Case 2:19-cr-20052-JAR Document 83 Filed 08/14/20 Page 1 of 24

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
UNITED STATES OF AMERICA,
Plaintiff,
v.
FENG TAO
a/k/a “Franklin Tao,”
Defendant.

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Case No. 19-20052-JAR-JPO

MEMORANDUM OF DR. FRANKLIN TAO IN SUPPORT OF HIS
MOTION TO DISMISS THE SECOND SUPERSEDING INDICTMENT
DUE TO THE GOVERNMENT’S FALSE, MISLEADING, AND PREJUDICIAL
STATEMENTS TO THE GRAND JURY

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TABLE OF CONTENTS
Page
INTRODUCTION ......................................................................................................................... 1
BACKGROUND ........................................................................................................................... 3
A.

The government charged Dr. Tao with several offenses based on his
alleged failure to disclose to KU in his employee Conflict of Interest forms
that he had accepted a position at another university. ........................................... 3

B.

The Conflict of Interest forms included specific disclosure criteria, and did
not require disclosure of all outside positions........................................................ 4

C.

The government misled the grand jury about the Conflict of Interest form
disclosure criteria in order to persuade the grand jurors to return an
indictment against Dr. Tao for failing to disclose the alleged position at
FZU. ....................................................................................................................... 6

D.

The FBI Case Agent misled the third grand jury about Dr. Tao’s KU
responsibilities in the spring of 2019 in order to obtain the pending
Indictment. ............................................................................................................. 8

E.

The prosecutor made inappropriate statements to the third grand jury to
obtain the pending Indictment. ............................................................................ 10

ARGUMENT............................................................................................................................... 12
I.

The Court should dismiss the Second Superseding Indictment because the
government’s materially false and misleading testimony, and prejudicial
comments, substantially influenced the grand jury’s decision to indict. ......................... 12
A.

The Court should dismiss the Indictment if government misconduct before
the grand jury “substantially influenced” the decision to indict, or gives
rise to “grave doubt” that the decision to indict was not free of such
influence............................................................................................................... 12

B.

The FBI Case Agent’s materially false and misleading testimony, and the
prosecutor’s highly prejudicial and irrelevant questions and comments,
substantially influenced the grand jury’s decision to indict Dr. Tao, or at
least give rise to “grave doubt” that they did. ...................................................... 15

CONCLUSION............................................................................................................................ 18

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TABLE OF AUTHORITIES
Page(s)
Cases
Bank of Nova Scotia v. United States,
487 U.S. 250 (1988).............................................................................................................1, 13
In re Special Grand Jury 89-2,
143 F.3d 565 (10th Cir. 1998) .................................................................................................12
United States v. Brito,
907 F.2d 392 (2d Cir. 1990).....................................................................................................15
United States v. Brown,
5:19-CR-40081-HLT, 2020 WL 4347258 (D. Kan. July 29, 2020) ............................12, 13, 15
United States v. Cooper,
396 F. Supp. 3d 992 (D. Kan. 2019)......................................................................13, 14, 15, 18
United States v. Hillman,
642 F.3d 929 (10th Cir. 2011) .................................................................................................13
United States v. Leeper,
No. 06-CR-58A, 2006 WL 1455485 (W.D.N.Y. May 22, 2006) ............................................16
United States v. Pino,
708 F.2d 523 (10th Cir. 1983) .................................................................................................13
Statutes
18 U.S.C. § 1001..............................................................................................................................3
18 U.S.C. § 1343..............................................................................................................................3
Other Authorities
Fed. R. Crim. P. 6(e)(3)(E) ............................................................................................................12
Federal Rule of Criminal Procedure 12(b)(3)................................................................................12
Federal Rule of Criminal Procedure 52(a).....................................................................................13

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INTRODUCTION
A prosecutor has extraordinary influence over the grand jury. The prosecutor selects the
target, drafts the indictment, and determines which witnesses to examine. The prosecutor—
outside the presence of the defendant or defense counsel—can disregard most evidentiary rules,
withhold exculpatory evidence, and unilaterally decide how to advise the grand jury as to the
law. But even within these broad bounds, there are limits beyond which a prosecutor may not go.
The prosecution cannot obtain an indictment based on testimony that it knows is false or
misleading, or by unfairly inflaming the grand jury against the accused, as these types of
misconduct infringe upon the grand jury’s ability to exercise independent judgment. If the
government commits these types of misconduct, the court should dismiss the indictment if the
misconduct “substantially influenced” the grand jury’s decision to indict, or gives rise to “grave
doubt” that the decision was not free from influence. Bank of Nova Scotia v. United States, 487
U.S. 250, 256 (1988).
This principle warrants dismissal of the pending Indictment against Dr. Franklin Tao. The
government charged Dr. Tao with a host of federal offenses due to his alleged failure to disclose
in Conflict of Interest forms submitted to the University of Kansas (“KU”), his employer, that he
had purportedly accepted a position at another university in China, Fuzhou University (“FZU”).
To properly obtain the indictments, and putting aside the defects in the government’s legal
theory,1 the government would have needed to persuade the grand jury that Dr. Tao’s alleged
FZU position met the disclosure criteria specified in the Conflict of Interest forms, which
included monetary thresholds and a requirement that the outside position interfere with his KU

1

Dr. Tao has also filed a parallel Motion to Dismiss the Indictment for Failure to State an
Offense and Lack of Venue, submitted on the same day as the instant motion.
1

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responsibilities. But the government had no evidence that the position met that criteria, so it
committed three categories of misconduct to obtain the indictments.
First, the government deliberately mischaracterized the Conflict of Interest forms’
disclosure criteria, such that Dr. Tao’s alleged position at FZU appeared to warrant disclosure in
the forms, when it did not. The government’s sole witness, the FBI Case Agent, did not show the
grand jury the forms, and falsely testified that the Conflict of Interest forms required disclosure
of any outside position, which is contrary to the actual disclosure criteria in the forms. The
government never sought to correct or clarify this misleading testimony, which could only have
been presented by design, since the tactic was repeated before three separate grand juries over
the course of ten months.
Second, compounding the misleading testimony about the disclosure criteria, the FBI
Case Agent misrepresented and drastically overstated Dr. Tao’s KU responsibilities during the
relevant time period in order to create the misimpression that the alleged FZU position interfered
with Dr. Tao’s KU responsibilities and thus needed to be reported in the Conflict of Interest
forms. Indeed, although the FBI Case Agent had been informed by KU that Dr. Tao bought out
his spring 2019 teaching responsibilities—such that he had no such responsibilities—the case
agent, prompted by the prosecutor, falsely told the grand jury that Dr. Tao’s buy-out attempt was
unsuccessful.
Third, the government needlessly made irrelevant and highly prejudicial statements to the
grand jury that returned the pending Indictment, in an effort to inflame the grand jury against Dr.
Tao. Without any valid reason, the government elicited testimony from the FBI Case Agent that
an earlier grand jury had already found probable cause that Dr. Tao had committed crimes. This
could only have been meant to predispose the new grand jury to believing there was probable

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cause that Dr. Tao had committed crimes. Separately, the government strongly and falsely
implied to the grand jury that Dr. Tao was a spy for China.
The cumulative effect of the foregoing misconduct is that the government improperly
influenced the grand jury to indict Dr. Tao. At the very least, this misconduct gives rise to “grave
doubt” about whether the grand jury’s decision to indict Dr. Tao was free from the government’s
influence. Accordingly, Dr. Tao respectfully requests that the Court dismiss the Indictment. Due
to the pattern of misconduct, moreover, dismissal should be with prejudice.
BACKGROUND
A.

The government charged Dr. Tao with several offenses based on his alleged
failure to disclose to KU in his employee Conflict of Interest forms that he
had accepted a position at another university.

On June 24, 2020, the government filed the operative Second Superseding Indictment
(the “Indictment”), returned by a grand jury sitting in Topeka, Kansas, charging Dr. Tao with
seven counts of wire fraud, in violation of 18 U.S.C. § 1343, and three counts of making false
statements in a matter within the jurisdiction of Executive Branch agencies, in violation of 18
U.S.C. § 1001. ECF No. 77.
The legal theories among the original Indictment, the Superseding Indictment, and the
Second Superseding Indictment have varied, but the central factual allegations have remained the
same: (1) Dr. Tao allegedly accepted a position at FZU in May 2018, (2) KU’s Conflict of
Interest forms in January and September 2018 required Dr. Tao to disclose the alleged position
he took at FZU, and (3) Dr. Tao knowingly failed to disclose the position to KU in the Conflict
of Interest forms in order to defraud KU. See ECF Nos. 1, 50, 77. For each grand jury to find
probable cause, therefore, the government had to demonstrate that the Conflict of Interest form
disclosure criteria encompassed the alleged position at FZU.

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B.

The Conflict of Interest forms included specific disclosure criteria, and did
not require disclosure of all outside positions.

The January and September 2018 Conflict of Interest forms at issue in this case, attached
hereto as Exhibits A and B, included specific disclosure criteria that determined whether an
employee needed to disclose an outside position, which turned on whether the position met the
definition of a reportable “Significant Financial Interest” or a reportable “Time Commitment.”
See generally Ex. A; Ex. B.
Under “What to Disclose,” Section 1 of the Conflict of Interest forms provided
“Disclosure Criteria for Significant Financial Interests (SFI).” Ex. A at 4; Ex. B at 4. In pertinent
part, this section provided that the employee should determine whether to disclose a position as a
“Significant Financial Interest” based on the following criteria:

Ex. A at 4 (Jan. 9, 2018 COI form); Ex. B at 4 (Sept. 25, 2018 COI form)
Under this criteria, for an employee to have a reportable “Significant Financial Interest” in an
outside entity, the interest must be worth at least $5,000. Ex. A at 4; Ex. B at 4. In addition, if the
financial interest consisted of “remuneration,” such as “salary” or “other payments for services,”
the remuneration must have amounted to at least $5,000 received by the employee “in the twelve
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months preceding the disclosure.” Ex. A at 4; Ex. B at 4. Thus, if the employee received salary
through an outside position that did not amount to $5,000 in the twelve months preceding the
disclosure, the employee would have no Significant Financial Interest to report. See Ex. A at 4;
Ex. B at 4.
Also under “What to Disclose,” Section 2 provided “Disclosure Criteria for Time
Commitments in External Professional Activities.” Ex. A at 4; Ex. B at 4. In pertinent part, this
section provided that the employee should determine whether to disclose a position as a “Time
Commitment” based on the following criteria:

Ex. A at 4 (Jan. 9, 2018 COI form); Ex. B at 4 (Sept. 25, 2018 COI form)
Under this criteria, for an employee to have a reportable “Time Commitment in External
Professional Activities,” the person must have a current time commitment (i.e., “with which you
engage,” in the present tense) that “take[s] time away from [the employee’s] University
responsibilities.” Ex. A at 4; Ex. B at 4. Thus, if the employee previously engaged or might in the
future engage in external professional activities that did or could potentially take time away from
the employee’s KU responsibilities, those would not be reportable. See Ex. A at 4; Ex. B at 4.
And if the employee currently engages in personal professional activities, but the activities do
not “take time away from” the employee’s KU responsibilities, the employee would have
nothing to report. Ex. A at 4; Ex. B at 4.

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The disclosure criteria in the Conflict of Interest forms thus inform the employee about
which outside positions or affiliations he or she should disclose. To determine if the forms
required disclosure of an outside position, a grand juror would need to compare the disclosure
criteria in the forms to the details of the outside position, including the amount of remuneration
received in the preceding twelve months and whether the position interfered with the employee’s
ability to satisfy his or her KU responsibilities.
C.

The government misled the grand jury about the Conflict of Interest form
disclosure criteria in order to persuade the grand jurors to return an
indictment against Dr. Tao for failing to disclose the alleged position at FZU.

Rather than introducing the Conflict of Interest forms to the grand jury or, alternatively,
accurately describing their requirements, the FBI Case Agent—the sole witness to testify—
misled the grand jury about the disclosure criteria in the forms. He testified that the Conflict of
Interest forms required employees to disclose any outside position—irrespective of the
remuneration or time commitment involved—such that Dr. Tao would have needed to disclose
the alleged position at FZU even though the government possessed, and had presented, no
evidence that he received pay from FZU or that the alleged position interfered with his KU
responsibilities.
The FBI Case Agent’s testimony to the third grand jury fit the pattern of how the
government misled the previous two grand juries on this critical point, demonstrating that it was
not due to inadvertence or mistake. During the first grand jury hearing, on August 21, 2019, the
FBI Case Agent testified that KU employees were required to submit “a conflict of interest
statement,” and “if you have another job as a professor somewhere … that’s a conflict of
interest,” and Dr. Tao “would have been required to disclose” the position in the forms, which
Dr. Tao “would have known” because “he signed” the forms. Ex. C, Grand Jury Hearing Tr. at
6–8, Aug. 21, 2019. The FBI Case Agent emphasized that “the crux of the scheme” was that Dr.
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Tao “knowingly and intentionally submitted [a] false statement denying a lack of conflict of
interest,” when in fact he had one. Id. at 18. The grand jury was neither shown the actual Conflict
of Interest form nor even read precisely what was required.
The government reprised this deceptive tactic during the second grand jury hearing, on
January 15, 2020.2 The FBI Case Agent testified that KU’s Conflict of Interest policy was “very
broad and allows anything – any time commitment outside of the university to be considered a
conflict of interest, any salary or significant financial interest gained outside the university as a
conflict of interest.” See Ex. D, Grand Jury Hearing Tr. at 16, Jan. 15, 2020 (emphasis added).
He testified in absolute terms that the forms required Dr. Tao to disclose “salary and payments
for services outside the university,” and that any “[c]ommitment of time and money” must also
be disclosed. Id. at 21, 38. He also testified that employees must “declare any outside
employment” in the forms, without qualification, and any “salary from somebody else,” without
mentioning that the employee only needed to disclose the salary if it amounted to $5,000 in the
preceding twelve months before the employee submitted the form. Id. at 55–56, 62. Once again,
the Conflict of Interest forms were neither introduced nor recited verbatim.
On June 24, 2020, in order to obtain the instant Second Superseding Indictment, the
government once again provided the same false and misleading testimony to the grand jury. The
FBI Case Agent testified that Dr. Tao was required “to disclose any current or prospective
situations that involved potential conflicts of interest or time as soon as they became known.”

2

The government’s deception during the January 15, 2020 grand jury appearance was even more
aggravated than on August 21, 2019, since the defense had argued in its then-pending Motion to
Dismiss that the alleged position at FZU did not meet the disclosure criteria in the forms. See
ECF No. 30 at 8–10.
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Ex. E, Grand Jury Hearing Tr. at 6, June 24, 2020 (emphasis added).3 He further testified that Dr.
Tao “falsely stated” in his January 9 and September 25, 2018 Conflict of Interest forms “that he
did not have any conflicts” of time or financial interest when in fact his alleged FZU position
constituted a conflict that the form required to be reported. Id. at 27, 29. But, just as with the
prior two grand jury hearings, the FBI Case Agent never informed the grand jury that the
Conflict of Interest forms included specific disclosure criteria that were significantly narrower
than the criteria he described, and the forms themselves were never introduced. Based on this
misleading testimony, the grand jury returned the Second Superseding Indictment, now pending
before the Court.
D.

The FBI Case Agent misled the third grand jury about Dr. Tao’s KU
responsibilities in the spring of 2019 in order to obtain the pending
Indictment.

Apart from misrepresenting the Conflict of Interest form disclosure criteria during the
third grand jury proceeding, the government also presented false testimony to the third grand
jury about Dr. Tao’s KU responsibilities in the spring of 2019, and created the false impression
that the alleged FZU position interfered with those responsibilities and created a reportable Time
Commitment that Dr. Tao needed to disclose in the forms.
During the June 24, 2020 grand jury hearing, a grand juror asked the FBI Case Agent
about Dr. Tao’s responsibilities at KU during the spring of 2019. In response, the FBI Case
Agent indicated that Dr. Tao had asked to “buy out” his teaching responsibilities in the spring of
2019, such that he would have no teaching obligations during that time:
GRAND JUROR So it says here [in the Second Superseding Indictment] that for the
3

During the June 24, 2020 hearing, the vast majority of the FBI Case Agent’s testimony
consisted of his reading from the Indictment and affirming that he was “personally familiar with
all of the facts” alleged in the Indictment and “everything that [he was] reading to the Grand
Jury,” and he had “painstakingly check[ed] every fact” alleged in the Indictment. Ex. E at 5–6.
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majority of time between December 11th, 2018 and August 20th, 2019, [Dr. Tao] traveled
to the PRC where he fulfilled his contractual obligations [at FZU]. What did KU think he
was doing during that time? Did they think he was on sabbatical or what did they think he
was doing? Because he obviously wasn’t in Lawrence.
[FBI CASE AGENT]: I don’t know that I can speak to what KU thinks he was doing. He
did request a semester buy-out from KU. … So professors … are required to teach classes.
And if they want to focus more on their research, they can request a buy-out of their course.
So that’s what was going on during that period.
Ex. E at 22–23. Apparently dissatisfied with this highly exculpatory testimony, the prosecutor
promptly interjected and encouraged the FBI Case Agent to reverse his testimony:
[PROSECUTOR]: Hang on. Let me focus that just a little bit, if you don’t mind. So he
requested a buy-out, but you didn’t say that KU granted him a buy-out, correct?
[FBI CASE AGENT]: I did not … They did not grant him a buy-out.
[PROSECUTOR]: So although Dr. Tao applied for a buy-out of his teaching obligations
that semester, KU never granted it, correct?
[FBI CASE AGENT]: That is – I can’t say – they did not grant it from the department
chair or the Provost, which is the normal process. I don’t know how it ended up, but they
didn’t.
[PROSECUTOR]: Would it be accurate to say, though, that from KU’s perspective Dr.
Tao was contractually obligated to be a full-time professor at KU during that time period?
[FBI CASE AGENT]: Yes.
Id. (emphasis added). Having received this obvious prompt, the FBI Case Agent thus reversed
his testimony and stated that although Dr. Tao had sought a buy-out from KU, his department
chair never approved it. See id.
The FBI Case Agent’s testimony was false, as the government well knew. Indeed, on
June 25, 2018, well before Dr. Tao had to submit his September 25, 2018 Conflict of Interest
form, the Chair of the Chemical and Petroleum Engineering Department at KU approved Dr.
Tao’s buy-out request for the spring of 2019, in writing, contrary to the FBI Case Agent’s
testimony. See Ex. F. Both the FBI Case Agent and the prosecutor were well aware of this fact
because KU had emailed the government a copy of the communication on December 23, 2019,
and the FBI Case Agent also interviewed Dr. Tao’s Department Chair on January 7, 2020, who
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told the FBI Case Agent that he “believed the buyout was successful.” Ex. G. According to the
FBI Case Agent’s notes from the meeting, moreover, the Department Chair stated during the
interview that he understood that Dr. Tao was not on campus during the spring of 2019, and, if
Dr. Tao were not present when he should have been, the Department Chair would have received
reports from students to that effect, but received none. Ex. H. Thus, despite both the witness and
the prosecutor knowing that Dr. Tao’s Department Chair had approved Dr. Tao’s buy-out for the
spring of 2019, the FBI Case Agent testified just the opposite to the grand jury in response to a
grand juror’s specific question on this topic. Ex. E at 22–23. This testimony led the grand jury to
falsely believe that Dr. Tao had teaching responsibilities at KU in the spring of 2019, when in
fact the government knew he did not, thereby influencing the grand jury’s judgment as to
whether Dr. Tao’s alleged position at FZU interfered with Dr. Tao’s KU responsibilities at that
time.
E.

The prosecutor made inappropriate statements to the third grand jury to
obtain the pending Indictment.

In addition to the false and misleading testimony recounted above, the prosecutor made
inappropriate comments to the grand jury during the June 24, 2020 hearing that led to the
pending Indictment.
At the outset of the June 24, 2020 hearing, without any legitimate reason, the prosecutor
elicited testimony from the FBI Case Agent that Dr. Tao had been “originally indicted” in
August 2019. Ex. E at 3. The only conceivable reason to elicit this testimony would be to help
convince the new grand jury that because a prior grand jury had already found probable cause
that Dr. Tao had committed crimes, the new grand jury should do the same.4

4

This was no fluke. The prosecutor had also told the second grand jury that Dr. Tao had been
indicted by the first grand jury. See Ex. D at 3 (“Q. And you presented an indictment to a
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Also during the June 24, 2020 grand jury hearing, the FBI Case Agent gave the false
impression that the Department of Justice believed Dr. Tao was a spy for China. At the
beginning of the hearing, the FBI Case Agent told the grand jury that he was “assigned to the
counterintelligence squad out of Kansas City that deals with violations that you will see here.”
Ex. E at 2 (emphasis added). Of course, as most civilians appreciate, counterintelligence involves
the investigation, identification, and prosecution of spies. By testifying that Dr. Tao’s
“violations” were the business of the Counterintelligence Squad, the FBI Case Agent implied to
the grand jury that Dr. Tao was a spy. Further promoting this false impression, the FBI Case
Agent then testified at length about the “rapid growth” of China, achieved through “talent plans,
which were designed to encourage the transfer of original ideas and intellectual property from
the U.S. universities to the PRC Government institutions,” and the Chinese Communist Party,
and “enhance” China’s “economic prosperity and national security.” Id. at 13–16. He also
showed the grand jury the Second Superseding Indictment, which included seven irrelevant
paragraphs about China and the Communist Party. ECF No. 75 ¶¶ 16–21. Having given the
impression that the government believed Dr. Tao was a spy for China—despite their being no
evidence that Dr. Tao improperly disclosed any information to anyone, or that he was a member
of the Communist party—a grand juror naturally asked: “So is he being charged with doubledipping or espionage?” Ex. E at 24 (emphasis added). Rather than immediately disabusing the
grand jury of the notion that the government suspected Dr. Tao to be a spy for China—an
impression that it had deliberately and artfully conveyed to the grand jury—the prosecutor

different grand jury in Topeka a few months ago, correct? A. That is correct. Q. And we’re back
today with a superseding indictment, correct? That is correct.”).
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refused to give a direct answer to this question and instead said: “Well, if you’ll give us a little
time, we’ll work our way through the rest of the Indictment. Okay? Any other questions?” Id.5
ARGUMENT
I.

The Court should dismiss the Second Superseding Indictment because the
government’s materially false and misleading testimony, and prejudicial comments,
substantially influenced the grand jury’s decision to indict.
The government’s deliberately false and misleading testimony regarding its central
factual allegations, combined with its highly prejudicial and irrelevant statements about Dr. Tao
meant to inflame the jury, substantially influenced the grand jury’s decision to return the pending
Indictment. At the very least, this misconduct gives rise to grave doubt about whether the grand
jury’s decision to indict Dr. Tao was free from the government’s improper influence. The Court
should therefore dismiss the Indictment under Federal Rule of Criminal Procedure 12(b)(3).
A.

The Court should dismiss the Indictment if government misconduct before
the grand jury “substantially influenced” the decision to indict, or gives rise
to “grave doubt” that the decision to indict was not free of such influence.

Federal Rule of Criminal Procedure 12(b)(3) “permits a criminal defendant to seek
pretrial dismissal based on ‘an error in the grand-jury proceeding.’” United States v. Brown,
5:19-CR-40081-HLT, 2020 WL 4347258, at *3 (D. Kan. July 29, 2020) (quoting Fed. R. Crim.

5

Given these improper statements, Dr. Tao has grave concerns that the prosecutor made other
inappropriate statements to the grand jury that could have influenced its decision to return the
pending Indictment. The government has largely obscured this information from the defense,
however, as it heavily redacted the prosecutor’s communications with the grand jurors from all
three grand jury hearing transcripts. If the Court declines to grant the instant Motion to Dismiss
on the existing record, therefore, the defense requests that the Court will alternatively require the
government to submit unredacted versions of the transcripts ex parte to the Court for in camera
review, so that the Court can determine if additional statements by the government may be
improper and should be disclosed to the defense. See Fed. R. Crim. P. 6(e)(3)(E). The defense
has a “particularized need” for such information in the circumstances so that it can see if
additional statements by the prosecutor may have contributed to influencing the grand jury’s
decision to indict, a need that outweighs any public interest in keeping the prosecutor’s improper
statements secret. In re Special Grand Jury 89-2, 143 F.3d 565, 570 (10th Cir. 1998).
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P. 12(b)(3)). To obtain dismissal, the defendant must demonstrate “that he was prejudiced as a
result of the error,” by showing “that the alleged error ‘substantially influenced the grand jury’s
decision to indict, or … there is grave doubt that the decision to indict was free from the
substantial influence of such violations.’” Id. (citing Bank of Nova Scotia, 487 U.S. at 256); see
also United States v. Cooper, 396 F. Supp. 3d 992, 994 (D. Kan. 2019) (noting that the prejudice
requirement “comport[s] with the harmless error inquiry prescribed by Federal Rule of Criminal
Procedure 52(a)”).
The Tenth Circuit has held that courts “may dismiss an indictment ‘for prosecutorial
misconduct which is flagrant to the point that there is some significant infringement on the grand
jury’s ability to exercise independent judgment.’” United States v. Hillman, 642 F.3d 929, 933–
34 (10th Cir. 2011) (quoting United States v. Pino, 708 F.2d 523, 530 (10th Cir. 1983)). This
includes situations where the “grand jury’s independent judgment is compromised” because “the
prosecutor’s misconduct invade[d] the grand jury’s independent deliberative process and
substantially affect[ed] its decision to indict.” Id. “The common thread” in cases where dismissal
is appropriate “is that they require a showing the government deliberately attempted to influence
the grand jury with false testimony.” Cooper, 396 F. Supp. 3d at 994.
Dismissal is appropriate in these cases in part because the government is partially
entrusted with maintaining the historic independence of the grand jury, which has eroded over
time, and courts must ensure that the government strictly does so. As the Second Circuit
explained in United States v. Hogan:
It is true of course that prosecutors, by virtue of their position, have gained such
influence over grand juries that these bodies’ historic independence has been
eroded. After all, it is the prosecutor who draws up the indictment, calls and
examines the grand jury witnesses, advises the grand jury as to the law, and is in
constant attendance during its proceedings. Nonetheless, there remain certain
limitations on the presentation that a prosecutor may make to the grand jury. In fact
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the gain in prosecutors’ influence over grand juries is all the more reason to insist
that these limitations be observed strictly. Due process considerations prohibit the
government from obtaining an indictment based on known perjured testimony.
Courts have also held that a prosecutor may not make statements or argue in a
manner calculated to inflame the grand jury unfairly against an accused. Under the
applicable guidelines prosecutors have an ethical obligation strictly to observe the
status of the grand jury as an independent legal body. In short, a prosecutor as an
officer of the court is sworn to ensure that justice is done, not simply to obtain an
indictment.
712 F.2d 757, 759–60 (2d Cir. 1983) (citations omitted).
For example, this past year in United States v. Cooper, Judge Crabtree dismissed an
indictment charging a defendant with aggravated sexual abuse because a witness made a
misrepresentation to the grand jury about the results of an alleged victim’s forensic exam, which
the prosecutor did not correct. 396 F. Supp. 3d at 993, 997. The witness falsely testified that the
results of the exam “were indicative of … some form of penetration,” and the prosecution, which
had access to the results, “did not correct [the agent’s] testimony during the grand jury
proceedings.” Id. at 993, 995–96. The government argued that the defendant suffered no
prejudice, because the agent also testified about the alleged victims’ reports of the abuse, but the
court rejected this argument, finding that the false testimony regarding penetration went “directly
to an element” of the charged crime, giving the court “grave doubt” about “whether the grand
jury’s decision was free from [the agent’s] uncorrected false statement.” Id. at 996.
Similarly, in United States v. Peralta, a federal district court dismissed an indictment
after the defense learned at trial that the sole case agent to testify before the grand jury had made
inaccurate statements based on hearsay. 763 F. Supp. 14, 21 (S.D.N.Y. 1991). The court
concluded that, in conjunction with misleading statements of law made by the prosecutor to the
grand jury, the agent’s inaccurate hearsay testimony to the grand jury “seriously prejudiced” the
defendant, warranting dismissal. Id. at 21. In reaching its conclusion, the court in Peralta also
expressed serious concern with the government’s practice of presenting testimony of only a
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single case agent, which may appear “smooth, well integrated and consistent, making even weak
cases appear strong,” but “threatens the independence of the grand jury function” and is also
“indicative of an unduly casual attitude with respect to the presentation of evidence to a grand
jury.” Id. at 20 (internal quotation marks omitted); accord United States v. Brito, 907 F.2d 392
(2d Cir. 1990).
B.

The FBI Case Agent’s materially false and misleading testimony, and the
prosecutor’s highly prejudicial and irrelevant questions and comments,
substantially influenced the grand jury’s decision to indict Dr. Tao, or at
least give rise to “grave doubt” that they did.

Applying the principles set forth above, the Court should dismiss the pending Indictment
because the government “deliberately attempted to influence the grand jury” with the FBI Case
Agent’s false and misleading testimony, Cooper, 396 F. Supp. 3d at 994, and through the
prosecutor’s irrelevant and highly prejudicial questions and comments about Dr. Tao, all during
the June 24, 2020 hearing. Individually and cumulatively, this misconduct “substantially
influenced” the grand jury’s decision to indict Dr. Tao, or at least gives rise to “grave doubt” that
it did. Brown, 2020 WL 4347258, at *3.
First, the FBI Case Agent’s testimony that the Conflict of Interest forms required Dr. Tao
to disclose any outside position—and his concealment of the actual Conflict of Interest forms
and their specific disclosure criteria—left the grand jury with the false impression that the
Conflict of Interest forms required Dr. Tao to disclose his alleged position at FZU, without
needing to know the specific compensation Dr. Tao received, or whether the position took time
away from Dr. Tao’s KU responsibilities. In reality, however, the forms did not require
disclosure of any outside position; they required disclosure of an outside position only if Dr. Tao
had received $5,000 or more from the position in the twelve months preceding the disclosure (the
disclosure criteria for a reportable “Significant Financial Interest”), or if the position took time
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away from his KU responsibilities (the disclosure criteria for a reportable “Time Commitment”).
The government misrepresented the disclosure criteria because it had no evidence that showed
that the alleged FZU position satisfied the disclosure criteria. This was no innocent mistake. The
government had repeated this same tactic before three consecutive grand juries over a ten-month
period. See Ex. C at 6–8; Ex. D at 16, 21, 38, 55–56, 62.
Second, this misleading testimony was compounded when the FBI Case Agent provided
false testimony about Dr. Tao’s responsibilities at KU in the spring of 2019, giving the false
impression that Dr. Tao’s alleged FZU position interfered with those purported teaching duties
and thus needed to be reported in the Conflict of Interest forms. The FBI Case Agent falsely
testified that Dr. Tao’s Department Chair had rejected his buy-out request for the spring of
2019—even though the FBI Case Agent and the prosecutor had both documentary and
testimonial evidence that this was untrue—in order to persuade the grand jury that Dr. Tao’s
alleged work at FZU must have conflicted with his KU responsibilities and created a significant
conflict of interest.
Third, the prosecutor’s comment during the June 24, 2020 grand jury hearing—to a brand
new grand jury—that Dr. Tao had already been indicted served to unfairly prejudice and inflame
the grand jury against Dr. Tao. There was no valid reason to tell the new grand jury that a prior
grand jury had already found probable cause to indict Dr. Tao for federal crimes. This comment
had the effect of predisposing the new grand jury to indict Dr. Tao based on the prior grand
jury’s probable cause determination. See, e.g., United States v. Leeper, No. 06-CR-58A, 2006
WL 1455485, at *4 (W.D.N.Y. May 22, 2006) (reasoning that the new grand jury was “most
certainly predisposed to indict after hearing that a prior grand jury—upon hearing the same
evidence—had found sufficient probable cause to indict”). And that prior probable cause finding

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was itself flawed, as discussed above. This, too, was no innocent mistake, as the same prosecutor
had made a substantially similar comment to the second grand jury during the January 15, 2020
hearing in order to obtain that indictment. See Ex. D at 3.
Fourth, the FBI Case Agent and the prosecutor’s collective statements to the grand jury
deliberately gave the false impression that Dr. Tao was a spy for China, also prejudicing Dr. Tao
and unfairly inflaming the grand jury against him. The FBI Case Agent told the grand jury that
he was part of the Counterintelligence Squad, which most people understand to mean he tries to
identify and prosecute spies. He then told the grand jury that the Counterintelligence Squad
“deals with violations you will see here,” Ex. E at 2, implying that Dr. Tao was a spy for China.
Moreover, the FBI Case Agent testified, and showed seven paragraphs of an Indictment that
alleged, that China had used talent programs to recruit scientists who might steal intellectual
property and transfer it to China and the Chinese Communist Party, Ex. E at 13–16; ECF No. 75
¶¶ 16–21, even though those allegations had nothing to do with the evidence presented against
Dr. Tao. The testimony had its intended effect, as a grand juror asked whether Dr. Tao was
accused of “espionage.” Ex. E at 24. Rather than cure the obvious and prejudicial misimpression,
the prosecutor refused to answer directly, permitting the suspicion to infect the proceedings. Id.
Thus, the government deliberately led the grand jury to conclude that Dr. Tao was believed by
the government to be a spy for China who had stolen intellectual property from KU, which is
false. This implicit accusation was extraordinarily prejudicial to Dr. Tao, as the grand jury would
naturally have believed that if it did not indict him on the fraud and false statements charges, it
would be letting a Chinese spy, who had already been indicted once before, go free in the midst
of a heated trade war with China. The cumulative effect of this testimony was thus devastating.

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Like in Cooper, the FBI Case Agent’s false and misleading testimony about the
disclosure criteria in the Conflict of Interest forms, and about Dr. Tao’s KU responsibilities in
the spring of 2019, severely prejudiced Dr. Tao because the false testimony went “directly to an
element” of the charged offenses. Cooper, 396 F. Supp. 3d at 996. Specifically, the government
used this false and misleading testimony to convince the grand jury that Dr. Tao’s Conflict of
Interest forms included misrepresentations, which formed the basis for its charges, when in fact
they did not. If the government had accurately described the disclosure criteria in the Conflict of
Interest forms, the grand jury would likely have asked if there was evidence that FZU had paid
Dr. Tao $5,000 or more in the twelve months preceding his submission of a Conflict of Interest
form, or if the alleged FZU position had interfered with Dr. Tao’s KU responsibilities. But by
hiding the forms and their criteria from the grand jury, the government avoided these questions,
which otherwise would have prevented it from establishing probable cause. The government’s
statements that Dr. Tao had already been indicted by a prior grand jury, and its insinuations that
he was a spy for China, poured gasoline on the fire, inflaming the grand jury against Dr. Tao.
Thus, just as in Cooper, the government’s misconduct either “substantially influenced” the grand
jury’s decision to indict, or at least gives rise to “grave doubt” that its decision was not free from
the government’s improper influence.
Accordingly, because the government infringed upon the grand jury’s independence by
deliberately presenting materially false and misleading testimony, and making irrelevant and
highly prejudicial statements about Dr. Tao meant to unfairly inflame the jury against him, the
Court should dismiss the pending Indictment.
CONCLUSION
As the court stated in Hogan, “a prosecutor as an officer of the court is sworn to ensure
that justice is done, not simply to obtain an indictment.” 712 F.2d at 760. The government in this
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case disregarded that cornerstone of our criminal justice system, which protects the rights of the
accused while ensuring that the citizenry has confidence in the propriety of the grand jury system
as a whole.
With the government’s misconduct exposed, it is incumbent upon the Court to safeguard
Dr. Tao’s rights and ensure that confidence in the grand jury system remains strong, by
dismissing the pending Indictment with prejudice. Dismissal should be with prejudice because,
in addition to the reasons stated in Dr. Tao’s parallel Motion to Dismiss for Failure to State an
Offense and Lack of Venue filed herewith, the government has repeatedly committed
misconduct before three different grand juries to obtain indictments against Dr. Tao, protracting
this case for a year and draining Dr. Tao’s resources—all despite that an independent grand jury,
free of the government’s improper influence, never would have indicted him in the first place.
Although the existing record provides a sufficient basis for the Court to dismiss the
Indictment, if the Court is not prepared to dismiss the Indictment on the existing record, Dr. Tao
respectfully requests that the Court order the government to submit unredacted versions of the
three grand jury transcripts ex parte for in camera review by the Court. See supra note 5. That
way, the Court can determine if additional portions of the transcripts should be disclosed to the
defense, such that the defense can supplement this Motion as appropriate before the Court rules.

[Signature on following page]

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Dated: August 14, 2020

Respectfully submitted,
/s/ Thomas H. Johnson
Thomas H. Johnson #13688
Petefish, Immel, Hird, Johnson,
Leibold & Sloan, LLP
842 Louisiana
Lawrence, KS 66044
Tel: (785) 843-0450
Fax: (785) 843-0407
tjohnson@petefishlaw.com
Peter Zeidenberg
Michael F. Dearington
Laura Zell
ARENT FOX LLP
1717 K Street, NW
Washington, DC 20006
Tel: (202) 857-6000
Fax: (202) 857-6395
Peter.Zeidenberg@arentfox.com
Michael.Dearington@arentfox.com
Laura.Zell@arentfox.com
Attorneys for Defendant Franklin Tao

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CERTIFICATE OF SERVICE
I hereby certify that on this 14th day of August, 2020, I electronically filed the foregoing
Memorandum in Support of Motion to Dismiss the Second Superseding Indictment with the Clerk
of the Court using the CM/ECF system.

/s/ Thomas H. Johnson
Thomas H. Johnson