## Facts

- DuPont developed and used proprietary chloride-route technology to produce titanium dioxide (TiO₂), a commercially valuable process protected through confidentiality measures and restricted access.
- Walter Liew and his company, USA Performance Technology, Inc. (USAPTI), sought to obtain DuPont’s confidential TiO₂ process information, including technical documents and compilations of process data, for the benefit of Chinese entities.
- Liew and USAPTI solicited DuPont employees to obtain and transmit DuPont’s confidential chloride-route information.
- DuPont filed a civil trade-secret lawsuit against Liew; conduct in that litigation led to federal charges alleging interference with evidence and witnesses.
- A jury convicted Liew and USAPTI of multiple Economic Espionage Act (EEA) offenses involving conspiracy and attempt to commit economic espionage and theft of trade secrets, possession of misappropriated trade secrets, and conveying trade secrets.
- The jury also convicted defendants of conspiracy to tamper with witnesses and evidence, and convicted Liew separately of witness tampering.

## Issues

1. Whether the district court’s trade-secret jury instructions—particularly the instruction permitting “compilations” to qualify as trade secrets—misstated the EEA or misled the jury.
2. Whether the court erred by refusing proposed defense instructions addressing public disclosure, disclosure to a single recipient, reverse engineering, and general knowledge.
3. Whether challenges to the conspiracy and attempt instructions (including constructive amendment and failure to require a finding of an “actual” trade secret) were preserved, and if so, whether the instructions were erroneous.
4. Whether the evidence was sufficient to prove the DuPont information constituted EEA “trade secrets” and to sustain the substantive EEA counts.
5. Whether the evidence supported convictions for conspiracy to obstruct justice and for witness tampering based on defendants’ conduct during the civil litigation.
6. Whether nondisclosure of FBI rough interview notes concerning a deceased co-conspirator required relief under Brady, and what review was required.

## Decision

- Affirmed the EEA trade-secret-related convictions, concluding the trade-secret instructions were not reversible error and the evidence supported the trade-secret findings.
- Affirmed the district court’s refusal to give separate defense instructions on public disclosure, single-recipient disclosure, reverse engineering, and general knowledge, finding the instructions given adequately stated the statutory standard.
- Held defendants waived appellate review of certain objections to the conspiracy and attempt instructions; the challenged convictions remained intact.
- Reversed and vacated the conspiracy-to-obstruct-justice conviction because the statement at issue was too close to a general denial to constitute obstruction.
- Reversed and vacated Liew’s witness-tampering conviction for insufficient evidence of intimidation, threats, or corrupt persuasion.
- Remanded for resentencing and for in camera review of potential Brady material related to FBI rough notes.

## Legal Principles

- Under the EEA, a “trade secret” may consist of a compilation of information; individual elements may be publicly known if the overall compilation has independent economic value and is subject to reasonable secrecy measures.
- A trial court need not give requested defense instructions when the instructions as a whole correctly convey the EEA’s trade-secret definition and the additional instructions would be redundant or confusing.
- Instructional challenges may be forfeited or waived on appeal when not properly preserved in the district court.
- Obstruction liability cannot rest on statements that effectively function as a general denial; the conduct must meet the statute’s obstruction elements.
- Witness tampering requires proof beyond a reasonable doubt of intimidation, threats, or corrupt persuasion; insufficient evidence of those elements requires reversal.
- Failure to produce investigative rough notes does not automatically establish a Brady violation; in camera review may be ordered to assess whether undisclosed material is favorable and material.

## Conclusion

The Ninth Circuit upheld the core EEA convictions involving DuPont’s TiO₂ chloride-route trade secrets (including compilation-based secrets) but vacated the obstruction-conspiracy and witness-tampering counts for legal and evidentiary insufficiency, remanding for resentencing and limited in camera review of potential Brady material.


United States v. Liew, 856 F.3d 585 (9th Cir. 2017)