United States v. Tao

• Decision Date: 27 January 2022
• Docket Number: 19-20052-JAR
• Parties: UNITED STATES OF AMERICA, Plaintiff, v. FENG TAO, Defendant.
• Court: U.S. District Court — District of Kansas

UNITED STATES OF AMERICA, Plaintiff,
v.
FENG TAO, Defendant.

No. 19-20052-JAR

United States District Court, D. Kansas

January 27, 2022

MEMORANDUM & ORDER

JULIE A. ROBINSON, UNITED STATES DISTRICT JUDGE.

This matter comes before the Court on Defendant Feng Tao's Motion in Limine #2: to Exclude Evidence Regarding China, the CCP, Talent Plans, and Intellectual Property Theft and to Exclude or Hold a Daubert Hearing as to Proposed Expert Testimony of Glenn Tiffert (Doc. 157); Defendant's Motion in Limine #4: to Exclude Inadmissible Expert Testimony (Doc. 154); and the Government's Omnibus Motion in Limine (Doc. 156). The Court held a Daubert^[1] hearing and heard oral arguments on October 14 and 15, 2021. For the reasons detailed below, Defendant's Motion in Limine #2 is granted in part and denied in part; his Motion in Limine #4 is denied; and the Government's Omnibus Motion in Limine is granted in part, denied in part, and deferred in part.

I. Factual Background

Defendant is charged in a ten-count Second Superseding Indictment (“SSI”) with seven counts of wire fraud, in violation of 18 U.S.C. §§ 1343 and 2, and three counts of making false statements, in violation of 18 U.S.C. §§ 1001 and 2. The charges stem from allegations that Defendant, a full-time professor and researcher at the University of Kansas (“KU”), engaged in a

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scheme to defraud KU, the National Science Foundation (“NSF”), and the U.S. Department of Energy by concealing his employment as a Changjiang Distinguished Professor at Fuzhou University in the People's Republic of China (“PRC”) and his PRC research funding.

II. Defendant's Motion in Limine #2

Defendant moves in limine to exclude: (1) the testimony of Dr. Glenn Tiffert, “the government's proposed China expert, or at a minimum hold a Daubert hearing”; (2) “evidence and argument regarding the Chinese government or its goals, the Communist Party of China (CPC), talent plans, and intellectual property theft”; and (3) “evidence or argument that [Defendant] sought to benefit China or the PRC.”^[2] The Court addresses each request below.

A. Expert Testimony of Dr. Glenn Tiffert

Defendant asks the Court to exclude the proposed expert testimony of Dr. Glenn Tiffert--the Government's primary vehicle for introducing evidence about the PRC. In its Fed. R. Crim. P. 16(a)(1)(G) expert disclosure of Dr. Tiffert, the Government identifies three main topics on which he is expected to testify: (1) “[t]he PRC government's national development goals and industrial policies”; (2) “[t]he Changjiang Scholars Program . . . and related talent recruitment programs”; and (3) “[a]cademic institutions, academic bureaucracy, and censorship in the PRC.”^[3] The Government also states that Dr. Tiffert will offer testimony showing that “[c]ertain exhibits introduced at trial through other witnesses are consistent with the Defendant's participation in the [Changjiang Scholars Program] and work with Fuzhou University.”^[4]Defendant seeks to exclude Dr. Tiffert's proposed testimony under Fed.R.Evid. 702, 401, and 403.

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Whether expert testimony should be admitted is a matter committed to the court's broad discretion.^[5] Rule 702, which governs the admissibility of expert testimony, provides:

A witness who is qualified as an expert by knowledge, skill experience, training, or education may testify in the form of an opinion or otherwise if

(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

(b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case.

In Daubert v. Merrell Dow Pharmaceuticals, Inc., ^[6] the Supreme Court held that Rule 702 imposes a gatekeeping responsibility on trial courts to ensure that proposed expert testimony “is not only relevant, but reliable.”^[7] In performing this gatekeeping function, the court “generally must first determine whether the expert is qualified ‘by knowledge, skill, experience, training, or education' to render an opinion.”^[8] If the expert is sufficiently qualified, the court must next determine whether the expert's testimony has “a reliable basis in the knowledge and experience of [the relevant] discipline.”^[9]

The Supreme Court in Daubert set forth a non-exhaustive list of four factors that courts may consider in determining the reliability of the proffered expert testimony: (1) whether the theory or technique can be and has been tested; (2) whether it has been subjected to peer review and publication; (3) the known or potential error rate; and (4) its degree of general acceptance in

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the relevant scientific community.^[10] The Supreme Court has emphasized, however, that these four factors are not a “definitive checklist or test” and that a court's gatekeeping inquiry into reliability must be “tied to the facts of a particular case.”^[11] In some cases, “the relevant reliability concerns may focus upon personal knowledge or experience, ” rather than the Daubert factors.^[12] That said, “the unremarkable observation that an expert may be qualified by experience does not mean that experience, standing alone, is a sufficient foundation rendering reliable any conceivable opinion the expert may express. . . . Quite simply, under Rule 702, the reliability criterion remains a discrete, independent, and important requirement for admissibility.”^[13] Ultimately, the court's role “is to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.”^[14]

After determining that a witness is qualified to testify as an expert and that the testimony is reliable, the court must determine whether the expert testimony is sufficiently “relevant to the task at hand.”^[15] Under Fed.R.Evid. 401, evidence is relevant if “it has any tendency to make a fact more or less probable than it would be without the evidence, ” and “the fact is of consequence in determining the action.”^[16] “Relevant expert testimony must ‘logically advance[] a material aspect of the case' and be ‘sufficiently tied to the facts of the case that it will aid the

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jury in resolving a factual dispute.'”^[17] “Expert testimony which does not relate to any issue in the case is not relevant and, ergo, non-helpful.”^[18] In assessing whether expert testimony will assist the jury, the court should consider whether the testimony “is within the juror's common knowledge and experience.”^[19]

Even if the court determines that expert testimony is reliable and relevant, it may nevertheless exclude the testimony under Fed.R.Evid. 403 “if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” In the criminal context, “[t]he term ‘unfair prejudice' . . . speaks to the capacity of some concededly relevant evidence to lure the factfinder into declaring guilt on a ground different from proof specific to the offense charged.”^[20] So, the Advisory Committee Notes to Rule 403 explain, “‘[u]nfair prejudice' within its context means an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one.”^[21]

It is within the court's discretion to determine how to perform its gatekeeping function under Daubert.^[22] The most common method for fulfilling this function is a Daubert hearing,

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although it is not specifically mandated.^[23] Here, Defendant requested a Daubert hearing. This Court granted that request and held a Daubert hearing on October 15, 2021.

1. Qualifications

Defendant argues that Dr. Tiffert is not qualified to offer testimony on any of the topics listed in the Government's expert disclosure. Specifically, Defendant takes issue with the absence of any peer-reviewed publications focusing on Chinese talent programs and academia from Dr. Tiffert's curriculum vitae, noting that “his interests and publications on China are broad and varied.”^[24] Defendant contends that if Dr. Tiffert is an expert in anything, it is Chinese constitutional law, not talent programs or academia. In addressing Defendant's argument that Dr. Tiffert's qualifications are insufficiently narrow at the Daubert hearing, the Government stated: “We're not proposing Dr. Tiffert as a Changjiang Distinguished Professor expert. Frankly I don't know that anyone in academia or in the think tank industry c[ould] make much of a living if their expertise were so narrow. We're simply proposing him as someone who's qualified under [Rule] 702 and Daubert to provide the expert testimony that we've previewed for the Court.”^[25] Defendant responded that this “very telling admission” is “all the Court needs to know to exclude him as an expert.”^[26] The Court disagrees.

Defendant takes an overly narrow view of the expertise necessary to provide expert testimony. “[A] broad range of knowledge, skills, and training qualify an expert as such.”^[27] As

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long as the expert stays “within the reasonable confines of his subject area, ” the lack of specialization affects the weight of the opinion, not its admissibility.^[28] Thus, that Dr. Tiffert does not specialize in the Changjiang Scholars Program-even assuming anyone's expertise is so narrow--does not render him unqualified.

The record shows that Dr. Tiffert received his Bachelor of Arts degree in Political Science with highest honors from the University of California, Berkeley, then received his Masters degree in East Asian Studies from Harvard University, and then received his Ph.D. in History from the...