Federal prosecutors made the “extremely rare” decision to dismiss an indictment against a Wilmington hydrologist accused of stealing sensitive government property and lying to investigators.
Xiafen “Sherry” Chen, 59, was fired last year from her job with the National Oceanic and Atmospheric Administration (NOAA) for accessing and downloading United States government data about the country’s dams. Chen’s trial was to begin Monday. She could have faced a long prison sentence if found guilty.
On Tuesday, prosecutors filed a document with Dayton’s U.S. District Court asking Judge Thomas Rose to dismiss the eight-count indictment a day after defense attorney Peter Zeidenberg met with U.S. Attorney Carter Stewart in Columbus. Rose granted the dismissal Wednesday.
“(Prosecutors) dismissed the case as a result of our discussions, and I think they’re in agreement that the case lacked merit and wasn’t appropriate in proceeding,” Zeidenberg said Wednesday. “I don’t think anything is going to change that analysis.”
Last month, Chen pleaded not guilty to one count of theft of U.S. government property, two counts of accessing without authority a protected U.S. government computer to obtain information and five counts of making materially false statements to federal investigators stemming from a Jan. 15 superseding indictment. The original indictment covered events from 2012 and 2013. Chen was arrested at her workplace in October.
Assistant U.S. attorney Dwight Keller said the dismissal was “extremely rare,” and Chen’s case was the first such motion in his 13 years on the job: “The U.S. Attorney (Stewart) exercised his discretionary power.”
Zeidenberg and co-counsel Thomas Zeno had argued in court and in filings that the government overreached in trying to tie Chen to a colleague in China and seeking to bring up that connection to a jury.
“They, originally, thought that this could be some kind of a case of espionage and it turned out that it wasn’t,” Zeidenberg said. “She never provided any information that wasn’t public to anyone.”
Defense attorneys argued that prosecutors shouldn’t be allowed to present “background noise” evidence about China when the charges only addressed that Chen used a co-worker’s password to access and download information from the National Inventory of Dams.
Zeidenberg said Chen even referred a Chinese colleague to Deborah Lee, the chief of water management for the U.S. Army Corps of Engineers’ Great Lakes and Ohio River Division, for more non-sensitive data.
Court documents show Chen is from China but moved to the United States in 1992 and became a naturalized citizen. Her work at NOAA involved the Ohio River, for which she won an award for life-saving forecasts during record flooding in 2011. Court filings show that during a 2012 trip to China to visit her elderly parents, Chen met with an ex-colleague who had become a Chinese government hydrologist. He asked Chen for U.S. dams data, according to court documents.
“The government has an awesome amount of power and discretion,” Zeidenberg said. “Prosecutors are careful and judicious. Occasionally, mistakes are made. What I think is really remarkable, and frankly, commendable, is that in this case the government was willing to listen with an open mind, and then act.”
Rose ruled Monday to deny a defense motion to dismiss the indictment and issued split decisions about various motions seeking to include or exclude certain evidence at trial.
“I hope that she is able to get her job back and be reinstated,” Zeidenberg said, adding that he wished Chen had never been charged, had her life derailed for six months and exhausted her savings to hire attorneys.
Zeidenberg said Chen would not comment, but he said she is relieved that the case is over and hopes to work again. He said it has been “an incredibly traumatic event, and it has been an extremely difficult and painful time” for his client.
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