Stuart Gasner Keker & Van Nest partner ()
SAN FRANCISCO — The U.S. attorney’s office has dropped a key witness from its economic espionage case against an Oakland engineer after the defense accused the China expert of plundering parts of his analysis from Wikipedia.
James Feinerman, a professor of Asian legal studies at Georgetown University Law Center, had been slated to testify about China’s efforts to steal technology from the West. But the government on Thursday rested its case against Walter Liew, who is on trial for allegedly selling details of DuPont’s manufacturing processes to China, without calling Feinerman.
The change to the government’s playbook creates an opening for the defense, which launches its case next week. In a motion for acquittal filed Thursday, Liew’s lawyers at Keker & Van Nest seized on the absence of the expert as a shortcoming in the government’s case.
But prosecutors may have had little choice about proceeding without Feinerman. The law professor had been tarnished by revelations three months before trial that his disclosure contained dozens of sen­tences lifted from Wikipedia with few modifications, and U.S. District Judge Jeffrey White, who is presiding over the trial, rejected the government’s eleventh hour request to replace Feinerman.
“The government is accusing someone of a crime,” said Michael Li-Ming Wong, a former federal prosecutor who is now a white- collar partner at Gibson, Dunn & Crutcher. “So the government itself has to be clean as a whistle.”
Feinerman’s absence also clears the stage for the defense’s China expert, Donald Lewis, who has taught at Stanford Law School. Jurors may give his opinions more weight without conflicting testimony from another expert, Wong said. “The ‘battle of the experts’ may be a walkover,” he said.
Liew’s case is among the first economic espionage cases to go to trial and is one of the only significant white-collar prosecutions charged under U.S. Attorney Melinda Haag. He is accused of stealing DuPont’s proprietary method for producing titanium dioxide, a commercially valuable white pigment. Liew, who was arrested in 2011, also faces counts of trade secret theft, tax evasion and witness and evidence tampering.
In a motion filed Feb. 6, Keker partner Stuart Gasner argued that without Feinerman, the government can’t prove that Liew acted to benefit a foreign government or “foreign instrumentality”—a requirement for economic espionage charges. The professor, Gasner noted, planned to testify that the Chinese companies Liew did business with were owned and controlled by the Chinese regime.
“The government has failed to present evidence sufficient to sustain conviction of Mr. Liew,” the brief states.
Lawyers rarely call every witness they disclose to the other side, and Feinerman was one of many witnesses Assistant U.S. Attorneys John Hemann and Peter Axelrod did not ultimately call during their monthlong case-in-chief. Moreover, criminal cases typically turn on raw evidence rather than the opinions of experts, several former federal prosecutors noted.
Firing back at Keker’s motion for acquittal Friday morning, prosecutors argued that they proved Liew’s intent to benefit the Chinese government with the defendant’s own words. They pointed to an exhibit in which Liew explains that he entered the business of titanium dioxide at the request of the Chinese government, among other pieces of evidence introduced at trial.
The defense attacked Feinerman’s credibility in October with a motion to exclude his testimony. Gasner wrote that 13 of the 19 pages of Feinerman’s expert disclosure contained material “copied verbatim, without any attribution of any kind” from Wikipedia.
“Feinerman’s pervasive plagiarism from this unreliable and error-prone source, which has been rejected by federal courts all over the country, casts serious doubt on the reliability of his entire testimony,” Gasner wrote in the motion.
Feinerman did not respond to a request for comment.
Responding to the defense motion, prosecutors acknowledged in October that Feinerman “utilized language from Wikipedia as a concise English-language summary of his opinions on certain topics” but defended his expertise.
“With no ability to challenge Professor Feinerman’s qualifications, defendants instead attempt to discredit him through an attack on the sourcing of his expert disclosure,” Axelrod and Hemann wrote in court papers.
White denied the defense request but wrote that he was “extremely troubled” by the expert’s use of Wikipedia. He indicated in his order that while he would allow Feinerman to testify, he would not shield the professor from questions about his use of the online encyclopedia.
A week later, Hemann sought to replace Feinerman, suggesting that might allay defense concerns about his testimony. “We’re concerned about getting into what is a sideshow over the veracity of a distinguished professor on facts that are so objective that they are cited and sourced in Wikipedia, just to be candid about it,” Hemann told White, according to a transcript of the conference.
White rejected the request, insisting that it was too late for such a switch. Given the judge’s stance, prosecutors were wise to spare Feinerman from a bruising cross-examination, said Cristina Arguedas of Arguedas, Cassman & Headley in Berkeley.
“It would have been the best day that the cross-examiner ever had in court,” she said.
Liew’s lawyers must have faced a tough choice over when to deploy the smoking gun, said Greenberg Traurig partner Carolyn McNiven. Withholding the expert’s use of Wikipedia until he was on the stand would have been a gamble. But it could have paid off with an explosive cross-examination, she noted.
“That would have been a made-for-TV moment,” McNiven said.
Defense lawyers were hard-pressed to recall another instance in which an expert had been accused of raiding Wikipedia. Attorneys on both sides of the aisle already vet their experts vigorously, reviewing their publications and testimony in other cases, said Martha Boersch of Boersch Shapiro in San Francisco, another former federal prosecutor. Wong of Gibson Dunn wondered whether it was time for litigators to update their procedures for the digital age.
“Maybe in the future it’s incumbent on everyone to just Google everything,” he said.
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