F. Impossibility

• Library: The Economic Espionage Act: A Practitioner's Handbook (ABA) (2017 Ed.)

F. Impossibility

Every law student is familiar with the impossibility defense. In cases of "factual" impossibility, a defendant may show that circumstances made it impossible for him to perform forbidden conduct, or for his conduct to produce forbidden results. Examples include a thief who thrusts his hand into another's pocket, intending to pick it, only to find it empty, or a would-be killer who pulls the trigger of a gun that, unbeknownst to him, is not loaded.⁹⁴ In cases of "legal" impossibility, the actor is able to complete the conduct, and bring about the results he intends, but, contrary to the actor's belief, that conduct and those results are not in fact forbidden.⁹⁵ The archetypal example of "legal" impossibility is the defendant who believes he is receiving stolen goods that are, in fact, not stolen.⁹⁶

In United States v. Hsu,⁹⁷ defendants charged with violations of section 1832 as a result of a "sting" operation sought to assert the latter defense. Seeking to diversify into biotechnology, Taiwan-based Yuen Foong Paper Company (YFP) approached "John Mano," a "technological information broker," seeking the processes, methods, and formulas for manufacturing Taxol, an anti-cancer drug produced by Bristol-Myers. Unbeknownst to YFP, John Mano was, in fact, undercover FBI agent John Hartmann.⁹⁸ At a meeting early in 1996, Hartmann told YFP that Bristol-Myers was unlikely to share that information, to which Kai-Lo Hsu, YFP's technical director, responded "We'll get [it] another way."⁹⁹ Hartmann told YFP that a "corrupt" Bristol-Myers scientist-actually a Bristol-Myers employee cooperating with the FBI—would be willing to sell the information, and YFP offered $400,000 in cash, stock, and royalties to the scientist in exchange for it.¹⁰⁰ YFP personnel were arrested at a meeting with Hartmann and the scientist, at which the scientist showed them documents marked with Bristol-Myers identification and labeled "CONFIDENTIAL," containing scientific data and describing processes related to the manufacture of Taxol.¹⁰¹

After they were indicted for violating section 1832, the defendants sought discovery of the documents presented to them at the meeting, arguing that they needed the documents in order to challenge the claim that they contained trade secrets. According to the defendants, they could not be convicted of attempting to steal trade secrets if the documents they were shown did not actually contain trade secrets.¹⁰² But this attempt to assert the defense of legal impossibility against charges under the EEA was rejected.¹⁰³

Despite the impossibility defense's ancient roots, the "modern trend" has been to "severely limit or abolish" it,¹⁰⁴ and by the time Hsu was decided, nearly every federal circuit had eliminated it.¹⁰⁵ However, the defense remained viable, in certain circumstances, in the Third Circuit—which recognized it in 1973, in United States v. Berrigan.¹⁰⁶ The District Court in Hsu was therefore required to consider its applicability to the EEA.

In 1972, Philip Berrigan—a Catholic priest and anti-Vietnam war activist incarcerated for destroying draft records with homemade napalm—was charged with smuggling unauthorized correspondence out of prison through another inmate, who was working for the FBI as an informant.¹⁰⁷ He was convicted under 18 U.S.C. section 1791, which required proof that the correspondence was sent "without the knowledge and consent" of the warden.¹⁰⁸ But because the other inmate was an informant, it was "undisputed that the prison officials had prior knowledge" of the letters.¹⁰⁹ Therefore, Berrigan argued, his acts did not constitute a crime under section 1791, and the verdict should be set aside. The trial court disagreed, finding that the "gravamen of the offense" under section 1791 was the "intent of the party committing the offense to deprive the warden of knowledge of such smuggling."¹¹⁰

The Third Circuit reversed, however, holding that a person who commits or attempts to commit an act that is not made criminal by statute cannot be convicted of attempt to commit a crime, even if he believes the act to be a crime, and intends to commit it.¹¹¹ The appellate court found that, in reaching its decision, the trial court relied on criminal codes, including the Model Penal Code, that had adopted "the overwhelming modern view," and eliminated the defense of legal impossibility.¹¹² However, the Third Circuit held, federal criminal law is purely statutory, and "the brute fact remain[ed] that present federal criminal statutes do not contain this provision."¹¹³

Although the impossibility defense thus remained viable in the Third Circuit, the District Court in Hsu recognized that, in line with the "modern trend," the Third Circuit had "moved away" from it.¹¹⁴ Examining the EEA's legislative history, the court found that the defense of legal impossibility "should not apply" to it. Specifically, the court...