A federal grand jury indicted a military engineer, his wife and his brother Tuesday for failing to register as Chinese agents in a case that the FBI had said involved an attempt to smuggle "extremely sensitive" U.S. warship technology to China.
The indictment alleged that Chi Mak, 65, of Downey, a naturalized U.S. citizen; his brother, Tai Wang Mak, 56, a Chinese national, and Chi Mak's wife, Rebecca Laiwah Chiu, 62, are agents of the People's Republic of China. Failing to register as a foreign agent carries a maximum possible penalty of 10 years in federal prison.
The indictment on the relatively minor crime, and not on espionage charges, underscores a recent pattern of federal authorities having difficulty making spying charges stick in cases involving Chinese operations, former counterintelligence officers said.
In an affidavit released after the three were arrested on Oct. 28, FBI Agent James Gaylord provided details of an investigation that involved phone taps, electronic surveillance and rooting around in garbage cans. Gaylord alleged that Chi Mak, an engineer employed by Power Paragon, a subsidiary of L-3/SPD Technologies, had given his brother several computer discs that contained Navy weapons data, specifically information on Quiet Electric Drive (QED) systems used in Navy warships. Tai Wang Mak was planning on traveling to China to hand the discs over to another man, the affidavit said.
Gaylord described QED as "highly sensitive" and added that agents checking Chi Mak's trash came up with two apparent wish-lists, written in Chinese, for information about additional military hardware, among them space-based electromagnetic intercept systems, submarine torpedoes, aircraft carrier electronic systems and early warning technologies.
A spokesman for the U.S. attorney's office said the three are not being charged with espionage because so far an analysis of the information contained on the intercepted discs turned up no classified information.
In recent years, federal authorities have had difficulty prosecuting cases of alleged Chinese espionage. In the 2000 case against Wen Ho Lee, a scientist working at Los Alamos National Laboratory, the government was accused of racial profiling and dropped most of the charges against Lee, though he did plead guilty to one count of mishandling nuclear weapons data. And the 2003 case against Katrina Leung, a Chinese American businesswoman who because of her affairs with two FBI agents was known as a Chinese Mata Hari, was thrown out of court after a judge concluded prosecutors had illegally blocked a key witness from talking to her attorneys.
Former counterintelligence officials say part of the problem involves the fact that Chinese operatives collect information in the United States in a fundamentally different way than spies from, say, the Soviet Union did during its heyday.
Paul Moore, who was the FBI's chief analyst on China until he retired in 1998, described combating China's intelligence operations as similar to policing against shoplifting. It happens all the time, and each theft is not that significant -- but the losses build up.
"China has a planned economy but a market-driven intelligence program," he said. "We have just the opposite."
T. Van Magers, a former FBI agent and specialist in Chinese counterintelligence, said pursuing cases against Chinese espionage is difficult because it is often much harder to tell what the Chinese are after and who they are working for.
"We see Chinese intelligence operatives who are not involved with intelligence collection and intelligence collection by people not identified as intelligence officers," he said. "We see operations that look like intelligence operations that turn out to be a case of commercial espionage. And vice versa."
Chi Mak's lawyer, Ronald Kaye, said his client had no criminal history: "Everything in his character shows a law-abiding, honest guy."