Judge skeptical of economic espionage charges in ex-Google engineer’s AI secrets case

SAN FRANCISCO (CN) — A federal judge questioned government attorneys Tuesday for a second time over whether a former Google software engineer found guilty of stealing proprietary information on Google’s artificial intelligence technology for Chinese companies should have part of his conviction tossed due to concerns it was not presented fairly to the jury.

U.S. District Judge Vince Chhabria said it was a “real stretch” that a reasonable jury could have concluded beyond a reasonable doubt that Linwei Ding possessed the intent to benefit a Chinese instrumentality when he uploaded files containing Google trade secrets to his personal cloud account in spring 2023.

“It is very hard for me to conclude that he had that intent in April based on what he did in September or October,” the Barack Obama appointee said, adding, “On these facts, this evidence, I don’t think a reasonable juror could conclude beyond a reasonable doubt.”

Ding was accused of stealing trade secrets from Google, which hired him in 2019 as a software engineer to help develop its supercomputing data centers. He was charged with seven counts of theft of trade secrets and seven counts of economic espionage, each corresponding to one of the seven categories of trade secrets.

A San Francisco jury found Ding guilty of all 14 counts of theft of trade secrets and economic espionage following a two-week trial in January.

Ding filed a motion for a new trial and mistrial, along with a motion for acquittal in February, contesting all trade secret and economic espionage charges. A hearing on the post-trial motions was held in May, with Chhabria ordering the parties to submit additional briefing on the issues.

On Tuesday, Chhabria echoed many of the same concerns he raised at the May hearing, highlighting his apprehension with the government charging Ding with economic espionage based on his downloading of the trade secret documents from the cloud to his personal laptop in December 2023.

“Your characterization is that he is guilty of theft of trade secrets based on what he did between May 2022 and April 2023, and here is this other evidence from September and October of his intent to work with Chinese instrumentalities. But you never linked his intent to work with instrumentalities with his theft of trade secrets from May 2022 to April 2023,” he told the government.

Assistant U.S. Attorney Casey Boome argued the government had argued at trial that while Ding was uploading the files to his personal cloud account in spring 2022, he had a plan to make his own technology company, Zhisuan Technology, successful by partnering with the Chinese government.

“Even as far back as May 2022, a reasonable jury could find he conceived of the plan he ultimately executed to partner with Chinese instrumentalities,” Boome said.

Ding began transferring files in the spring of 2022, copying information from internal Google documents to the notes application on his company-issued laptop, converting the notes to PDFs and uploading them to a personal cloud account. In total, the government said Ding transferred 1,255 documents, comprising an estimated 14,000 pages, between the spring of 2022 and 2023. Ding additionally downloaded the documents from his personal cloud account to his personal laptop in December 2023, as the walls began to close in on him at Google.

Chhabria also revisited the issue of whether the uploads of documents between the spring of 2022 and 2023 and the downloads in December 2023 were two separate crimes or one ongoing crime.

“He committed the crime in April of theft of trade secrets. The crime is completed. How is downloading in December 2023 the same crime?” he asked.

Assistant U.S. Attorney Molly Priedeman responded that Ding’s conduct in April and December was “different means of committing the same crime,” and they covered the “same trade secrets, same scheme, same goal and continuing course of conduct.”

Chhabria additionally told attorneys for the government they did not argue at trial that Ding committed theft of trade secrets, a required element to prove economic espionage, when he downloaded the documents in December 2023.

“I don’t think you will convince me you presented to the jury he committed theft of trade secrets in December 2023,” he said.

Grant Fondo of Goodwin Procter, an attorney for Ding, largely agreed with Chhabria’s arguments, telling the judge the question of whether or not the economic espionage charges were presented fairly to a jury was “super simple” and “didn’t need rounds of briefing.”

“The government could have clearly said at the time he downloaded the documents, he intended to benefit China, but they didn’t do that. They could have cured it with a few sentences. You can’t change things after the fact.”

Ding is scheduled to be sentenced on Aug. 4. He faces a maximum of 10 years in prison and up to $250,000 in fines for each trade secret count, in addition to 15 years in prison and a $5 million fine for each economic espionage count.

Chhabria previously ruled that Ding be released pending sentencing, finding he was not a danger to the public or a flight risk.

Representatives for both parties declined to comment.

Follow @mhattridge_