A lawyer for Feng “Franklin” Tao, a KU chemistry professor, said the government’s case was “based on air.”
Jurors will begin deliberations Wednesday in the case of a University of Kansas chemistry professor who prosecutors allege attempted to defraud KU and federal grant institutions by concealing his relationship with a Chinese university.
Lawyers made their final arguments Tuesday in the federal wire fraud trial of Feng “Franklin” Tao, a case that has drawn the attention of civil rights advocates, who say the prosecution is the product of a Trump-era policy that unfairly targets Asian and Asian American scientists.
That policy, since discontinued, focused on the sharing of American technological advances with the Chinese government. Tao, however, was not charged with espionage but rather six counts of wire fraud and two counts of making false statements.
In closing arguments recapping more than two weeks of testimony, lawyers drilled down on points they have made since the beginning of the case. Prosecutors reviewed a long list of emails, recorded phone conversations and other evidence, saying Tao sought to hide a full-time research job with Fuzhou University that should have been disclosed to the National Science Foundation and the Department of Energy, the granting agencies, as well as to KU.
“The fact of the matter is, this case has been about the defendant’s conduct, the defendant’s lies, the defendant’s omissions, the defendant’s misstatements,” said Assistant U.S. Attorney Donald C. Oakley. “No matter how much the defense has tried to refocus your attention, your job is to look at the defendant’s conduct.”
Oakley reminded the jury of evidence from a call Tao made to a friend seeking advice about how to handle the offer of a prestigious Chinese award that would require him to teach and run a research lab in Fuzhou. The friend told Tao he should be open about the prospect with his employer, KU, but instead Tao concealed it, Oakley said.
He cited exhibits purporting to show Tao had actively worked to set up a lab in Fuzhou and recruit students. Tao took pains to keep it secret, telling correspondents not to mention his award or put things related to it in writing, Oakley said.
Prosecutors also noted that though they did not have a copy of a signed contract between Tao and the Chinese university, the government is not required to prove Tao was paid.
“You are entitled to use your own common sense and come to your own conclusions. You know that people typically don’t work, certainly not for nine months, for free,” Oakley told the jury.
One of Tao’s defense attorneys, Peter Zeidenberg, countered, “Mr. Oakley says use your common sense. But you can’t guess and you can’t speculate.”
He argued that the government had fallen far short of proof beyond reasonable doubt.
“This case is based on air,” Zeidenberg said. “There’s nothing there. You just push and your hand goes right through.”
Zeidenberg recalled testimony from grant program managers, who said they were satisfied with Tao’s work. None complained of any loss from the alleged fraud, he said.
“In almost three years of investigation, two weeks of evidence, twenty-eight government witnesses and hundreds and hundreds of exhibits and not one word about loss.”
Grants go directly to the university and not to professors, a fact Zeidenberg said FBI investigators failed to learn.
“The government wants you to believe Dr. Tao lied and cheated,” he said, noting the money benefited KU. “Then he worked sixteen hours a day on those grants. What kind of a fraud scheme is that?”
Zeidenberg said the government failed to show any false statements were made to granting agencies and that in fact the grants applications were submitted before the job at Fuzhou was offered. Tao was not required to report pending grants, he said. Moreover, the Fuzhou affiliation was listed publicly on progress reports on three of Tao’s papers, he said.
Zeidenberg also faulted the FBI investigation that led to Tao’s arrest. The agency took the word of a woman who accused Tao of being a tech spy after trying to extort him, he said.
“They pinned their ears back and put their blinders on and focused on getting Dr. Tao,” rather than doing basic research about how the grant process works, Zeidenberg said.
“The government is apparently unwilling or unable to acknowledge or admit they made a huge mistake here.”
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