DOJ Asks Court to Reject Hytera’s Motion to Dismiss Theft of Trade Secrets Indictment
Defendant Hytera Communications is asking the U.S. District Court for Northern Illinois in Chicago to do what “no court has ever done,” and overrule a grand jury’s “probable cause finding” and dismiss its indictment for the government’s failure to present evidence of trade secrets, said the government’s opposition Friday (docket 1:20-cr-00688) to Hytera’s Jan. 11 motion (see 2401220002).
Sign up for a free preview to unlock the rest of this article
Export Compliance Daily combines U.S. export control news, foreign border import regulation and policy developments into a single daily information service that reliably informs its trade professional readers about important current issues affecting their operations.
A grand jury in May 2021 returned indictments listing multiple counts of trade secret theft against Hytera and seven of its engineers who developed digital mobile radios for Motorola in Malaysia beginning in 2004 (see 2301260060). The engineers quit Motorola in 2008 and 2009 to go to work for Hytera in Shenzhen, and the government alleges that they took Motorola’s DMR trade secrets with them when they left.
Hytera’s motion to dismiss must be denied for three reasons, said the government’s opposition, signed by Vikas Didwania, assistant U.S. attorney for the Northern District of Illinois in Chicago. First, the motion is untimely, as it was filed almost six months after the deadline for filing pretrial motions and is based on information available to Hytera since May 2022, it said. Hytera “offers no excuse for its delay,” it said.
Second, the U.S. Supreme Court “has barred courts from second-guessing a grand jury’s probable cause finding,” said the opposition. In any case, “ample evidence supported the grand jury’s finding” that Hytera and its engineers stole Motorola's DMR trade secrets, it said.
Third, Hytera’s preemptive claims regarding a constructive amendment and variance “are premature and wrong,” said the opposition. Such claims can be raised only after a trial and conviction, not in pretrial litigation, “because they must be based on proof at trial varying from the charge in the indictment,” it said.
Hytera’s assertions also don’t demonstrate a constructive amendment or variance because the government’s anticipated trial evidence “falls well within the charges set forth in the indictment,” said the opposition. Hytera’s argument is that if the government presents additional information at trial about the specified trade secrets not contained in the indictment, it will constitute an improper constructive amendment or variance.
Hytera asks the court to take the extraordinary step of mandating the amount of information presented to the grand jury and dismissing an indictment because the government didn’t call Hytera’s “preferred witnesses” to the grand jury, namely, Motorola engineers, said the opposition. But the sufficiency, or lack thereof, of a probable cause showing “is for the grand jury to decide, not Hytera,” it said.
A grand jury “conducts an independent ex parte proceeding for the purposes of instituting criminal proceedings using the threshold of probable cause,” said the opposition. It’s not a trial, it said. The grand jury isn’t an ultimate fact finder, as Hytera uses the term, the government said. Evidentiary rules don’t apply, it said.
Hytera’s complaints about the nature of the evidence the grand jury considered “are baseless,” said the opposition. Though the company complains that the grand jury should have been shown actual trade secret documents, the grand jury “was entitled to rely on testimony about the documents,” the government said. The view of Motorola engineers, experts in their field, that certain information constitutes trade secrets “provides a sufficient basis for the grand jury’s probable cause finding,” it said.
That’s especially so “when combined with voluminous other evidence, such as the extent and nature of Hytera’s theft and its use of such materials,” said the opposition. The court isn’t making an independent probable cause finding, it said. At most, it would be taking “a highly deferential view of the grand jury’s finding,” it said. From that “lens,” the voluminous testimony and exhibits presented “support the grand jury’s probable cause finding,” it said.
Hytera’s “extreme” position “illustrates perfectly” why SCOTUS has directed courts “to stay out of reviewing a grand jury’s finding,” said the opposition. Hytera is demanding a “mini trial” before the grand jury, an argument that SCOTUS has rejected, it said. The government’s presentation to the grand jury “was thorough and more than sufficient to sustain a probable cause finding,” it said. It doesn’t warrant the “extraordinary step” of dismissal of the indictment, it said.