U.S. v. Fei Ye

• Decision Date: 02 February 2006
• Docket Number: No. 05-10073.,05-10073.
• Citation: 436 F.3d 1117
• Court: U.S. Court of Appeals — Ninth Circuit
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. FEI YE, aka Ye Fei; Ming Zhong, aka Zhong Ming aka Andy Zhong, Defendants-Appellees.

Page 1117

436 F.3d 1117

UNITED STATES of America, Plaintiff-Appellant, v. FEI YE, aka Ye Fei; Ming Zhong, aka Zhong Ming aka Andy Zhong, Defendants-Appellees.

No. 05-10073.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted January 9, 2006.

Filed February 2, 2006.

Kyle Waldinger, Assistant United States Attorney, San Francisco, CA, for the plaintiff-appellant.

Paul B. Meltzer, Santa Cruz, CA, for defendant-appellee Fei Ye.

Appeal from the United States District Court for the Northern District of California, James Ware, District Judge, Presiding. D.C. No. CR 02-20145 JW.

Before NOONAN, TASHIMA, and W. FLETCHER, Circuit Judges.

TASHIMA, Circuit Judge.

Defendants are charged with possessing stolen trade secrets in violation of the Economic Espionage Act of 1996 ("EEA"), 18 U.S.C. § 1831 et seq. The district court granted defendants' motion for pre-trial depositions of several expert witnesses whom the government intends to call at trial. The government brings this interlocutory appeal under 18 U.S.C. § 1835, arguing that the district court erred in granting the motion because the order authorizes and directs the disclosure of trade secrets, and because it is inconsistent with the Federal Rules of Criminal Procedure and the Jencks Act. In the alternative, the government maintains that the district court's order is clearly erroneous and warrants mandamus relief. While we conclude that we do not have appellate jurisdiction under § 1835, we find this case appropriate for mandamus relief.

JURISDICTION

We have jurisdiction over an interlocutory appeal under the EEA when the district court issues "a decision or order . . . authorizing or directing the disclosure of any trade secret." 18 U.S.C. § 1835. As discussed below, § 1835 does not provide us with jurisdiction over this appeal because the government had already disclosed all of the relevant trade secret materials prior to the making of the order at issue. We do, however, have jurisdiction over the government's petition for a writ of mandamus under the All Writs Act, 28 U.S.C. § 1651.

BACKGROUND

Defendants Fei Ye and Ming Zhong were arrested by federal law enforcement agents while attempting to board a flight to China at the San Francisco International Airport. Federal agents simultaneously seized various materials from defendants' personal luggage, homes, and offices, alleged to be trade secrets stolen from four American technology companies. Defendants were subsequently charged with possessing stolen trade secrets with the intent to benefit the People's Republic of China.¹

Prior to trial, defendants filed a motion for a bill of particulars, for discovery, and to dismiss the indictment. At the hearing on this motion, the prosecutor explained that "all the trade secret materials" in the case had already been provided to defendants pursuant to a protective order months before the indictment was filed. The prosecutor further noted that these materials "discuss and explain what the trade secrets are" and "why they are trade secrets," and that the materials estimated "the values of many of these trade secrets." The district court denied the motion, reasoning that "the indictment explicitly identifies the trade secrets involved" for each count, and that the government had already disclosed more than 8,800 pages of materials, which "describe the substance of each alleged trade secret."

Defendants then filed a motion to depose government witnesses prior to trial. During the hearing on this motion, counsel for Zhong admitted that he was seeking to use the Federal Rules of Criminal Procedure for discovery purposes:

And [the prosecutor] accuses us of using Rules 15 and 16 to seek discovery.

I don't know whether [co-defendant's counsel] agrees with this, but I do. That's exactly what we're trying to do. We're trying to find a rule that guarantees us notice in this case and whether it be Rule 15, Rule 16, or the Court's inherent power to make this workable, I think the Court clearly has the ability to fashion a remedy.

Defense counsel also acknowledged that he wanted the depositions so that defendants could obtain information on "what exactly is being alleged to be the trade secret and why it is a trade secret in advance of trial." The government opposed the motion, arguing that the prospective deponents "will be available at trial," and that the Federal Rules of Criminal Procedure do not permit pre-trial depositions for discovery purposes.

The district court granted defendants' motion, reasoning that "the fairness and efficiency of the trial process" amounted to "exceptional circumstances" under Rule 15.² The government's motion for reconsideration was denied, and the government now brings this interlocutory appeal/petition for mandamus.

DISCUSSION

I. Jurisdiction under 18 U.S.C. § 1835

As a threshold matter, defendants contend that we lack jurisdiction to hear the government's interlocutory appeal under § 1835 because the district court's order does not mandate the disclosure of any trade secret materials that have not already been previously disclosed by the government. We agree.

Section 1835 provides:

In any prosecution or other proceeding under this chapter, the court shall enter such orders and take such other action as may be necessary and appropriate to preserve the confidentiality of trade secrets, consistent with the requirements of the Federal Rules of Criminal and Civil Procedure, the Federal Rules of Evidence, and all other applicable laws. An interlocutory appeal by the United States shall lie from a decision or order of a district court authorizing or directing the disclosure of any trade secret.

18 U.S.C. § 1835. The precise scope of our jurisdiction under § 1835 is an issue of first impression.³

"The starting point for our interpretation of a statute is always its language." Cmty. for Creative Non-Violence v. Reid, 490 U.S. 730, 739, 109 S.Ct. 2166, 104 L.Ed.2d 811 (1989). "If the plain language of a statute renders its meaning reasonably clear, [we] will not investigate further unless its application leads to unreasonable or impracticable results." United States v. Stephens, 424 F.3d 876, 882 (9th Cir.2005) (internal quotation marks and citation omitted).

The plain language of the EEA indicates that the government can file an interlocutory appeal pursuant to § 1835 only where a district court's order actually directs or authorizes the disclosure of a trade secret. See 18 U.S.C. § 1835. Black's Law Dictionary defines "disclosure" as "[t]he act or process of making known something that was previously unknown." BLACK'S LAW DICTIONARY 477 (7th ed.1999); see also AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE (4th ed.2000) (defining disclosure as, "[t]o make known (something heretofore kept secret)"). Here, the district court's order did not provide for the disclosure of any trade secret materials. In its opening brief in this court, the government acknowledges that it had already turned over all relevant trade secret materials and documents:

At the hearing on this motion on October 20, 2003, the prosecutor noted that "all the trade secret materials" in the case had been provided to the defendants pursuant to a protective order months before the indictment was filed, that these materials "discuss and explain what the trade secrets are" and "why they are trade secrets," and that the materials even estimated "the values of many of these trade secrets."

Because the purpose of the district court's order was only to clarify exactly which materials the government contends constitute the protected trade secrets, and all relevant materials had already been turned over, the district court's order does not direct or authorize the "disclosure" of trade secrets as required by the plain language of § 1835. Cf. Hsu, 155 F.3d at 193-94 (asserting jurisdiction over interlocutory appeal under § 1835 where district court ordered government to turn over trade secret materials that had not been previously "disclosed" to defendants).

Although we need not go beyond the plain language of § 1835, the legislative history of the EEA supports this interpretation. See H.R. REP. No. 104-788, at 13 (1996), reprinted in 1996 U.S.C.C.A.N. 4021, 4032. The section-by-section analysis explains that "[t]he intent of [§ 1835] is to preserve the confidential nature of the information and, hence, its value. Without such a provision, owners may be reluctant to cooperate in prosecutions for fear of further exposing their trade secrets to public view, thus further devaluing or even destroying their worth." Id. Where the government concedes that it has previously disclosed all of the trade secret materials pursuant to a protective order, and the ordered depositions are subject to the same protective order, the underlying rationale for granting immediate appellate review is absent because there is no risk of "further exposing trade secrets to public view." Id.

The government also argues that this Court has jurisdiction over the interlocutory appeal because the district court's order violates § 1835's requirement that such orders be consistent with the Federal Rules of Criminal Procedure and other applicable laws. By its plain language, however, § 1835 grants interlocutory appellate jurisdiction only when a district court's order authorizes or directs the disclosure of a trade secret. See 18 U.S.C. § 1835. As discussed supra, the district court's order does not direct the disclosure of a trade secret. We conclude therefore that we lack jurisdiction over the government's interlocutory appeal under § 1835. Accordingly, the government's appeal must be dismissed.

II. Mandamus relief under 28 U.S.C. § 1651

The government alternatively petitions for a writ of mandamus pursuant to the All Writs Act, 28 U.S.C. § 1651. See Miller v. Gammie, 335 F.3d 889, 895 (9th Cir.2003) (en banc) (treating notice of appeal as a petition for a writ of mandamus). The Supreme...