Thread by @MargaretKLewis

Anming Hu's Judgment of Acquittal ON ALL COUNTS (following June's deadlocked jury) is short and sweet. 
The court's accompanying Memorandum Opinion and Order is a stinging rebuke of the government's case and, more generally, a stain on @TheJusticeDept's #ChinaInitiative. A🧵

Four points before digging into the opinion.
First, DOJ never should have sought a retrial. It could have dropped the case after the mistrial (&, as it turns out, avoided a 52-page ruling detailing how it failed to meet even minimal legal requirements).
foreignpolicy.com/2021/07/22/chi…

Second, although the acquittal is a tremendous victory, Prof Hu has endured emotional, financial, and even physical trauma, beginning with his first FBI interview in April 2018, to his February 2020 indictment, through a trial for multiple felony charges.
apajustice.org/uploads/1/1/5/…

Third, it is a VERY high bar for a defendant to obtain a Judgment of Acquittal. The judge must conclude that the evidence viewed in the light most favorable to the govt was insufficient for ANY rational trier of fact to find guilt beyond a reasonable doubt. Benchbook for judges:

As the court emphasized, a judgment of acquittal is only appropriate when the "prosecution's failure is clear." (And I hope this failure prompts some serious reflection and policy reforms @TheJusticeDept)

Fourth, this is a win for separation of powers. An independent court pushing back on prosecutorial overreach after a defendant presented a zealous defense in open court. Admittedly, this is probably not a narrative that will make it into PRC state media.
global.chinadaily.com.cn/a/202108/03/WS…

Okay, so what's in the 52-page opinion? Hu was indicted on 3 counts of wire fraud & 3 counts of causing false statements. In short, the govt alleged Hu had defrauded NASA by concealing ties to the Beijing University of Technology (BJUT). The court focuses on the issue of intent.

There were no allegations of traditional spying, of economic espionage (providing trade secrets to the PRC govt or an affiliated entity), or that Hu was conducting the specific NASA-grant research in collaboration with an entity prohibited by US law. Rather, here's the issue:

The court recounts the evidence at trial, including Hu's various disclosures made to the University of Tennessee (UT). I was struck by this footnote making clear that at best the lead FBI agent was in way over his head (lacked understanding even how federal grants work). Dang.

The court then explains the prohibition on NASA using funding for collaboration with China. More on that here:
scientificamerican.com/article/can-th…

The court points out that a key UT training on NASA grant restrictions "was not available to defendant prior to his NASA proposals" (p.12). And here's another "Oh Dang!" paragraph (p.26). This is not helping a theory that Hu is sneakily taking the government's cash.

Then we get to the procedural part. Hu moved for a judgment of acquittal, which the court held & let the jury deliberate: after "deliberating over the course of three days, the jury informed the Court that it was hopelessly deadlocked, and the Court declared a mistrial" (p.27)

On July 30, the govt notified the court that it wanted to retry Hu (double jeopardy does not block this type of "do over" after a deadlocked jury -- bonus tip: double jeopardy" also doesn't allow Ashley Judd to kill her husband after a wrongful conviction)

The court explains why Hu's void-for-vagueness argument re: NASA's China-funding restriction fails, but it's still in the mix when determining the key issue: what was going on in Hu's brain when the allegedly criminal activity occurred ("mens rea," to use law prof speak)

Hu argued that the government had not proved that he had any intent to injure NASA. Wire fraud requires (1) a scheme to defraud; (2) use of interstate wire communications in furtherance of the scheme; & (3) intent to deprive a victim of money or property.
law.cornell.edu/uscode/text/18…

The court then analyzes what "scheme to defraud" means. We've got everything from Bridgegate to Black's Law Dictionary in the mix, & lots of fun verbiage like "trick, deceit, chicane, or overreaching." I'm sure the judge and his clerks had some super interesting conversations.

Regarding the legal standard, the court explains, "the federal wire fraud statute requires a defendant to deceive the victim in order to obtain money or property and there is no 'defrauding' if there is no intent to harm, even if the transaction would not have occurred otherwise"

In other words, the govt needs to prove that the defendant had an intent to harm. Without that intent, there is no “scheme to defraud”: It is NOT enough to prove that the grant would not have been awarded but for the failure to disclose Hu's ties to the Beijing university.

The court then applies the law to the facts: "viewing the evidence in the light most favorable to the government, [could] any rational jury...conclude that defendant acted with intent to cause harm to NASA, such that he could be said to have acted with intent to 'defraud.'”

NASA got exactly the kind of research from the awarded grant that it sought:"There is simply no evidence that NASA did not receive something of value, and specifically, the benefit of its bargain."Because there was no scheme to defraud, the court acquits on the wire fraud counts!

But the court doesn't stop there! The wire fraud charges can't be substantiated even under a broader interpretation of defraud: the govt failed to provide enough evidence such that any rational jury could find Hu had the specific intent to defraud NASA by hiding his affiliation

Here we get into how prosecutors prove intent: jurors are allowed to make reasonable inferences (e.g., you point a loaded gun at another person and pull the trigger = inference of intent to kill), but we don't allow jurors to speculate. The inferences need to be reasonable.

UT's training program failed to provide crucial clarifications regarding the types of affiliations that require disclosure.
This drives home the point in @EricLander46's August statement: research security requires clear rules and clear training:
whitehouse.gov/ostp/news-upda…

The false statements charges fail too: b/c the govt failed to present sufficient evidence that Hu understood his affiliation w/ the Beijing university violated NASA's China restriction, rational jurors could not conclude that Hu knew certifications he submitted via UT were false.

Still with me? For an explanation why I think the broader "China Initiative" is fatally flawed because it is infused with bias and fuels prejudice & xenophobia (as seen in Professor Hu's case), check out my article. End 🧵
scholarlycommons.law.northwestern.edu/jclc/vol111/is…