On May 9, 2015, the New York Times published a comprehensive article titled "Accused of Spying for China, Until She Wasn't." It began with the horrifying scene of Sherry Chen's arrest by six FBI agents in front of her colleagues at the National Weather Service office in Ohio on October 20, 2014.
The government accused Sherry Chen, a naturalized U.S. citizen born in China and an award-winning hydrologist, of four counts of using a stolen password to download information about the nation’s dams and of lying to federal investigators. Together, the potential punishments added up to 25 years of prison and $1 million fine.
When Sherry Chen pledged her complete innocence and her legal counsel filed motions pointing out the fatal flaws and factual errors in the case, the government issued superseding indictment and doubled down on the charges and potential penalties against her on January 15, 2015. Sherry Chen courageously refused to any suggested plea agreement for lesser charges as the trial date was approaching.
Five months after her dramatic arrest and a week before her scheduled trial was to begin, the government abruptly dropped all charges against Sherry Chen without explanation on March 10, 2015.
The Department of Justice prides itself on high conviction rates as one of its performance measures. Dismissal of all charges before a trial begins is extremely rare, especially for such serious accusations related to espionage. However, dropping of Sherry Chen's case was brushed off as an exercise of "prosecutorial discretion.”
For Sherry Chen, an innocent person who was wrongly accused, it was welcomed but unsatisfactory relief after the traumatic experiences on her finances, reputation, emotion, and family, from which she cannot be made whole again.
The saga of Sherry Chen began when Deborah H. Lee, then the chief of the water management division at the Army Corps of Engineers, with whom Sherry Chen had worked on projects over the years, reported Sherry Chen as a "Chinese National" and a concern to the security staff at the Department of Commerce on May 24, 2012.
The New York Times was not able to obtain Lee's comments on her motivations as an informant, but noted that she was promoted into a Senior Executive Service position immediately before Sherry Chen's arrest in 2014. The Sherry Chen Legal Defense Fund filed a FOIA request for documents related to the filling of the vacancy, but has not yet received a response from the Department of Commerce.
Almost a year after Lee’s tip, two special agents from the Department of Commerce visited and interrogated Sherry Chen for seven hours, without informing Sherry that she was the target of their investigation and the presence of legal counsel. Subsequent discovery will show that the agents altered and omitted exculpatory evidence in their official reports of investigation.
Peter R. Zeidenberg, defense lawyer for Sherry Chen, said he believed it was telling that the government went after Sherry Chen for using a colleague’s password to access a database on U.S. dams, but not after the colleague who gave it to her — and to the entire office. A binder with the password had been openly shared in the office for at least three years. In fact, the government encourages the public to use the National Inventory of Dams database except for a few incomplete fields.
The purported checks and balance in our justice system failed Sherry Chen. Once she was targeted, innocuous words and normal activities became nefarious in the cross hair of the responsible agents and officials.
It was also a time when the U.S. became more aggressive against economic espionage, especially by China, under a newly announced national strategy. Asian Americans, especially Chinese Americans, became convenient targets of profiling again under the "perpetual foreigner" stereotype.
“They came across a person of Chinese descent and a little bit of evidence that they may have been trying to benefit the Chinese government, but it’s clear there was a little bit of Red Scare and racism involved,” said Peter J. Toren, a former federal prosecutor commented in the New York Times article.
It was with this backdrop that the Congressional Asian Pacific American Caucus (CAPAC) held a news conference on Capitol Hill on May 21, 2015, less than two weeks after the New York Times article was published.
Twenty two Congressional members wrote a joint letter to then-Attorney General Loretta Lynch and called for an independent investigation to review whether racial profiling was a factor in the Sherry Chen case and in the policy and practices of the Department of Justice.
Reminded by the history of the Chinese Exclusion Act of 1882, the Japanese internment during World War II, and the case of Dr. Wen Ho Lee less than two decades ago, community leaders expressed concerns about the Sherry Chen case and support for the Congressional request for investigation during the press conference.
On the day of the press conference, Professor Xiaoxing Xi, Chair of the Physics Department at Temple University, was arrested and accused of passing proprietary trade secrets to China. His case was also dropped without explanation five months later in September 2015.
Within a span of two short years, four naturalized Chinese American scientists in academia, government, and private industry were accused of espionage-related charges, but all of them had their cases dropped or dismissed without explanation, apology, or redress by the government. They were not the only ones.
Congress and community organizations continued to call attention to the development and demanded investigations into the apparent racial profiling pattern through 2015 and into 2016. Additional press conferences were held, joint letters were written to the Department of Justice, and seminars organized to raise public awareness. The U.S. Commission on Civil Rights also expressed their concerns and joined the call for investigations.
Mainstream and community media started to call for explanation and apology to Sherry Chen, Professor Xi and other victims of targeting, as well as question the policy and practice of profiling Chinese American scientists in the U.S. fight against economic espionage and related offenses.
Despite the public outcry and concerns, the dismissal of Sherry Chen's criminal case was the start of the next act of gross injustice against Sherry Chen. Rather than reinstating her to her position and conducting an objective review of the mishandling of the criminal case, the Department of Commerce proceeded to fire Sherry Chen from her job.
The Sherry Chen story continues in 2015-2016 Wrongful Termination, 2016-2018 MSPB Appeal and Decision, and 2018-Now Post-MSPB Decision.
New York Times
May 9, 2015
Deborah H. Lee, Director of NOAA Great Lakes Environmental Research Laboratory
Sherry Chen with her defense attorney Peter R. Zeidenberg
May 21, 2015 Capitol Hill Press Conference
Innocent Chinese American scientists in academia, government and private industry became convenient profiling targets
September 15, 2015 Press Conference
November 17, 2015 Capitol Hill Press Conference
The Sherry Chen Legal Defense Fund
The Sherry Chen Legal Defense Fund was created under a legal trust agreement on November 20, 2015 to receive donations and support Sherry Chen’s continuing fight to defend herself and seek fairness and justice for the broader community.
Freedom of Information Act (FOIA) Requests
Since 1967, the Freedom of Information Act (FOIA) has provided the public the right to request access to records from any federal agency. It is often described as the law that keeps citizens in the know about their government. Federal agencies are required to disclose any information requested under the FOIA unless it falls under one of nine exemptions which protect interests such as personal privacy, national security, and law enforcement.
The Sherry Chen Legal Defense Fund has filed the following FOIA request and appeal with the Department of Commerce. Standard response time to a FOIA request or appeal is 20 work days, but the Fund has not yet received a response to date. Online tracking of these request and appeal is available at http://bit.ly/2MepqL6.
On May 31, 2018, the Sherry Chen Legal Defense Fund filed a FOIA request for NOAA to provide documents that the OPM Merit Staffing Requirements and related requirements were met in the filling of the vacancy of Director of Great Lakes Environmental Research Laboratory in 2014. Please contact us at firstname.lastname@example.org if you have knowledge about the situation.
Part of FOIA Request DOC-NOAA-2018-001465 was a full waiver of potential fees pursuant to 5 CFR 1204.12. DOC rejected the request on June 18, 2018. The Sherry Chen Legal Defense Fund filed for an appeal on June 26, 2018.
End National Security Scapegoating Coalition
The End National Security Scapegoating Coalition serves to combat and end racial profiling of Asian Americans under the pretext of national security. It provides six guiding principles, demanding accountability from the government.
The Coalition offers legal resources including these "Know Your Rights" guides:
To report your experience of, or for free confidential legal assistance to, unexpected approach by federal law enforcement, please contact Advancing Justice-Asian Law Caucus attorney Christina Sinha at (415) 848-7733 or at email@example.com.
Ohio Chinese American Association
Ohio Chinese American Association (OCAA) was founded in March, 2016 as a Non-Profit Organization in Ohio. The motivation of establishing OCAA originated from the 2.20 rally to support former NYPD officer Peter Liang. The event was organized by a core committee of 7 people.
The cases of Sherry Chen, Dr. Xiaoxing Xi, Officer Peter Liang, and many others inspired OCAA to call for more active participation of Chinese Americans in civil and political matters in the American society.
"To protect the civil rights of ourselves and our next generation and generations to come, we have to tie up, speak up and stand up. We also need to reach out to both Chinese Americans and non-Chinese Americans who are in support of what we believe and what we do." OCAA states in its website at http://ohiocaa.org/.
The mission of OCAA is to unite all Chinese Americans in Ohio, raise their awareness of American civil rights and promote active participation in American society. OCAA led the rally for Sherry Chen in the MSPB hearings (2016-2018) and has a dedicated section for Sherry Chen in its website.
Book: Three Felonies a Day: How the Feds Target the Innocent
Three Felonies a Day: How the Feds Target the Innocent. Three Felonies a Day describes how the U.S. Department of Justice targets all segments of civil society by means of abusive prosecutions based upon unacceptably vague federal criminal statutes and regulations.
The average professional in this country wakes up in the morning, goes to work, comes home, eats dinner, and then goes to sleep, unaware that he or she has likely committed several federal crimes that day. Why? The answer lies in the very nature of modern federal criminal laws, which have exploded in number but also become impossibly broad and vague. In Three Felonies a Day, Harvey A. Silverglate reveals how federal criminal laws have become dangerously disconnected from the English common law tradition and how prosecutors can pin arguable federal crimes on any one of us, for even the most seemingly innocuous behavior. The volume of federal crimes in recent decades has increased well beyond the statute books and into the morass of the Code of Federal Regulations, handing federal prosecutors an additional trove of vague and exceedingly complex and technical prohibitions to stick on their hapless targets. No social class or profession is safe from this troubling form of social control by the executive branch, and nothing less than the integrity of our constitutional democracy hangs in the balance.