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United States v. O'Rourke

United States District Court, N.D. Illinois, Eastern Division

October 9, 2019




         In September 2015, shortly before leaving his current employer to go work for an overseas competitor, Defendant Robert O'Rourke downloaded over 1, 900 documents from his employer's network onto a personal hard drive. He was later arrested boarding a plane to China while carrying some of the downloaded information in his luggage. O'Rourke was subsequently charged with thirteen counts of theft and attempted theft of trade secrets in violation of 18 U.S.C. § 1832(a). In April 2019, a jury returned a mixed verdict finding him guilty of seven of those counts and acquitting him of the remainder. Now before the Court is O'Rourke's motion for a new trial. (Dkt. No. 123.) For the reasons that follow, the motion is denied.


         O'Rourke worked as a metallurgical engineer and salesperson for Dura-Bar from 1984 until September 15, 2015. Dura-Bar is an Illinois-based manufacturer in the iron foundry business. It manufactures specialized iron bars using a process called continuous cast iron. O'Rourke was unhappy with how Dura-Bar was being managed. Consequently, he accepted a position as vice president of research and development with Hualong, a China-based corporation that also manufactured cast-iron products, and resigned from Dura-Bar effective immediately on August 12, 2015. When he resigned, O'Rourke did not tell his former supervisors and co-workers that he planned to go work for another continuous cast-iron producer. Notwithstanding his resignation, O'Rourke subsequently agreed to stay at Dura-Bar for a transition period, and it was during that stretch of time that the actions forming the base of this case took place.

         On September 13, 2015, a Sunday two days before his final day at Dura-Bar, O'Rourke used his key to enter the Dura-Bar facility in Woodstock, Illinois. He downloaded over 1, 900 documents from the Dura-Bar network onto a personal hard drive before departing. He told no one at Dura-Bar that he had done so. On September 15, 2015, O'Rourke attended an exit interview before going out for drinks with coworkers. It was at that point that O'Rourke, for the first time, informed his former colleagues that he would be going to China to work for Hualong, a company Dura-Bar viewed as a competitor. The colleagues reported this to Dura-Bar's management, who quickly discovered that O'Rourke had taken copies of documents without authorization. Dura-Bar contacted law enforcement, which obtained emergency search warrants for O'Rourke's person and residence. On September 21, 2015, O'Rourke was stopped by United States Customs and Border Patrol as he attempted to board a flight to China. In his checked luggage was the hard drive with the documents he had taken from Dura-Bar. In July 2017, a grand jury returned a 13-count Indictment against O'Rourke, charging him with stealing, downloading, and possessing trade secrets (and attempting to do the same) in violation of 18 U.S.C. § 1832.

         The Government organized the documents it considered to be trade secrets into five categories. For each category, with the exception of Category One, the Indictment charges O'Rourke in three separate counts for stealing, downloading, and possessing the information. Category One consists of a single 1993 document entitled “Machine Preheat - Start Up and Operation” that details Dura-Bar's 1993-era manufacturing process (Count I). Category Two contains lab reports detailing results from experiments testing material for clients to search for defects and vetting combinations of materials for quality (Counts II, III, and IV). Category Three includes experiment reports saved in an electronic subfolder on Dura-Bar's hard drive entitled “IR Camera.” (Counts V, VI, and VII). Category Four includes experiment reports saved in an electronic subfolder on Dura-Bar's hard drive entitled “IR2.” (Counts VIII, IX, and X). Finally, Category Five consists of alloy experiment data reports that tested different inoculations to reduce defects in the composition of material for the purpose of improving product quality. (Counts XI, XII, and XIII.) Each Category, aside from Category One, consisted of a large number of individual documents. And for each Category, the Government charged O'Rourke with both the substantive offenses of stealing, downloading, and possessing trade secrets, and the offenses of attempting to do so. The verdict form required the jury to find O'Rourke guilty or not guilty with respect to each count; and within each count, the jury was further required to specify whether they found O'Rourke guilty or not guilty based on the substantive offense, the attempt offense, or both.

         The charges against O'Rourke proceeded to trial in February 2019. At trial, O'Rourke did not contest that he took materials without Dura-Bar's permission. But his counsel contended that the documents in question were not trade secrets and that he did not believe them to be so when he took them. Following a nearly three-week trial, a jury found O'Rourke guilty of seven counts of the Indictment: attempting to steal the Machine Preheat Document (Count I); stealing, downloading, possessing, and attempting to steal lab reports (Counts II, III, and IV); and stealing, downloading, and possessing alloy experiment reports (Counts XI, XII, XIII). With respect to all the other counts, the jury returned a not guilty verdict. The mixed verdict thus suggests that with respect to Count I, the jury did not believe the Machine Preheat Document was actually a trade secret but that O'Rourke believed it to be one; with respect to the lab reports in Counts II through IV, the jury concluded that at least one document was a trade secret and that O'Rourke believed what he was taking were trade secrets; with respect to Counts V through X, the jury concluded that the IR Camera and IR2 documents were not trade secrets and O'Rourke did not believe they were; and with respect to the alloy experiment data reports in Counts XI through XIII, the jury concluded that the reports were not trade secrets but O'Rourke believed them to be when he took them.

         O'Rourke now contends that multiple errors by the Court and a paucity of evidence presented by the Government warrant granting him a new trial. First, he contends that the Court should not have allowed the Government to prosecute O'Rourke on both attempt and substantive charges where O'Rourke did not engage in uncompleted conduct. He then takes issue with three different sets of jury instructions, contending that (1) the jury was wrongly instructed that the Government did not need to prove O'Rourke knew the information he took was a trade secret, (2) the instruction given on how a unique combination of information could be a trade secret did not require the Government to identify the trade secret with enough specificity, and (3) the jury instruction given on unanimity allowed the jury to convict O'Rourke without agreeing on what precise information constituted a trade secret. Finally, O'Rourke argues that the cumulative weight of the evidence on the record leaves such strong doubt of O'Rourke's guilt that failing to grant a new trial would be a miscarriage of justice.


         Federal Rule of Criminal Procedure 33 provides that, “[u]pon the defendant's motion, the court may vacate any judgment and grant a new trial if the interest of justice so requires.” Fed. R. Crim. P. 33(a). The Court may grant a new trial under Rule 33 “if the verdict is so contrary to the weight of the evidence that a new trial is required in the interest of justice” or “if there is a reasonable possibility that a trial error had a prejudicial effect upon the jury's verdict.” United States v. Van Eyl, 468 F.3d 428, 436 (7th Cir. 2006). However, “[a] jury verdict in a criminal case is not to be overturned lightly.” United States v. Santos, 20 F.3d 280, 285 (7th Cir. 1994). In other words, “[t]he court should grant a motion for a new trial only if the evidence ‘preponderate[s] heavily against the verdict, such that it would be a miscarriage of justice to let the verdict stand.'” United States v. Swan, 486 F.3d 260, 266 (7th Cir. 2007) (quoting United States v. Reed, 875 F.2d 107, 113 (7th Cir. 1989)).

         I. The Attempt Charges

         O'Rourke first takes issue with the Court's decision to allow the Government to pursue an “attempt” theory of criminal liability at trial. Specifically, the Government sought, and the jury was given, an instruction that would permit O'Rourke to be found guilty of attempting the alleged offenses where he believed he was stealing, possessing, or downloading a trade secret, even though the information was not actually a trade secret. O'Rourke contends that § 1832 only allows for an attempt violation when a defendant tries and fails to misappropriate actual trade secrets. Thus, according to O'Rourke, if he actually succeeded in stealing, downloading, and possessing the documents described in the Indictment, he could only be held responsible for committing the substantive offense and could not be held responsible for attempting to commit that offense.

         A person commits the offense of attempt when, with the intent to commit a specific offense, he does any act that constitutes a substantial step toward the commission of that offense. See United States v. Muratovic, 719 F.3d 809, 815 (7th Cir. 2013) (attempt convictions for robbery require the specific intent to commit the robbery and a substantial step taken toward that end). Here, the attempt violations for which O'Rourke was charged do not require proof that a trade secret exists; instead, they require proof that the individual taking the information at issue believed that information to be a trade secret. United States v. Hsu, 155 F.3d 189, 198 (3d Cir. 1998) (holding that “Congress could not have intended [Economic Espionage Act] attempt crimes to be subject to the somewhat obscure and rarely used common law defense of legal impossibility”). In Hsu, the Third Circuit considered legislative history and policy rationales in finding that the common law legal impossibility defense did not apply to violations of the Economic Espionage Act (“EEA”), concluding instead that a defendant is guilty of attempting to take trade secrets if

acting with the kind of culpability otherwise required for commission of the crime, he ... purposely does or omits to do anything that, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.

Id. (quoting Model Penal Code § 5.01(1)(c) (emphasis added)). Since the defendant's guilt rests on the “circumstances as he believes them to be, ” the Third Circuit concluded that the government did not need to prove that an actual trade secret was involved. Id. at 203. In so holding, the Third Circuit noted that the contrary conclusion would require the government to turn over actual trade secrets to would-be thieves in sting operations in order to charge them with attempted theft. Id. at 202. An attempt charge thus allows the government to charge not only individuals who are unsuccessful ...

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