Monday, April 17, 2006

Theft of Trade Secrets—Pretrial Diversions

A Japanese scientist and her Chinese husband have reached an interesting pretrial deal with prosecutors that will spare them being indicted on criminal charges.[1] Kayoko Kimbara and Zhu Jiangyu have reportedly “admitted to removing at least 20 cartons of materials from a Harvard Medical School laboratory, including research data and various biological materials, without permission and shipping them to the University of Texas in San Antonio where [Mr.] Zhu had accepted a position to have his own lab.”[2]

The two individuals were arrested by the FBI on June 19, 2002 on , , interstate transportation of stolen property, and “by collaborating with a Japanese company while working at the Harvard Medical School cell biology department.”[3]

The materials, which the two individuals believed were their personal belongings, allegedly contain “reagents which were made and used to develop immunosuppressive drugs to control organ rejection and to study genes that regulate a key enzyme.”[4] Mrs. Kimbara and Mr. Zhu deny the economic espionage allegations.[5]

Per the terms of the agreement between the couple and federal prosecutors, an indictment has been delayed for 12 months, provided they do not make any statements contrary to court filings and that they do not violate any federal, state, or local laws.[6] This type of agreement is known as a pretrial diversion [hereinafter PTD]. It is a rarely used plea deal, which means that the two were charged by Criminal Complaint, arrested, and then they pleaded guilty to a Criminal Information; sentencing is deferred for 12 months, and if they meet the terms of the conditions, the charges against the couple will be dropped.[7] This decision was likely driven by public policy concerns because their research has national and global implications—incarcerating the couple would stall important research, and deporting them would mean that the research would either be picked up by other governments or stopped altogether.

The US Attorney for any given District is allowed to offer pretrial diversion to “any individual against whom a prosecutable case exists,” subject to five provisos: the offense should not be diverted to the State, the person may not have two or more prior felony convictions, he may not be an addict, he cannot be a current or former public official accused of violating the public trust, and the offense cannot be related to or foreign affairs.[8] The objectives of PTD are to prevent future criminal activity, to save prosecutorial and judicial resources for concentration on major cases, and to provide restitution to communities and victims of crime.[9]


[1] , Kyodo News (via Yahoo!), Apr. 15, 2006.
[2] Id.
[3] Id.
[4] Id.
[5] Id.
[6] Id.
[7] See US DOJ, Criminal Resource Manual: Pretrial Diversion, , Oct. 1997.
[8] US Attorney’s Manual, Pretrial Diversion Program , Oct. 1997.
[9] Id. Introduction .

posted by McNabb Associates, P.C. @ 1:15 PM