United States v. Tao
| Decision Date | 19 September 2022 |
| Docket Number | 19-20052-JAR |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. FENG TAO, Defendant. |
| Court | U.S. District Court — District of Kansas |
Defendant Feng Tao was a highly respected and acclaimed chemistry and engineering professor at the University of Kansas (“KU”) when he received the coveted Changjiang Scholar award from the Peoples Republic of China at Fuzhou University, the sponsoring institution. Tao did not disclose this to KU. Tao obtained a “buy-out” of his teaching responsibilities at KU for the spring semester of 2019, and without KU's knowledge, spent most of the first eight months of 2019 at Fuzhou University (“FZU”), preparing to build a research lab there applying for funding for that research, and recruiting graduate students to join his research team.
Tao was charged with multiple counts of wire fraud for concealing his affiliation with FZU from KU, and from two federal agencies Department of Energy (“DOE”) and National Science Foundation (“NSF”) that had previously awarded KU grant funding for Tao's ongoing research at KU. Tao was also charged with making false statements in certified forms that Tao submitted to KU, within the jurisdiction of DOE and NSF, in that these federal agencies required KU to implement and manage conflict-of-interest policies concerning the federal grant funds.
After a two-week jury trial, Tao was convicted of three counts of wire fraud and one count of making a false statement. Now before the Court is Tao's Motion for Judgment of Acquittal, or, in the Alternative, for a New Trial (Docs 286, 290). The motion is fully briefed, and the Court is prepared to rule.
Viewing the evidence in the light most favorable to the Government, the Court finds that the evidence was legally and factually insufficient to support Tao's wire fraud convictions. Though Tao was deceptive in not disclosing his activities at FZU, there was no evidence that Tao obtained money or property through the alleged scheme to defraud, as required under the wire fraud statute. During the time period of the alleged scheme to defraud, Tao continued to rightfully receive his salary from KU for his services and continued to successfully perform the research required by DOE and NSF under their research grants. But there was sufficient evidence supporting the jury's guilty verdict on the false statement count. Tao made a false statement in certifying to the truth and completeness of the September 2018 Institutional Responsibilities form he submitted to KU. Further, there is no basis for a new trial on the false statement count. So, after a careful and thorough review of the trial record and arguments presented, the Court grants in part and denies in part Tao's motion.
A federal grand jury returned a ten-count Second Superseding Indictment (“Indictment”) charging Tao in Counts 1 through 7 with wire fraud, in violation of 18 U.S.C. §§ 1343 and 2, and in Counts 8 through 10 with making false statements, in violation of 18 U.S.C. §§ 1001(a) and 2.[1] To support these charges, the Indictment alleged that Tao engaged in a scheme to “obtain” his salary from KU and federal grant funds from DOE and NSF by concealing his affiliation with FZU, associated benefits, and foreign research support. Before trial, Tao filed two motions to dismiss the Indictment,[2] which the Court denied.[3] The Court later granted the Government's motion to dismiss Counts 3 and 8.[4]
Trial began on March 21, 2022. The Government's case-in-chief spanned nearly two weeks, during which the jury heard testimony from 30 witnesses and viewed close to 400 exhibits. At the close of the Government's case, Tao orally moved for a judgment of acquittal on all eight counts under Fed. R. Crim. P. 29, arguing the evidence was insufficient to convict him of the charges. As permitted by the rule, the Court reserved its judgment on the motion. Tao orally renewed his motion after the close of the defense's case the next day. The Court again reserved judgment and permitted the case to proceed to the jury. After deliberating for one and a half days, and submitting a jury question, the jury returned a split verdict. The jury found Tao guilty of three counts of wire fraud (Counts 4, 6, and 7, renumbered as Counts 3, 5, and 6 at trial) and one count of making a false statement (Count 9, renumbered as Count 7 at trial). The jury acquitted him on the remaining four counts. Tao timely renewed in writing his motion for judgment of acquittal and moved in the alternative for a new trial under Fed. R. Crim. P. 33.[5]That motion is now before the Court.
The Court begins by recounting the evidence presented at trial, viewed in the light most favorable to the Government.[7]
A. Employment at KU
KU hired Tao in 2014. Previously a professor at Notre Dame, Tao joined the KU faculty as a full-time, tenured associate professor in the Chemistry and Petroleum Engineering Departments. With him came several hundred thousand dollars in federal grant funds from NSF. This NSF grant was originally awarded to Notre Dame to fund Tao's research under NSF's CAREER program, which supports promising early-career faculty to “help them bring their research to the next level.”[8] The CAREER grant was transferred to KU in December 2014.
Tao successfully secured additional federal research grants while at KU. As relevant here, KU submitted a grant proposal to NSF to support his research on October 2, 2017; NSF awarded the grant to KU on June 28, 2018. On December 11, 2017, two months after submitting the NSF grant proposal, KU submitted a grant proposal to DOE seeking renewed funding to support Tao's ongoing research. DOE awarded the grant on September 18, 2018. In addition to these grants, Tao was a co-principal investigator on an NSF grant that KU applied for in March 2015. During Tao's tenure, he submitted numerous grant proposals to funding agencies and he submitted numerous annual Institutional Responsibilities forms.[9] During his tenure at KU, Tao had a “stellar research record.”[10] In April 2019, he was one of four KU professors to receive the University Scholarly Achievement Award. This marquee award “recognize[s] standout researchers who embody [KU's] mission to make discoveries that change the world,” and comes with a $10,000 prize.[11] The chair of Tao's department, Dr. Laurence Weatherley, supported Tao's nomination.
At the awards ceremony in April 2019, KU's Chancellor, Dr. Douglas Girod, proclaimed that Tao's research contributions had “far exceeded expectations in his field in terms of his productivity and really his level of ingenuity.”[12] Dr. Girod noted that Tao “had 175 publications with over 6,000 citations, which really speaks to the novelty and the relevance of his work,” and that he had “really enhanced KU's capabilities in surface science in the area of catalysis.”[13] Dr. Girod also commended Tao for (1) being named a fellow in the American Association of the Advancement of Science and in the Royal Society of the United Kingdom; (2) serving as a reviewer on panels for both DOE and NSF; (3) “flourishing research collaborations with a number of colleges and other institutions”; and (4) developing “a very strong team of graduate students and post-doc researchers in addition to developing a world class lab here at KU.”[14]Tao's wife accepted the award on his behalf because Tao was in China at the time.
Like many faculty members, Tao's research was stronger than his teaching. In his annual evaluations from 2015 to 2018, undergraduate teaching and advising were identified as “[a]reas noted for improvement” or “further development.”[15] Faculty committee service was also listed as an area for development. Dr. Weatherley, who prepared and delivered the annual evaluations, testified that Tao's “external service [was] no problem.”[16] But he emphasized the importance of internal, departmental service as a “piece of advice . . . that [he] would give to any colleague” interested in being promoted to full professor, because “the process for promotion . . . is basically peer review.”[17] Dr. Weatherley testified that it is not unusual for faculty members to have areas for development identified in annual evaluations. Indeed, providing feedback on a faculty member's strengths and weaknesses in an annual evaluation is “[v]ery common” and a purpose of the evaluation.[18] In Dr. Weatherley's view, Tao was a solid faculty member.
B. The 40-40-20 Split
Faculty members at KU divide their effort into three parts: research, teaching, and service, typically in a classic 40-40-20 split of their time. Research responsibilities include conducting scientific research, publishing scholarship, and seeking grant funding to support scholarly activity. Traditionally, teaching two classes per semester “would make up that [second] 40 percent,” covering the time that goes into preparation, instruction, evaluation, assessment, testing, and advising.[19] But teaching also includes “hands-on” instruction like directing graduate-student research.[20] Eighty percent of a faculty member's time is split evenly between research and teaching, reflecting their equal importance. The remaining twenty percent is spent on service to the university, community, and profession.
Although faculty normally spend forty percent of their time teaching a faculty member may request to “buy out” a course with external grant or endowment funds to release them from teaching responsibilities for a semester. If approved, another faculty member or adjunct instructor will cover the bought-out course. Faculty members receive no extra salary for teaching a bought-out course, but if an adjunct is...
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