NOAA employee innocent, her attorney says
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— The hydrologist DAYTON federally accused of stealing “sensitive and restrictive” data about United States dams shared only information from publicly accessible websites and told her superiors about it, according to motions filed by her attorneys, including a motion to dismiss her indictment.
That description differs from a recently unsealed FBI search warrant affidavit that details the government’s investigation into Xiafen “Sherry” Chen, who was suspended without pay from her job at the National Oceanic and Atmospheric Administration (NOAA) in Wilmington, according to her attorneys.
Chen was indicted Oct. 16, 2014, in Dayton’s U.S. District Court with theft of government property, fraud and related activity in connection with
computers, and making a false representation. None of the counts allege espionage, but an FBI special agent’s affidavit alleges how Chen, upon request from her nephew, met with Chinese Vice Minister of Water Resources Yong Jiao in May 2012.
The FBI affidavit stated Yong asked Chen, 59, about “how the U.S. repairs and maintains dams; shares the cost of dam projects; and what size dams belong to farmers and the government.” The two later exchanged friendly emails in which Chen provided Yong information from U.S. government websites and the phone number for Water Management at the Army Corps of Engineers, according to multiple court documents.
The FBI affidavit alleged that Chen, upon returning to work in Wilmington, asked for and received a co-worker’s username and password to access the National Inventory of Dams (NID) database portal. Chen accessed the “sensitive and restrictive” database four times in May 2012, but only one of those instances (16 minutes) was longer than one minute, according to the FBI’s affidavit. The affidavit also alleged that Chen downloaded at least one file and never had authorization to access the NID.
Chen denies the allegations.
The FBI’s review of seven years of Chen’s Yahoo email account found no other communications between Chen and either Yong or the nephew who set up the meeting between Chen and Yong beyond the May 2012 exchanges, according to an unclassified FBI document attached to Chen’s motion in limine filed with the Court.
Chen’s attorneys said the federal investigation that included a sevenhour interview with Chen has not produced “a scintilla of evidence that Ms. Chen has ever provided any non-public information to anyone, let alone anyone in China.”
Defense attorneys Peter Zeidenberg and Thomas Zeno have filed both a motion to dismiss the four-count indictment due to the vagueness of the charges and a motion in limine to preclude prosecutors from introducing evidence related to Chen’s nationality, her trips to China or her contacts and communication with a former colleague in China.
“We think this is a huge mistake on the part of the government, and we expect Ms. Chen to be fully vindicated,” Zeidenberg said Monday.
Assistant U.S. attorney Dwight Keller declined to comment. A Jan. 13 telephone conference is set with a jury trial scheduled for March 16, 2015.
Defense motions say Chen emigrated from China with her husband in 1992 and became a permanent legal resident in 1997. In July 2004, Chen became a naturalized U.S. citizen and traveled regularly to China to visit her elderly parents before her father died in 2013, a motion said.
Court documents also indicate Chen has advanced degrees in hydrology from a university in Beijing, China, and the University of Nebraska. She worked as a hydrologist for the state of Missouri for seven years before her current sevenyear NOAA stint, a motion alleged. Chen helped create and build a computer model designed to provide river forecasts in the Ohio River basin, a motion said.
During a 2012 trip to China, Chen had a brief visit with “a former colleague and hydrologist who worked at the Dept. of Water Resources in Beijing,” according to a defense motion. That motion said the colleague asked a number of questions about the financing of dam repair in the United States and that Chen said she did not know the answers, but would provide publicly available information to him.
On May 15, 2012, the document stated, Chen sent an email about dams with information from U.S. government websites and links to those sites. The motion also said that on May 24, 2012, Chen called Deborah H. Lee, the water management chief, who said the information was available on the COE website. Lee then contacted the COE’s security division, the motion said.
On June 13, 2013, federal agents interviewed Chen at her office for seven hours, according to the motion. On Sept. 25, 2013, agents again visited Chen to ask about her trip to China and if she’d visited Chinese government officials, according to the motion.
A defense motion stated that on Sept. 25, 2014, Chen and her husband were departing for China via Port Columbus Airport when federal agents searched all the Chens’ luggage and questioned them, and that agents questioned the Chens again Oct. 17, 2014when they returned.
“We hope to persuade, if not the government, then persuade the court (that this prosecution is a mistake),” Zeidenberg said. “And if not, and we have to go to trial, we expect that we’ll be able to persuade to a jury that the government here has made a huge mistake and a real injustice has occurred.”