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FBI agent misled magistrate judge to obtain search warrant in trade secrets case, federal judge says

April 4, 2018 GMT

FBI agent misled magistrate judge to obtain search warrant in trade secrets case, federal judge says

CLEVELAND, Ohio — A federal judge has determined a Cleveland FBI agent misled a magistrate judge to obtain a search warrant for the emails of an Iranian scientist accused of stealing trade secrets.

Sirous Asgari’s emails cannot be used at trial because FBI agent Timothy Boggs “knowingly or recklessly made material omissions” in obtaining a search warrant for them in 2013, U.S. District Judge James Gwin ruled.

Boggs included “wildly misleading” information in an affidavit, in an attempt to show a connection between Asgari and a university project the agent claimed was done in support of the Iranian Navy, Gwin ruled. The judge determined the agent did not show any connection.

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Gwin also suppressed emails the FBI took through a 2015 search warrant, saying it was heavily based on information agents obtained through the 2013 warrant.

“Considering the totality of the circumstances, the 2013 Boggs affidavit is so bare bones that it was unreasonable for the executing officer to believe it valid,” Gwin wrote.

(You can read the full order here or at the bottom of this story.)

The ruling came as Asgari, a professor at Sharif University in Tehran who studies metallurgical science, prepares to go to trial on charges of theft of trade secrets, wire fraud and visa fraud. While the trial was set for next week, Gwin canceled it Wednesday after the U.S. Attorney’s Office appealed his order.

Spokespeople for the U.S. Attorney’s Office and the FBI declined to comment, as did Asgari’s attorney, Federal Public Defender Stephen Newman.

Federal prosecutors say Asgari came to the U.S. in December 2011 on a tourist visa and did not say he had plans to visit Ohio. In fact, he traveled to Cleveland to conduct research at the Swagelok Center for Surface Analysis of Materials, a laboratory at Case Western Reserve University, according to a grand jury indictment.

He again came to the U.S. in November 2012, telling the State Department he was traveling for “tourism/medical treatment.” This time, he went to Cleveland to work full-time at Case Western to develop a project based on Swagelok Company technology, the indictment says. The project, paid for by the U.S. Navy Office of Naval Research, was to create and produce anti-corrosive stainless steel through a heating process.

Asgari left the U.S. in April 2013. Before that, he signed a non-disclosure agreement that said he would not disclose information about the project he worked on because it included trade secrets, prosecutors say.

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While in the U.S., though, Asgari sent emails to people in Iran, which included some of the project’s technical information. He also took metal samples he worked on with the treatment process back to Iran without Swagelok’s permission and marketed the treatment process data and research to Iranian companies and government institutions, the indictment states.

Asgari was under federal investigation for several years before his indictment in 2016.

When Boggs swore a search warrant in 2013, he wrote he had cause to believe Asgari had committed visa fraud, stole trade secrets and violated a trade embargo between the U.S. and Iran.

Boggs wrote Asgari had “ties to the government of Iran, through his employment with Sharif University” and that Sharif University had conducted research for the Iranian Navy, the judge wrote.

To support Sharif University’s connections to the Iranian government, the agent relied on a 2010 paper written by a Ph.D. student for a project the agent said supported the Iranian Navy.

Boggs also mentioned that Asgari’s visa applications did not mention traveling to the U.S. for research and development, Gwin wrote.

To the judge, none of this was enough.

Gwin wrote that while Asgari did not tell the State Department about working in the U.S. while here on a visa, he actually worked at Case Western in 2012 by happenstance, as another researcher was fired for being unqualified.

Worse, though, Gwin wrote Boggs’ inclusion of the student paper was “wildly misleading.”

He said the campus where the student attended college is about 600 miles from the campus where Asgari worked. Asgari also has no described connection to the paper and works at a university with more than 11,000 students and more than 600 academic staff, the judge said.

“Connecting Asgari to the Iranian government because of this paper would be akin to connecting a chemistry professor at the Ohio State University’s Columbus campus to the American government because an astronomy graduate student at Ohio State’s Mansfield campus once did commercial telescope research that NASA could conceivably use,” Gwin wrote.

Gwin also wrote that “mere employment as a professor at a state and privately supported university does not create probable cause.”

Finally, the judge wrote that Asgari’s November 2012 visa application also stated his visit was, at least in part, for business reasons.

Without the information he suppressed, the agent did not have probable cause to search, the judge ruled.

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