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United States v. Tao.

No. 23-3013. 7/11/2024. D.Kan. Judge Moritz. False Statement Under 18 USC § 1001(a)(2)—Materiality of Statement—University Research Funded by Federal Government—Sufficiency of Evidence.

July 11, 2024


Tao was a tenured professor at the University of Kansas (KU), where he conducted research funded by the US Department of Energy (DOE) and the National Science Foundation (NSF). A visiting scholar at KU had an authorship dispute with Tao and threatened to report him as a “tech spy” to the FBI if he refused to pay her $300,000. Tao ignored her demand, and the scholar made an anonymous tip to the FBI accusing Tao of economic espionage and later impersonated others to make additional espionage allegations. The FBI investigated the matter and found no evidence of espionage. But the FBI learned that Tao had potentially accepted a second full-time professorship at Fuzhou University in China and hid it from KU. The government charged Tao with three counts of making a materially false statement in a matter within the jurisdiction of the executive branch, in violation of 18 USC § 1001(a)(2), and seven counts of wire fraud, alleging that he fraudulently obtained federal funds. The false statement counts alleged that Tao hid his relationship with Fuzhou University in an annual institutional responsibilities form that he submitted to KU when he certified that his “report of significant financial interests and time commitments . . . [was] a true, correct, and complete statement” and that he had complied with KU’s conflict policy, despite failing to disclose his relationship with Fuzhou University. The wire-fraud counts alleged that by failing to disclose his relationship with Fuzhou University, Tao defrauded KU of his salary and the DOE and the NSF of federal grant funds. The government dismissed two counts before trial, the jury convicted on four and acquitted on four at trial, and the district court then acquitted on three posttrial, leaving one false-statement jury conviction standing for which Tao was sentenced to time served and two years of supervised release.

On appeal, Tao argued that there was insufficient evidence to support his false-statement conviction. Under 18 USC § 1001(a)(2), it is a crime to lie in any matter within the jurisdiction of the federal government’s executive branch. The statute required the government to prove that Tao knowingly and willfully made a material statement that was false, fictitious, or fraudulent concerning a matter within a federal agency’s jurisdiction. The Tenth Circuit assumed that all elements but materiality were met. The only agency decisions that the government identified on appeal were whether to fund or to continue funding Tao’s research. Accordingly, the government had to offer sufficient evidence for a rational jury to find that Tao’s statement to KU was material to a DOE or NSF decision. Here, both agencies received and funded Tao’s research proposals before he submitted his institutional responsibilities form to KU, and KU never applied for additional funding after he did so. Given the lack of evidence of an actual decision capable of being influenced by the statement, the government cannot establish materiality. Further, even assuming that KU’s conflict management responsibilities under the NSF’s conflict policy involved an NSF decision, no reasonable jury could find that Tao’s false statement could have influenced it because there was no evidence that Tao’s relationship with Fuzhou University created a disclosable financial interest requiring KU to review the relationship and determine whether it presented a conflict of interest. Therefore, the government offered insufficient evidence for a reasonable jury to conclude that Tao’s statement was material to any agency decision.

The conviction was reversed and the case was remanded for the district court to enter a judgment of acquittal.

The full opinion is available at https://www.ca10.uscourts.gov/sites/ca10/files/opinions/010111078133.pdf.

Official US Court of Appeals for the Tenth Circuit proceedings can be found at the US Court of Appeals for the Tenth Circuit website.

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