Unregistered Foreign Agents—Mak Brothers

The case of two Chinese brothers who had been arrested earlier this month for allegedly trying to pass military technology information to China, and which we discussed here, has taken a very curious turn. The men, Tai Wang Mak and Chi Mak, were refused bond because they were deemed to be flight risks.^[1]

Chi Mak was originally granted a $300,000 bond on November 18, but remained in custody.^[2] At yesterday’s hearing, federal prosecutors argued that his bond should be revoked because he was planning to retire in four months and was making plans to leave the US; why, they argued, would he stay in the US to face criminal charges that carry a maximum penalty of ten years in prison?^[3] US District Judge Cormac Carney apparently agreed. Noting that there is no extradition treaty between the US and China, if Chi Mak made it to China, Judge Carney said “I ain’t going to get him back.”^[4]

Tai Mak was denied bond because two FBI agents testified that he had pictures of himself in a Chinese military uniform, might be in the country to provide intelligence to China, and was generally “just plain not being truthful.”^[5]

The curious aspect to this case hinges on what the brothers were originally accused of doing, and what they are ultimately facing now. When they and their wives were arrested, the government charged them with possession of stolen US government property.^[6] However, in a superseding indictment, those charges were dropped, and new charges of failing to register as foreign agents were brought against the brothers and Chi Mak’s wife, Laiwah Chiu.^[7] Tai Mak’s wife, Fuk Heung Li, was named in a separate criminal complaint for allegedly helping foreign nationals gain citizenship through phony marriages; the wives are free on bond.^[8] While the brothers are no longer formally accused of possessing the secret information, those accusations still linger as questions concerning the necessity of encrypting data on a CD-ROM disc were raised at the hearing.^[9]

There was some hope yesterday that some light could be shed on why the initial accusations were dropped and replaced by the seemingly less nefarious charge.^[10] Those questions, however, were not answered in the hearing.^[11]

Acting as an Unregistered Foreign Agent
Under 18 U.S.C. § 951(a), it is a crime for a person to act in the United States as an agent of a foreign government without prior notification to the Attorney General. Violating this section is punishable by a fine, imprisonment for up to 10 years, or both.

“Agent of a foreign government” is defined as “an individual who agrees to operate within the United States subject to the direction or control of a foreign government or official.”^[12]

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[1] Claire Luna et al., Judges Refuse to Free Brothers in Chinese Spy Case, LA Times, Nov. 29, 2005, available here.
[2] Id.
[3] Id.
[4] Id.
[5] Id.
[6] Id.
[7] Id.
[8] Id.
[9] Id.
[10] See Jeremiah Marquez, FBI Official Due to Testify in Spy Case, San Jose Mercury News, Nov. 28, 2005, available here.
[11] See Gillian Flaccus, Judge Overrules Bond for Engineer Accused of Being China Agent, Monterey Herald, Nov. 29, 2005, available here.
[12] 18 U.S.C. § 951(d).