Tasking List Was Not Hearsay

In economic espionage and unregistered foreign agent trial, a tasking list, found in another individual’s home, requesting aviation technology information, was not hearsay under FRE 801 but an instruction to take certain steps and “contained no declaration of fact capable of being proven true or false,” in United States v. Chung, _ F.3d _ (9th Cir. Sept. 26, 2011) (No. 10-50074)

A recent Ninth Circuit case, involving economic espionage charges, presented the issue whether a “tasking list” associated with the defendant to perform on behalf of a foreign government was inadmissible hearsay.

In the case, defendant Chung, a Chinese national who became a U.S. citizen, worked for several decades as a civil engineer at Boeing, Rockwell and McDonnell Douglas including as a contractor on the space shuttle. During another investigation, the FBI learned that the defendant may have been serving as a spy for China. During a search of his residence, agents found “more than 300,000 pages of Boeing and Rockwell documents, many of which related to the space shuttle, Delta IV Rocket, F-15 Fighter, B-52 Bomber, and Chinook Helicopter.” Chung, _ F.3d at _.

At the residence of another individual (who was separately prosecuted and who knew defendant Chung), agents discovered a “tasking list” which “was not addressed to anyone in particular,” but “requested information about aviation technologies.” Chung, _ F.3d at _. The defendant was found to possess other tasking lists and an agent “testified that technical documents responsive to the tasking list were found in Defendant’s home.”

The defendant was charged with six counts of economic espionage (misappropriating trade secrets with the intent to benefit the government of China), one conspiracy count, one count of acting as an unregistered foreign agent, and one count of making a false statement to federal agents. At a bench trial, the defendant objected to the admission of the unaddressed tasking list found in another person’s residence as hearsay, which was overruled. See United States v. Chung, 633 F. Supp. 2d 1134 (CDCA 2009) (conviction following ten-day bench trial). After his conviction, the defendant appealed the admission of the tasking letter.

The Ninth Circuit affirmed the admission of the tasking letter, concluding no hearsay issues were presented. The tasking list “was not offered for the truth of the matters asserted and therefore was not hearsay. The list contained no declaration of fact capable of being proven true or false.” Chung, _ F.3d at _ (citing United States v. Reilly, 33 F.3d 1396, 1410 (3d Cir. 1994) (“Instructions to an individual to do something are . . . not hearsay . . . because they are not declarations of fact and therefore are not capable of being true or false.”) (citation and internal quotation marks omitted)).

The defendant also claimed for the first time that the tasking list was not relevant. This issue was reviewed for plain error under FRE 103(d) since this basis for objection had not been presented to the trial court. While the tasking list was found in another residence, the circuit noted that the defendant “had access to that information, and documents responsive to the list were found in Defendant’s home.” Consequently, the list was probative to show that the defendant had “collected documents in response to requests from China.” Even assuming the list was erroneously admitted, the circuit noted that any error was harmless based on other tasking lists the defendant possessed and other evidence.

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