Mak Denied Rehearing

67-year-old engineer Chi Mak was found guiltyof a very serious federal national security crime; he and his family stole secrets from his employer, L-3 Communications Holdings Inc. ^[1]The alleged target was data about Navy submarine engines that run silently to avoid detection.^[2]

The engineer lost his battle to overturn the conviction Monday, after a federal judge denied a motion for a new trial. Mak faces up to 45 years in prison and he is scheduled to be sentenced March 24 by U.S. District Court Judge Cormac J. Carney.^[3]

In May, a jury convicted Mak of exporting sensitive defense technology to China by giving his brother three encrypted files containing protected naval technology to take to China; a search of his house also yielded other documents containing military technology.^[4]

One of Mak’s contentions was that his constitutional rights were violated because prosecutors did not offer immunity to one of his co-workers to testify.^[5] The co-worker, Dr. Yuri Khersonsky, presented a paper on technology similar to that which led to Mak's arrest during an international conference, though he did not obtain approval to do so.^[6] Khersonsky ended up declining to testify in the case and taking the Fifth Amendment, partly because he could have incriminated himself during Mak's trial.^[7]

Mak's federal criminal defense attorney, Ronald Kaye, alleged Khersonsky's testimony would have been vital to exonerating Mak, and would have shown jurors the material was already in the public eye.^[8] He alleged prosecutors should have offered Khersonsky immunity, allowing him to take the stand because this effectively cost them their “best witness.”^[9]

But the judge pushed aside Mak’s arguments, ruling that the testimony would not have dispositive regarding the trial’s outcome and specifically could not have shown if Mak intended to break the law.^[10]

Under 18 U.S.C. § 794, Gathering or Delivering Defense Information to Aid a Foreign Government, the government must prove that the defendant provided, communicated, transmitted, or attempted to do the same, any document, material, or information to a foreign government; or that the defendant provided, communicated, transmitted, or attempted to do the same, any document, material, or information to a foreign government; or that during a time of war, the defendant collected, recorded, published, or communicated information relative to the Armed Forces to the enemy; That the defendant intended, knew, or should reasonably have known, that the information was to be used to in some way injure the United States.^[11]

Anyone convicted under this statute shall be fined and may be imprisoned for life. In those instances in which a jury finds that the actions of the defendant led to the death of any person, or directly concerned nuclear weaponry, military spacecraft or satellites, early warning systems, other means of defense or retaliation against large-scale attack, war plans, COMINT, or any other major weapons system or major element of defense strategy, then the death penalty may be sought. Additionally, any and all material, money, or possessions involved in the violation of this statute will be seized by the government.^[12]

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^[1] Jeff Bliss, China's Spying Overwhelms U.S. Counterintelligence, Bloomberg, Apr. 2, 2007, available at http://www.bloomberg.com/apps/news?pid=20601087&sid=ab2PiDl1qW9Q&refer=home (last visited Apr. 2, 2007).
^[2] Id.
^[3] Rachanee Srisavasdi, Judge denies new trial for ex-Anaheim engineer-spy, The Orange County Register, Monday, January 7, 2008, available at http://www.ocregister.com/news/mak-trial-prosecutors-1955318-khersonsky-technology (last visited January 8, 2008).
^[4] Id.
^[5] Id.
^[6] Id.
^[7] Id.
^[8] Id.
^[9] Id.
^[10] Id.
^[11] 18 U.S.C. § 794 (2005).
^[12] Id.