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United States v. Yeh

United States District Court, Fifth Circuit

December 13, 2013

UNITED STATES OF AMERICA
v.
ELLEN CHEN YEH, Defendant.

MEMORANDUM OPINION AND ORDER DENYING APPLICATION TO MODIFY RELEASE CONDITIONS TO PERMIT DEFENDANT ELLEN CHEN YEH TO TRAVEL TO CHINA

DAVID L. HORAN, Magistrate Judge.

Defendant Ellen Chen Yeh has filed an Application to Modify Release Conditions to Permit Defendant Ellen Chen Yeh to Travel to China, see Dkt. No. 19, which Judge Solis has referred to the undersigned magistrate judge for determination, see Dkt. No. 21. The undersigned held a hearing on the motion on December 12, 2013, with counsel for Defendant and the government appearing. See Dkt. No. 26. Based on the parties' submissions and the arguments and proffers made at the hearing, and for the reasons explained herein, Defendant's application [Dkt. No. 19] is DENIED.

Background

Defendant was employed at Texas Instruments, Inc. ("TI") until March 2005 and worked at the company's headquarters in the Northern District of Texas. Several weeks after leaving TI, Defendant and her family left the United States and moved to Shanghai, China, where Defendant and her husband took employment. On March 23, 2005, as Defendant and her family were preparing to board a flight to Shanghai, the Federal Bureau of Investigation executed federal warrants authorizing the search of the Chens' luggage, carry-ons, and household goods for evidence that Defendant had misappropriated TI's trade secrets, in violation of 18 U.S.C. § 1832. During the search, agents interviewed Defendant and seized several digital devices.

On April 8, 2008, a grand jury sitting in the Northern District of Texas returned a ten-count indictment against Defendant, charging her with three counts of knowingly stealing and misappropriating TI trade secrets in violation of 18 U.S.C. § 1832(a)(1) and (a)(4); three counts of knowingly and without authorization copying, downloading, uploading, and replicating TI trade secrets, in violation of 18 U.S.C. § 1832(a)(2) and (a)(4); two counts of knowingly and without authorization accessing a protected computer with intent to defraud, in violation of 18 U.S.C. § 1030(a)(4); and a forfeiture allegation. The indictment and ensuing arrest warrant were sealed. See Dkt. No. 1.

In March 2012, at the government's request, the Court ordered the indictment unsealed. See Dkt. No. 5. Shortly thereafter, the government applied to Interpol to issue a "Red Notice, " an alert communicated to all Interpol member countries that the Notice's target is wanted by a member country and requesting that any member country that comes into contact with the target place the target under provisional arrest pending extradition. In or around October 2012, Interpol issued the Red Notice. In April 2013, Defendant was denied entry into South Korea based on the Red Notice.

The following month, May 2013, Defendant, through her present counsel, contacted the government's counsel to state her intention to return to the United States to address the outstanding charges against her. On August 26, 2013, Defendant returned to the United States, entering the country through San Francisco International Airport.

Later that day, Defendant had an initial appearance before a United States Magistrate Judge in the Northern District of California. That court released Defendant pending trial, subject to several terms and conditions that the government and Defendant had agreed were acceptable. See Dkt. No. 6. Those terms and conditions included Defendant's surrendering her passport; submitting to pretrial supervision; remaining in the third-party custody of her parents, who live in a suburb of Atlanta, Georgia; limiting her travel to the Northern District of California, the Northern District of Georgia, and the Northern District of Texas; and posting a $200, 000 unsecured bond. See id. Defendant is being supervised by Pretrial Services in the Northern District of Georgia, the federal district in which her parents reside.

Defendant now requests that the Court modify the conditions of her pretrial release to permit her to travel to China from December 27, 2013 through February 9, 2014, which would allow her to spend her daughters' birthday and a majority of the Chinese New Year with her family and return in time for trial, which is scheduled to begin on March 3, 2014. See Dkt. No. 19; Dkt. No. 25.

Legal Standards and Analysis

18 U.S.C. § 3142(c) requires a court to impose the least restrictive combination of conditions that the court determines will reasonably assure Defendant's appearance as required and the safety of any other person and the community. The conditions that the Court in the Northern District of California imposed for Defendant's release quite clearly are designed to reasonably assure her appearance in the Northern District of Texas as required by restricting Defendant from leaving the country and returning to China, a country that has no extradition treaty with the United States.

18 U.S.C. § 3142(c)(3) provides that the Court "may at any time amend the order to impose additional or different conditions of release." This provision is the legal basis for Defendant's application.

The factual bases for her application are that Defendant's husband and three children continue to reside in Shanghai; Defendant's son just turned 16, and her twin daughters will turn 13 on January 28, 2014; Defendant has not seen her family since she arrived in the United States this August; Defendant has never spent the holidays away from her family; and Defendant has complied with all conditions of her pretrial release and is in good standing with Pretrial Services. See Dkt. No. 19; Dkt. No. 25. Defendant's counsel further proffers that Defendant's supervising Pretrial Services Officer in the Northern District of Georgia has no objection to Defendant's request that she be permitted to travel to China to visit her family for the holidays and to celebrate her twin daughters' thirtheenth birthday, based on the facts that Defendant has been very compliant with Pretrial Services, that Defendant is a low risk based on the pretrial risk assessment performed at this case's outset, and that Defendant voluntarily returned to the United States to face the charges in this case. See Dkt. No. 19. Defendant's counsel further notes that Defendant "voluntarily surrendered to the jurisdiction of this Court in August to answer the charges in this case, and, although it has certainly been difficult being away from her husband and three children for the past four months, there has been no material change in the circumstances of this case that has altered her eagerness to submit herself to the jurisdiction of the Court and resolve this case." Dkt. No. 25 at 3.

Defendant's application reports that she is amendable to additional conditions that this Court may consider reasonable and necessary to ensure Defendant's return. In a supplemental memorandum filed at the Court's direction, Defendant's counsel suggests that the following additional conditions of pretrial release may be appropriate if the Court determines that additional conditions are necessary to ensure Defendant's return from China: (1) increasing the amount of Defendant's unsecured bond, perhaps to $500, 000, to guarantee Defendant's future appearance in court; (2) requiring Defendant's family to secure Defendant's current unsecured (signature) bond or to supplement the unsecured bond with real property, of which there are three properties owned without encumbrances for which ...


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