Professor Charged With Passing Tech to China Seeks to Reinstate FBI Lawsuit

Professor Charged With Passing Tech to China Seeks to Reinstate FBI Lawsuit Professor Charged With Passing Tech to China Seeks to Reinstate FBI Lawsuit (SAUL LOEB/AFP via Getty Images)

ERIC TUCKER Monday, 07 February 2022 01:09 PM

A Temple University physicist who was charged with sharing scientific technology with China only for the case to collapse before trial and be dismissed by the Justice Department asked a federal appeals court on Monday to reinstate his lawsuit against the U.S. government.

Lawyers for Xiaoxing Xi and his wife say in a brief filed Monday with a Philadelphia-based appeals court that a judge erred last year when he dismissed their claims for damages, asserting that the FBI agent who led the investigation “intentionally, knowingly or recklessly” made false statements and misrepresented evidence so that prosecutors could get an indictment.

“When law enforcement agents abuse the legal process by obtaining indictments and search warrants based on misrepresentations or by fabricating evidence, it undermines the legitimacy of the courts,” Xi’s legal team, which includes lawyers from the American Civil Liberties Union, wrote in the brief.

“The judiciary has a stake in ensuring that malicious prosecutions and illegal searches do not go unchecked, and the courts have well-established standards for assessing such claims,” the brief says. “Moreover, the harm to Professor Xi, his family, and society at large, as well as the need to deter further misconduct, strongly weigh in favor of allowing these claims to proceed.”

The bungled case against Xi was brought three years before the Justice Department in 2018 launched what's known as the China Initiative, an effort to counter trade secret theft and economic espionage by Beijing.

Many of the cases have targeted American professors suspected of concealing Chinese ties on applications for federal funding. Despite some convictions, the effort has endured notable setbacks, with prosecutors forced to dismiss several cases over the last year — including one last month, when officials said they couldn't meet their burden of proof against a Massachusetts Institute of Technology professor.

The program is now under review.

The legal brief traces the history of the case, recounting how Xi, a naturalized U.S. citizen from China with expertise in thin film superconducting technology, was arrested at his home in 2015 and held at gunpoint with his wife and daughters before being taken into custody and interrogated and strip-searched. He was placed on administrative leave, suspended from his job as interim chair of Temple's physics department and was unable to continue his research.

He was indicted on charges that he had shared information about a device called a “pocket heater” with academic colleagues in China. But the criminal charges were “false and fabricated,” Monday's filing states, and the communications at the center of the indictment were not about a pocket heater but rather about an entirely separate device that Xi and his colleagues had invented.

The Justice Department dismissed the case before trial in 2015. Xi sued in 2017.

In the lawsuit, Xi singled out the FBI agent who investigated him, accusing him of having knowingly made false statements to prosecutors so that they could secure an indictment, and of ignoring information he'd been given prior to the prosecution that established Xi's innocence. The lawsuit also alleges that Xi was targeted based on his Chinese ethnicity.

In seeking to dismiss the lawsuit, Justice Department lawyers representing the FBI agent, Andrew Haugen, said probable cause had existed to indict Xi even if the case was later dismissed, and that he had made “reasonable efforts” to understand the professor's work.

A federal judge in Philadelphia, R. Barclay Surrick, dismissed the couple's claims for damages last year, ruling that they were unable to sue the U.S. government and that judgments and decisions about the investigation and prosecution were matters of discretion.

“What happened to Xi and his family is very unfortunate,” Surrick wrote. “Nevertheless, it is the obligation of this court to simply apply the law as it presently exists to the facts.”

But that ruling was erroneous, according to lawyers for the professor and his wife, who say in Monday's filing that their lawsuit plausibly alleged “the fabrication of evidence to secure an indictment of Professor Xi, the falsification of reports and affidavits to obtain a warrant for the search of the Xi family’s home and belongings, and the discriminatory prosecution of Professor Xi on the basis of his race and ethnicity.”