Judge bars feds from using statements of accused spy

What the FBI called an "explanation," a federal magistrate judge is labeling an interrogation that trampled the rights of an engineer charged in the nation's first nuclear espionage case involving China.

U.S. Magistrate Judge Bruce Guyton is barring federal prosecutors from using any statements Szuhsiung "Allen" Ho made after the FBI arrested him at a hotel in Atlanta, Ga., in April. Guyton ruled Ho invoked his right to an attorney three times during his hour-long interaction with FBI agents, but the lead agent persisted in trying to persuade Ho to cooperate with authorities and, in so doing, elicited responses from Ho that the government now seeks to use against him.

Ho is charged in U.S. District Court in Knoxville with procuring American nuclear know-how for the Chinese government.

Ho, his firm Energy Technology International and Chinese nuclear power plant China General Nuclear Power, were indicted in April in an alleged plot to lure nuclear experts in the U.S. into providing information to allow China to develop and produce nuclear material based on American technology and below the radar of the U.S. government.

It is the first such case in the nation brought under a provision of law that regulates the sharing of U.S. nuclear technology with certain countries deemed too untrustworthy to see it. Those countries include China. Although the technology is used for nuclear-power generation, the by-product of that process can be used to produce nuclear weapons.

The investigation began at the behest of the Tennessee Valley Authority, which contacted the FBI with concerns about one of its senior executives, engineer Ching Huey, who later admitted he was paid by Ho and, by extension, the Chinese government, to supply information about nuclear power production and even traveled to China on the Chinese government's dime. Huey agreed to cooperate in the probe. He has since struck a plea deal.

Ho's lead attorney, Peter Zeidenberg, challenged as unconstitutional the actions of FBI Agent William Leckrone after agents arrested Ho at the Twelve Atlantic Station hotel in Atlanta in April. Ho and unidentified colleagues from China General were in Atlanta for a technology summit, unaware the FBI was surveilling them and preparing to arrest Ho.

Guyton said in his ruling Ho immediately asked for a lawyer when Leckrone began advising him of his rights and repeated his request two more times. Leckrone has testified he had prepared a scripted "explanation" of the agency's investigation in hopes of persuading Ho to work for the American government "in matters of national security." Leckrone testified he never intended to ask Ho questions about his involvement in the espionage case but conceded he did make queries that touched on those allegations and told Ho "the government could bring other charges against him, could charge his wife and could take his house and retirement account," according to Guyton's ruling.

Federal prosecutors Charles Atchley Jr. and Bart Slabbekorn argued any statements Ho made were voluntary and argued Leckrone did not cross the line into interrogation. Guyton disagreed.

"The court finds that defendant Ho unequivocally invoked his right to counsel at the hotel and declined to answer any questions from the agents without counsel present," Guyton wrote. "The court also finds that the defendant did not initiate further communication with the agents following his assertion of his right to counsel. Instead, the agents initiated the conversation by asking the defendant if they could explain the investigation that led to his charges."

The prosecutors can appeal Guyton's ruling to Chief U.S. District Judge Tom Varlan.

Atchley and Slabbekorn this week did get a bit of good news. The 6th Circuit U.S. Court of Appeals, which handles federal appeals in four states including Tennessee, issued an opinion backing Guyton's decision - later approved by Varlan - to keep Ho locked up pending trial. Atchley has argued Ho has millions of dollars hidden away, spends the lion's share of his time in China and is a risk to flee to China should he be freed.

Ho is a naturalized citizen of the U.S. He was born in Taiwan but maintains a home and has a family, including a son, in China. Prior testimony has shown he spends far more time with his son and his son's mother in China than he does with his wife in Delaware. Atchley has argued Ho is an operative of the Chinese government. The defense denies that.

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