SW Legal Educational Publishing

Legal Impossibility Not a Defense to Conspiracy to Steal Trade Secrets
Description Appeals court held that defendants in criminal case involving conspiracy to steal trade secrets, in violation of Economic Espionage Act, do not have a right to see the trade secrets in question in an effort to prove that there were no trade secrets.
Topic Criminal Law
Key Words Economic Espionage Act, Trade Secret Theft, Legal Impossibility
C A S E   S U M M A R Y
Facts Hsu and others were indicted, following an FBI sting, for violating the Economic Espionage Act (EEA) of 1996 for conspiring to steal corporate trade secrets regarding a valuable anti-cancer drug. The defense requested a copy of the trade secret documents at stake. The government contended that the defense did not need access to the documents except in camera under supervision of the judge. The defense maintained that constitutional and procedural requirements of criminal prosecutions dictate full access to the documents so they could establish the defense of legal impossibility–they could not steal trade secrets that did not exist. District court agreed with the defense; government appealed.
Decision Reversed. In a case of first impression on this subject, the appeals court held that legal impossibility is not a defense to the charge of conspiracy and attempt to steal trade secrets, rather than a charge of actual theft of trade secrets, under the EEA. So long as the defendants believed they were going to steal trade secrets, it does not have to be proven that there were actually trade secrets at stake. Defense may see documents only after trial court has conducted an in camera review so that confidential information is protected.
Citation U.S. v. Hsu, — F.3d— (1998 WL 538221, 3rd Cir.)
155 F. 3d 189 (3rd Cir., 1998)

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