Did the FBI go too far in questioning researchers?

Lawyers for Chinese academics: Agents interviewed them without reading rights

SACRAMENTO, Calif. — As federal prosecutors press forward with cases against Chinese researchers accused of lying about their ties to China’s military to gain access to prestigious American universities, the FBI’s conduct in two Northern California cases has become a central focus of court proceedings.

Prosecutions involving researchers at the University of California, Davis, and Stanford University now include claims by defense attorneys that FBI agents improperly interviewed their clients without first explaining that they had the right to refuse to answer questions.

Last week in federal court in Sacramento, a judge threw out one of two counts filed against Tang Juan, a visiting cancer researcher at UC Davis who was arrested last year and indicted on charges of lying on her visa application and of lying to two FBI agents who questioned her last June “by falsely stating that she was not a member of the Chinese military.”

U.S. District Judge John A. Mendez dismissed the count of lying to the FBI, ruling that “her statements must be suppressed” because the agents violated Tang’s Miranda rights by failing to advise her that she did not have to answer their questions and could have ended the 90-minute to two-hour interview at any point.

“At the time of the interview, she had no experience with the American justice system,” the judge wrote in a 17-page order. “A reasonable person in her position would not have felt free to terminate the interrogation or to ask the agents to leave.”

Prosecutors argued that the two agents never took Tang into custody or prevented her from leaving the 800-square-foot apartment she was planning to move out of that day, and that they were solicitous to the family, with one of the agents speaking in Mandarin.

“Because Tang was not in custody at the time of the interview, she was not advised of her Miranda warnings nor was Tang advised that she was not compelled to speak with the agents or could end the interview at any time…,” prosecutors wrote in court filings. “As further evidence that the FBI intended the interview to be non-confrontational, the agents even brought along a toy for Tang’s daughter.”

During the interview, court papers say Tang admitted she had filled out a visa application denying she served in the Chinese military and “adamantly denied” to the agents that she belonged to the People’s Liberation Army Air Force Civilian Cadre, which the government contends “are considered active duty military members.”

Sacramento defense attorneys Malcolm Segal and Tom Johnson argued in court filings that the FBI agents “clearly knew and understood that Dr. Tang was a citizen of the People’s Republic of China, a country where citizens customarily obey the orders of police and other authorities.”

“Dr. Tang had been in the United States for approximately six months and had no knowledge of or experience with the American justice system,” they wrote, arguing that she “would not know that she had the right to refuse to answer their questions and that she would obey their commands.”

“Questioned thousands of miles from her home country, during a global pandemic, with FBI agents — one of whom was a native Mandarin Chinese speaker who took complete control of her home — Dr. Tang was under immense pressure to do whatever she thought the agents wanted her to do,” they wrote.

The agents subsequently seized Tang’s passport, laptop and cell phone, and Tang ultimately made her way to the Chinese Consulate in San Francisco, where she remained until she emerged in late July for a doctor’s appointment and was arrested by the FBI.

The remaining count of the indictment against her charges her with lying about her ties to China’s military and Communist Party. Prosecutors have cited photographs of Tang in military uniforms as evidence that she was not truthful about her ties to the military, but her lawyers say she was a civilian participating in studies at a military school.

Tang’s case is one of dozens of cases launched by the Trump Administration through its “China Initiative” in 2018 to crack down on alleged instances of trade secret theft and economic espionage by researchers accused of lying about their backgrounds to obtain access to American research institutions.

One of those cases involves Chen Song, a neurology researcher at Stanford University who was charged last year with lying on her visa application about ties to China’s military.

She subsequently was indicted in federal court in San Francisco earlier this year on additional charges of destroying evidence and lying to the FBI during a July 2020 interview with FBI agents.

In court filings Tuesday, her attorneys cited the decision by Judge Mendez to dismiss the charge against Tang of lying to the FBI, and made similar arguments that their client had been denied her Miranda rights.

“Dr. Song was denied these rights — she was interrogated without being notified of her right to counsel and without an adequate explanation of her right to remain silent,” they wrote. “Now the government seeks to exploit those violations and use statements she made against her — precisely the result Miranda protects against.”

Prosecutors have argued that FBI agents made it clear Song was not being forced to participate in the interview.

“Throughout the events of that day, defendant was never placed in handcuffs, moved freely between various rooms and areas upstairs and downstairs of the home, and was repeatedly advised by agents in English and in Chinese that she was not under arrest and that any interview of her was voluntary,” they wrote. “Indeed, defendant herself acknowledged during the interview sessions, in English, that she was not under arrest and that she need not answer questions.”

The judge in San Francisco has not yet ruled in that dispute.

Tang, meanwhile, pleaded not guilty last week and remains under supervised release in the Bay Area.

Her trial in Sacramento is scheduled to begin July 26.

“Questioned thousands of miles from her home country, during a global pandemic, with FBI agents ... Dr. Tang was under immense pressure to do whatever she thought the agents wanted her to do.”

– MALCOLM SEGAL AND TOM JOHNSON, DEFENSE ATTORNEYS FOR TANG JUAN