very, very smart, bordering on genius, prosecutors thought to themselves, “maybe, just maybe, I need to go to someone who actually knows something for real and, you know, find out whether this is what I believe it is.”

A longtime federal prosecutor, Mr. Zeidenberg said he understood that agents felt intense pressure to crack down on Chinese espionage, but the authorities in these cases appeared to have been too quick to assume that their suspicions were justified.

Peter Zeidenberg, who is now on the dark side and defended Dr. Xi, showed the subtle understanding that longtime former federal prosecutors are inclined to show.  It’s a hard job being a prosecutor. There’s “intense pressure” to find the bad guys.  It’s generous of Zeidenberg to be so forgiving. Then again, had Dr. Xi been convicted, would he still have been so generous toward the poor prosecutors?

Worse still, what if Dr. Xi, because he had no reason to anticipate that the United States of America would deem him an enemy of the state, had reacted poorly at the time of his arrest?

About a dozen F.B.I. agents, some with guns drawn, stormed Dr. Xi’s home in the Philadelphia suburbs in May, searching his house just after dawn, he said. His two daughters and his wife watched the agents take him away in handcuffs on fraud charges.

Was it really necessary for the FBI to send in “about a dozen agents” to take down the head of Temple University’s physics department?  What of the guns drawn?  Drawn guns lead to guns being fired, which leads to bullets leaving their barrels at great velocity, striking human bodies and doing significant, if not deadly, harm.  Guns drawn?

It’s hardly a stretch to envision Dr. Xi being outraged and offended by agents storming his home.  It’s hardly a stretch to envision righteous indignation at such treatment.  After all, he was a renowned scientist, and that puts him squarely on the good guy curve.  Among the many classes he took in achieving his educational accomplishments, “how to be arrested by the feds without getting killed” was not likely to be one.  What if Dr. Xi did it wrong?

There are a great many substantive details that arise in the course of criminal investigations, prosecutions, that are beyond the ken of agents, prosecutors and judges.  There is a strong, perhaps overwhelming, tendency to stop trying to learn and understand things upon reaching the level of belief that matches their desired outcome.  The schematic here appeared to be something? Close enough. Take ’em down.

But this happens in far less sophisticated cases.  It’s a constant in white collar prosecutions, where prosecutors employ their mad biz skillz to dictate how multinational corporations function in the eyes of young lawyers whose only prior connection to big business is Amazon Prime. It happens constantly in drug prosecutions, where agents present themselves as drug dealing experts because some other agent in Quantico told them how drug dealers work.

And the judges, lacking any reason to gain a level of awareness beyond that which the evidence presents, are left to parse these claims of pseudo-expertise with their eyes shut.  And after a virgin judge admits his first law enforcement expert, the ones following are easy.  All they need do is mutter, based upon my education and experience, plus the unproven (and unprovable) vast experience in law enforcement (“I was ‘involved’ with more than 350 narcotics arrests.” Name them. Objection. Sustained.)

Agents are taught to be agents. Prosecutors are lawyers. As are judges and defense counsel.  We have the capacity to learn, at least enough at time to not be total fools, but that doesn’t mean we either bother or do the hard work.  And at other times, grasping the substance is beyond us.  Nobody invites a needless headache when we believe we’ve got enough to make the charge stick.

Thankfully, Dr. Xi has now been cleared, and survived his ordeal.  But we only know about it because the government got smacked for such an extreme example of substantive cluelessness.  The banal cluelessness never makes the New York Times, and usually prevails.

14 thoughts on “Feds: But It Looked Really Spy-ish

  1. LTMG

    If police sometimes have trouble figuring out how to turn their video cameras on, keep them on, and keep the sound on, why should we be surprised that some police and agents would be utterly confused by a schematic of an electronic device and assume it’s something restricted for export?

    If one was a daring sort, an interesting experiment might be to pass a schematic of a 1960s tube television set under the noses of the authorities while sending it to a country on the restricted list. Such a schematic is big, about the size of a sheet of newsprint, very complicated, shows oscillator and amplifier circuits, and is thoroughly overwhelming to untrained eyes.

  2. Neil Dunn

    The very serious looking schematic turned out to be the plans for, well, something else.

    My bad but I missed what the mystery schematic represented. In my search I read the NYT article and enjoyed the link to the espionage work and conviction of the spy for stealing a whitening pigment used for autos and oreo cookies. Thanks for that.

      1. John Barleycorn

        “The science involved in Dr. Xi’s case is, by any measure, complicated. It involves the process of coating one substance with a very thin film of another. Dr. Xi’s lawyer, Peter Zeidenberg, said that despite the complexity, it appeared that the government never consulted with experts before taking the case to a grand jury. As a result, prosecutors misconstrued the evidence, he said.”

        I am beginning to think there might be a niche for a comic book series about an average Joe who becomes a super hero while serving on a grand jury whose super human power is inquisitive inquiry. The prosecutors character faults should come across quite nicely in a comic book series.

        P.S. FUCK the cowards at Temple University who did not steadfastly stand by the accused Dr. Xi while he was on his ride courtesy of the DOJ.

  3. Max Kennerly

    The chilling effect around here was immense — the arrest triggered a sense of panic in dozens of immigrant scientists wondering who was next, wondering if they’d get swept up in a dragnet for doing nothing at all.

    It’s not even over for Dr. Xi. He was stripped of his position as the chair of the physics department at Temple, and Temple hasn’t decided yet if they’re giving it back.

    Heckofajob, DOJ and USAO.

    1. SHG Post author

      It would be disgraceful of Temple not to restore him to his position.

      As for the chilling effect, while discrete groups tend to think this is a problem directed only at them (remember Aaron Schwartz?), the feds raise the consciousness of a significant group of people when they do something like this and touch their lives. They suddenly realize that it doesn’t just happen to someone else.

  4. Fubar

    From the latest FBI warning to superconductor Physicists:

    Pocket heaters are secret, you see,
    Knowledge of them must never be free.
    So, don’t sneak a look,
    Unless you’re a crook:
    Patent eight two nine oh five five three!

    [Unfortunately that bit of humor risks inflicting stupidity upon readers. Patent #8,290,553, is for a “Device and Method for Fabricating Thin Films by Reactive Evaporation”, and discloses a specific pocket heater design as a component.

    Dr. Xi’s arrest was for disclosing a private trade secret, not for revealing a state secret. Design of a specific pocket heater can be held as a trade secret, or can be disclosed in a patent.

    As noted above in these comments, precisely what Dr. Xi’s schematic actually described was not revealed in news reports. We only know it was not a pocket heater, and was not appropriation and disclosure of a trade secret.]

  5. lawrence kaplan

    SHG: You might wish to take a look at the WSJ’s disgraceful article on the dropping of charges. terming it ” a setback to the US government’s efforts to get tough on industrial espionage .”

  6. Syme

    And here I thought “pocket heater” was what the gangster at the speakeasy carried. At least Spock said so in “A Piece of the Action”….

  7. RICHARD HESS

    Good Morning,
    Other then Zane D. Memeger, the US attorney in Philadelphia who brought the charges, why is it most news sources never ID the teams that errored in cases like this? What where the consequences on their careers? As representatives of our Government, shouldn’t they be held to a high standard? Are there consequences in (almost) destroying someone’s life? Thanks, Rick

    1. SHG Post author

      That question gets asked by someone every time a case goes south for a ridiculous reason. To the extent there’s an answer, it’s no, there are no consequences to making a mistake that almost destroys someone’s life. If you want to know why, make friends with a judge and ask why over a cocktail.

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