Table of Contents

Overview

2021/10/05 APA Justice Monthly Meeting

Five “Visa Fraud” Case

Links and References

Overview

On July 23, 2020, the Department of Justice (DOJ) announced the arrest of four scientists from China on claimed visa violation, including Dr. Chen Song.  A fifth scientist was arrested for similar charges in August 2020.

Dr. Chen Song was a visiting researcher at Stanford University, specializing in neurological studies and brain diseases. She came to the U.S. with her young daughter in 2018 on a J-1 visa, which is often used for scholars and researchers. 

During her visa application process, she allegedly did not disclose her affiliation with the Chinese military.

On January 7, 2021, Dr. Song was charged with one count of visa fraud.  If convicted, Dr. Song faced a maximum statutory penalty of up to 10 years in prison and a fine of $250,000.  On February 19, 2021, Dr. Song was charged additionally for obstruction of official proceedings; two counts of alteration, destruction, mutilation, or concealment of records; and making false statements to a government agency.

On July 23, 2021, Acting U.S. Attorney Stephanie M. Hinds motioned to dismiss the case against Dr. Chen Song, a visiting researcher on neurology from China at Stanford University.  On the same day, U.S. District Judge William Alsup granted the motion to dismiss.  Dr. Song's passport was returned immediately, and she travelled back to China to continue her medical practice.  

The other four visa fraud cases were also dismissed at the same time.

The five visa fraud cases including Dr. Song were identified under the China Initiative, but they were removed from the DOJ online report after their dismissals. 

Dr, Song’s defense attorney, John Hemann, spoke about her case during the October 2021 APA Justice monthly meeting. 

2021/10/05 APA Justice Monthly Meeting

John Hemann, Partner at Cooley LLP, was Dr. Song’s defense attorney. 

He served as chief of the special prosecutions and national security unit and deputy chief of the criminal division at the US Attorney’s Office for the Northern District of California. When the “China Initiative” began at the Department of Justice (DOJ) in 2018, John Hemann was literally in the room.

John Hemann spoke at the APA Justice monthly meeting on October 5, 2021.

According to John Hemann, the case of Dr. Song should never have been approached by the U.S. government as a criminal matter, echoing an earlier remark by U.S. Rep. Jamie Raskin at the meeting.  

Worse yet, Dr. Song was charged at the same time as four other Chinese doctors in an example of what can only be described as rounding up the usual suspects to fight clearly an imagined problem. None of the five were charged with trade secret violations or espionage.  And there was never any evidence of trade secret violations or espionage.

John Hemann vigorously pursued information discovery in Dr. Song’s case. The government claimed it was classified and information began to come out that even within the government, there was discomfort about the way the FBI and DOJ were handling the matter.  There were serious questions about whether it should ever have been charged in the first place.

Under the weight of these increasing disclosures, the government dismissed all the charges against Dr. Song and the other four doctors in July 2021. 

Dr. Song was able to immediately return to China where she has been reunited with her young daughter, her husband, and her family, and back to practicing medicine.

John Hemann echoed Rep. Raskin’s comments about due process and national security. There are valid concerns about national security. But those concerns cannot be manifested into targeting or profiling people of a race or national origin because it does not work in the first case. 

As a prosecutor who spent a lot of time working on national security matters, John Hemann said that profiling is not going to solve the national security problems that it is meant or allegedly motivated to solve.

It makes us less safe because it undermines exactly what makes us strongest, which is a constitutional commitment to due process. That is what makes us different. That is what makes us as a country better and more hopeful than any other country. And it all comes down to due process. And while national security, information security, and trade secret thefts are real concerns and real problems, they are not problems that can be identified by first looking at suspects and then looking for crimes.

John was doing national security cases and trade secret cases long before the China initiative.  United States v. United Microelectronics Corporation (3:18-cr-00465) was the case that launched the China Initiative.  

It was a trade secret case that was identified the old-fashioned way by first seeing evidence of an actual trade secret theft and then figuring out who committed the crime. 

John Hemann and DOJ worked very closely with the Taiwanese government. The company that employed the individuals who allegedly stole the trade secrets was a Taiwanese company.  It was worked out that the Taiwanese government would prosecute the individuals and the US government would focus on the companies. One of the companies pled guilty, and the case against the Chinese company, Fujian Jinhua Integrated Circuit Co Ltd, moved forward.

That case did not need a China initiative. That case moved forward on the evidence with John’s successors in DOJ.

On February 27, 2024, Fujian Jinhua Integrated Circuit Co Ltd was cleared of U.S. allegations that the Chinese chipmaker stole trade secrets, in a case that fanned tensions in an intensifying technology race between the United States and China.  U.S. District Judge Maxine Chesney in San Francisco found the company not guilty after a non-jury trial.

Five “Visa Fraud” Cases

The Department of Justice (DOJ) announced visa fraud charges against four of five scientists from China on July 23, 2020.  The fifth scientist, Lei Guan, was first charged in August 2020 for Destruction and Alteration of Records in a Federal Investigation with visa fraud charges added in September 2020.

The announcement of the visa fraud cases coincided with the U.S. order to close China’s consulate in Houston, accusing it to be a "spy center" to conduct spying activities with local medical centers or universities.

The five Chinese scientists are:

• Lei Guan (关磊), Visiting researcher (mathematics), University of California at Los Angeles 

• Dr. Chen Song (宋琛), Visiting researcher (neurology), Stanford University​​

• Dr. Juan Tang (唐娟), Visiting researcher (cancer), University of California at Davis 

• Xin Wang (王欣), Visiting researcher (neurology), University of California at San Francisco 

• Kaikai Zhao (赵凯凯), Doctoral candidate (machine learning and artificial intelligence), Indiana University

These five visa fraud cases were abruptly dismissed by DOJ in July 2021 without an explanation for the dismissals. 

Wyn Hornbuckle, a Justice Department spokesman issued a statement that said "[r]ecent developments in a handful of cases involving defendants with alleged, undisclosed ties to the People’s Liberation Army of the People’s Republic of China have prompted the department to re-evaluate these prosecutions...  We have determined that it is now in the interest of justice to dismiss them.”

On July 22, 2021, Reuters reported that there was "recently disclosed evidence of a report by FBI analysts that questioned if the visa application question on 'military service' was clear enough for Chinese medical scientists at military universities and hospitals." In another report by the Washington Post, an unnamed official was quoted to say that "the punishment for visa fraud typically does not exceed a year. That fact, combined with the prospect of prolonged litigation in several instances, led officials to assess that the interests of justice were best served by dropping the cases."

Upon further research, defense attorneys for Dr. Juan Tang filed a Defendant's Trial Brief and Memorandum Supporting Dismissal at Trial on July 19, 2021.  It included a section on "The FBI’s Deliberate Failure to Disclose Critical Exculpatory Evidence to the Court and to the Defense Warrants a Dismissal of this Ill-Conceived Indictment."  

"There is dissension in the FBI’s own ranks," the trial brief started.  It cited that the government intentionally did not comply with the discovery order for the trial and highlighted that "... just days ago, a heavily redacted report dated for release four months ago, on April 1, 2021, which the government did not disclose to this Court when it ruled on Dr. Tang’s Motion to Dismiss."  Exhibit A shows a FBI Background Note dated April 1, which includes a statement that investigations and expert interviews "suggest that the visa application form (DS-160) potentially lacks clarity when it comes to declaring one's military service or affiliation."

DOJ motioned to dismiss Dr. Juan Tang’s case four days before the trial was to start on July 26, 2021.

On July 12, 2021, a partially redacted draft FBI report appeared as part of an exhibit in a non-motion response filed in the case of Lei Guan.

The 28-page exhibit includes a draft white paper that provides assessments on seven cases under the "China Initiative," including the five that were dismissed.  The draft paper states that targeting of the researcher and students "likely had minimal, short-term positive impact on the technology transfer threat from PRC students, scholars, and researchers."  In addition, "[o]nly two of the arrests has a nexus to technology transfer violations, ... and none included charges related to other counterintelligence concerns." 

The operation "likely contributed to the deterioration of the FBI's delicate yet valuable relationship with some US universities by not exercising more caution before approaching PRC students."  Although there was strong advice against investigating and arresting students and researchers with the operation, "several FBI field offices proceeded with visa fraud charges for individuals who met the criteria but did not meet the threshold for a high-priority technology transfer threat."

"It is in the best national security interest of the FBI to strategically identify, target, and mitigate PRC technology transfer threats while also preserving educational opportunities in the United States for PRC students who do not pose a threat," said an unredacted portion of the FBI report.  A footnote also stated that "the FBI does not consider clinical medicine an area of concern for PRC technology transfer."

According to the exhibit, a FBI Supervisory Intelligence Analyst drafted the report as a response to a February 2021 award nomination.  She was originally included as part of the award nomination but disagreed about the "high impact" the award's nomination claimed to have made.  She did not think the arrest of the PLA students met the threshold for high impact at that time, as she assessed at an early stage the impact was minimal.  The draft was a way for her to dispute the information contained in the awards packet.  She removed herself from the award nomination.

In December 2020, John Demers, former head of the China Initiative at DOJ, and William Evanina, former chief of the counterintelligence branch at ODNI, attributed without supporting facts and evidence that more than 1,000 Chinese researchers affiliated with China's People's Liberation Army fled the U.S. after the FBI conducted interviews in more than 20 cities and the State Department closed China’s Houston consulate in July 2020.

Some of the visa fraud prosecutions were based on photos of the individuals in uniform.  However, wearing a uniform does not always imply military service.  

There are two non-armed branches in the uniformed services of the United States, including the Public Health Service which is a part of the Department of Health and Human Services and the National Oceanic and Atmospheric Administration Commissioned Officer Corps which is part of the Department of Commerce.