A Federal lawsuit was filed against the U.S. government under the Federal Tort Claims Act for the malicious prosecution and false arrest of Xiafen “Sherry” Chen in the United States District Court for the Southern District of Ohio by Michele L. Young, a local public interest lawyer and Peter J. Toren of Washington, D.C., a former federal prosecutor with the Computer Crime & Intellectual Property Section. He is the author of Intellectual Property and Computer Crime, and has represented many clients in this area and will serve as co-counsel.
“I am a loyal and hardworking American. I never could have imaged that I could become a victim of gross injustice due to misconduct by multiple government officials at different levels,” Sherry Chen said.
The injustice began with an e-mail missive by a U.S. government employee accusing Ms. Chen, “a U.S. Citizen, but a Chinese National” of being a spy on May 24, 2012. A year later, Ms. Chen was interrogated for hours and then on October 20, 2014, Ms. Chen, an adopted Midwesterner, an American citizen for close to 20 years, a hydrologist who saved lives, earning accolades and awards for her work, building and implementing a forecasting model that predicts flood across the Ohio River Valley, entered her Wilmington office at the National Weather Service and met the FBI.
A back door opened, and six FBI agents walked in and accused Ms. Chen of using a stolen password to download sensitive and secret information about our nation’s dams for a Chinese official. The password was not stolen, and no secret information was passed to a Chinese official. But the prosecution had begun and it was and is unending.
That day, arrested, placed in handcuffs and walked past her co-workers, Ms. Chen, a respected scientist, faced $1 million dollars in fines and 25 years in prison, and branded a spy. When Ms. Chen returned to her suburban home that night, she faced television news trucks parked in front of her house, and the news traveled across the world even to her family in China. Five months later, on March 10, 2015, a week before trial, the prosecutors voluntarily dismissed all of the charges against Ms. Chen, without explanation or apology. Ms. Chen’s reputation and life were ruined as she faced crushing legal fees and the loss of her reputation and her life’s work.
Ms. Chen was then fired from her job. On April 23, 2018, the Administrative Judge who reviewed the firing, Ms, Michele Szary Schroeder, wrote a 120 page opinion stating that Commerce officials buried the evidence that would have cleared Ms. Chen and that the two officials who fired Ms. Chen were “more concerned about being right than doing the right thing.” “Based on the unyielding nature of their testimony, I would not have been surprised if they rejected that 2 + 2 = 4,” wrote the Judge as she ordered the Commerce Department to reinstate Ms. Chen, pay her back pay and legal fees.
On June 18, 2018, the Commerce Department appealed. This appeal has not been heard because of lack of judges, and Ms. Chen has never returned to the National Weather Service or to her life-long work. Ms. Chen’s ordeal has been the subject of numerous news reports and pleas from across the nation for the government to stop, including the U.S. Commission on Civil Rights, the Congressional Asian Pacific American Caucus, the New York Times, the Washington Post, the Wall Street Journal, 60 Minutes, Committee of 100, United Chinese Americans, Asian Pacific Islander American Public Affairs, Ohio Chinese American Association, and many other respected civil rights and Asian American organizations across the nation.
“An unsubstantiated and patently racist accusation set into motion a modern-day witch hunt where hundreds of thousands of our tax dollars were spent to try to prove a 'Chinese national' a spy with exculpatory evidence buried by government officials. We must bring justice to Sherry Chen as a matter of decency, fairness and the American way. What happened to Ms. Chen should not happen to any American ever again,” said Michele Young.
According to Peter Toren, “If the government had properly conducted the investigation from the beginning, and not acted in a malicious manner targeting a loyal and patriotic American, Sherry Chen would never have been prosecuted and her life would not have been destroyed. We are working to bring justice to Sherry and restore her life to the extent possible, and perhaps to help prevent future injustices. As a former federal prosecutor, I had expected the federal government to have acted in a more responsible and ethical fashion.”
The Sherry Chen Legal Defense Fund (https://www.sherrychendefensefund.org/) has compiled the following Congressional responses, community support, and English and Chinese media coverage of the Sherry Chen case in the past four years:
Case 1:19-cv-00045-TSB complaint: http://bit.ly/19-cv-00045.
Biographies about the co-counsels: https://www.sherrychendefensefund.org/legal-counsels.html
For more information, please contact co-counsel:
1月18日，陈霞芬的律师团队依据《联邦侵权赔偿法》，向美国俄亥俄南区的美国地区法院提起了联邦诉讼，状告美国政府对陈霞芬恶意起诉（malicious prosecution）、錯误逮捕（false arrest）。这个案子的代理律师为 Michele L.Young 和Peter J. Toren。Michele Young 律师来自俄亥俄州，擅长公众利益方面的诉讼。Peter Toren 律师来自华盛顿，曾担任联邦检察官，擅长计算机犯罪与知识产权方面的诉讼，是《知识产权和计算机犯罪》一书的作者，并在这方面代理过众多客户；他是本案的共同律师。
就是在这一天，陈霞芬女士，一位受人尊敬的科学家，戴着手铐，当着同事的面被带走；她面临一百万美元的罚金和25年监狱，而且还被打上了“间谍”的标签。那天晚上，当她返回位于郊区的家里时，几辆电视新闻采访车已经停在她家门前，她被指控为间谍的新闻已传遍全世界，就连她在中国的家人都已获知这一消息。五个月后的2015年3月10日，在案件开审前的一周，检察官却主动撤销了对陈女士提起的所有指控，並且没有作任何解释，也没有作任何道歉。然而，留给陈霞芬的，却是高昂的法律费用、和名誉扫地 --- 她为之奋斗一生的工作，和她的声誉被毁之一旦。
更糟的是，2016年3月11日，陈霞芬女士被美国商务部（国家气象局的主管单位）解雇，理由却与被撤销的指控类似。2018年4月23日，审核陈女士被解雇一案的行政法官Michele Szary Schroeder女士出具了一篇长达120页的判决意见书，认为美国商务部官员隐藏了本来能够还陈女士清白的证据，解雇陈女士的两位官员“更关心的是让自己显得公正，而不是做公正的事情”。除了责令美国商务部恢复陈女士的工作、补发所欠工资、并支付法律费用，这位法官还指出：“从他们死不认错的证词来看，如果他们不承认2+2等于4，我也不会感到惊讶”。
Michele Young 律师表示，“一个毫无事实依据、明显带有种族偏见的指控，引发一场现代版的猎巫闹剧。政府官员隐藏了明明可以证明当事人无辜的证据，浪费数十万美元纳税人的钱，试图证明一个'中国人'是间谍。为了彰显尊严、公平和美国价值观，我们必须为陈霞芬女士伸张正义。发生在陈女士身上的事情再也不应该发生于任何美国人身上。”