Federal appellate court tosses final conviction in case against former KU tenured professor

by Tim Carpenter, Kansas Reflector
July 12, 2024

TOPEKA — The U.S. District Court of Appeals reversed Friday the false-statement conviction of a former University of Kansas tenured professor and brought to an end deconstruction of the federal government’s prosecution of the chemical engineering researcher based on a secret relationship with Fuzhou University in China.

Feng Tao, who was involved with federally funded research, was originally charged in 2019 with 10 crimes by the U.S. Department of Justice. The case was brought under the President Donald Trump administration’s now-defunct “China Initiative” in which alleged spies in U.S. research and industry fields were accused of espionage. It was launched in 2018, but terminated in 2022 due to assertions it operated on false evidence provided by the FBI and amounted to racial profiling of Chinese American citizens and people with Chinese ancestry.

In Tao’s case, he was accused of failing to disclose on a KU form his association with the Chinese university. In 2022, a jury found him guilty on three wire-fraud counts and one false-statement count, but acquitted him on four counts.

A U.S. District Court judge decided after the trial to acquitt Tao on the wire-fraud charges, leaving only the false-statement conviction, because the “government failed to prove Tao engaged in a fraudulent scheme to deprive KU, the National Science Foundation or the U.S. Department of Energy of money or property.

In 2023, Tao was sentenced to time served and two years of supervised release. On the remaining fase-statement verdict, Tao appealed. The three-judge panel of the 10th Circuit U.S. Court of Appeals reversed that conviction and ordered the district court to enter a judgment of acquittal.

U.S. Court of Appeals Judge Nancy Moritz, who is a former member of the Kansas Supreme Court, wrote in the majority opinion that the federal government provided insufficient evidence to prove Tao’s false statement was material to any decision by the Department of Energy or the National Science Foundation.

The court’s 2-1 majority said research funding decisions by these agencies were made prior to Tao’s presentation of the form concealing his ties to the Chinese university. Additionally, the appellate court found no evidence Tao’s relationship with Fuzhou University created a disclosable financial interest under NSF policy.

“We agree with Tao that the government offered insufficient evidence for a rational jury to find that his statement to his employer was material to any DOE or NSF decisions,” Moritz said. “We reverse Tao’s conviction.”

In 2019, the Justice Department had relied on information provided by one of Tao’s former colleagues — a visiting scholar at KU angry with Tao amid an authorship dispute. The angry colleague had demanded $300,000 from Tao or he would tell the FBI that Tao was a spy.

Rebuffed by Tao, the Court of Appeals decision says the former colleague submitted an anonymous tip to the FBI accusing Tao of espionage and later impersonated others to make additional allegations.

The FBI investigation found no evidence of espionage involving Tao. However, the FBI concluded Tao had potentially accepted a second full-time job at Fuzhou University and hid that information from KU. He was charged with making false statements and wire fraud based on contents of an email related to the possibility he would enter a contract to teach in China. KU promptly banned Tao from campus in Lawrence.

Federal appellate Judge Mary Beck Briscoe, who had served on the Kansas Court of Appeals and graduated from KU’s law school, dissented from the majority opinion. She said Tao’s failure to disclose the possibly he would contract with the Chinese university was material even though federal research funding decisions linked to the case were made before he failed in 2018 to inform KU in writing of the association.

“This form not only required Tao to certify that his answers were ‘true, correct and complete,’ but also to report any changes to the form as soon as they became known to him,” Briscoe wrote. “I would also reject Tao’s remaining arguments for reversing his conviction or remanding for a new trial and would affirm his conviction.”

Tao was born in China and earned an undergraduate degree at Chongqing Normal University. His doctorate in physical chemistry was completed at Princeton University. He conducted postdoctoral research at University of California at Berkeley.

He was a Miller associate professor in KU’s department of chemical and petroleum engineer from 2014 to 2019. He worked on energy chemistry, nanoscience, surface science and catalysis. He published more than 180 papers in international journals.

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