United States v. Lange, Matthew ( 2002 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 00-1681
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MATTHEW R. LANGE,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 99-CR-174—J.P. Stadtmueller, Judge.
____________
ARGUED SEPTEMBER 14, 2000—DECIDED NOVEMBER 26, 2002
____________
Before CUDAHY, EASTERBROOK, and RIPPLE, Circuit
Judges.
EASTERBROOK, Circuit Judge. Matthew Lange has been
convicted of violating 18 U.S.C. §1832, part of the Eco-
nomic Espionage Act of 1996. This statute makes it a fel-
ony to sell, disseminate, or otherwise deal in trade secrets,
or attempt to do so, without the owner’s consent. Lange
stole computer data from Replacement Aircraft Parts Co.
(RAPCO), his former employer, and attempted to sell the
data to one of RAPCO’s competitors. He allows that his acts
violated §1832, if the data contained “trade secrets,” but
denies that the data met the statutory definition:
the term “trade secret” means all forms and types
of financial, business, scientific, technical, econom-
2 No. 00-1681
ic, or engineering information, including patterns,
plans, compilations, program devices, formulas,
designs, prototypes, methods, techniques, processes,
procedures, programs, or codes, whether tangible
or intangible, and whether or how stored, compiled,
or memorialized physically, electronically, graphi-
cally, photographically, or in writing if—(A) the
owner thereof has taken reasonable measures to
keep such information secret; and (B) the informa-
tion derives independent economic value, actual or
potential, from not being generally known to, and
not being readily ascertainable through proper
means by, the public[.]
18 U.S.C. §1839(3). Lange’s appeal requires us to apply
this definition.
RAPCOis in the business of making aircraft parts for
the aftermarket. It buys original equipment parts, then
disassembles them to identify (and measure) each compo-
nent. This initial step of reverse engineering, usually
performed by a drafter such as Lange, produces a set
of measurements and drawings. See generally Pamela
Samuelson & Suzanne Scotchmer, The Law and Economics
of Reverse Engineering, 111 Yale L.J. 1575, 1582-94 (2002).
Because this case involves an effort to sell the intellec-
tual property used to make a brake assembly, we use
brakes as an illustration.
Knowing exactly what a brake assembly looks like
does not enable RAPCO to make a copy. It must figure out
how to make a substitute with the same (or better) tech-
nical specifications. Brakes rely on friction to slow the
airplane’s speed by converting kinetic energy to heat.
Surfaces that do this job well are made by sintering—the
forming of solid metal, usually from a powder, without
melting. Aftermarket manufacturers must experiment with
different alloys and compositions until they achieve a
No. 00-1681 3
process and product that fulfils requirements set by the
Federal Aviation Administration for each brake assembly.
Completed assemblies must be exhaustively tested to
demonstrate, to the FAA’s satisfaction, that all require-
ments have been met; only then does the FAA certify the
part for sale. For brakes this entails 100 destructive
tests on prototypes, bringing a spinning 60-ton wheel to
a halt at a specified deceleration measured by a dynamo-
meter. Further testing of finished assemblies is required.
It takes RAPCO a year or two to design, and obtain approv-
al for, a complex part; the dynamometer testing alone
can cost $75,000. But the process of experimenting and
testing can be avoided if the manufacturer demonstrates
that its parts are identical (in composition and manufac-
turing processes) to parts that have already been certi-
fied. What Lange, a disgruntled former employee, offered
for sale was all the information required to obtain certi-
fication of several components as identical to parts for
which RAPCO held certification. Lange included with the
package—which he offered via the Internet to anyone
willing to pay his price of $100,000—a pirated copy of
AutoCAD®, the computer-assisted drawing software that
RAPCO uses to maintain its drawings and specifications
data. One person to whom Lange tried to peddle the data
informed RAPCO, which turned to the FBI. Lange was ar-
rested following taped negotiations that supply all the
evidence necessary for conviction—if the data satisfy the
statutory definition of trade secrets.
One ingredient of a trade secret is that “the owner there-
of has taken reasonable measures to keep such informa-
tion secret”. Lange contends that the proof fell short, but
a sensible trier of fact (in this bench trial, the district
judge) could have concluded that RAPCO took “reasonable
measures to keep [the] information secret”. RAPCO stores
all of its drawings and manufacturing data in its CAD room,
which is protected by a special lock, an alarm system, and
4 No. 00-1681
a motion detector. The number of copies of sensitive
information is kept to a minimum; surplus copies are
shredded. Some information in the plans is coded, and
few people know the keys to these codes. Drawings and
other manufacturing information contain warnings of
RAPCO’s intellectual-property rights; every employee re-
ceives a notice that the information with which he works
is confidential. None of RAPCO’s subcontractors receives
full copies of the schematics; by dividing the work among
vendors, RAPCO ensures that none can replicate the pro-
duct. This makes it irrelevant that RAPCO does not re-
quire vendors to sign confidentiality agreements; it relies
on deeds (the splitting of tasks) rather than promises to
maintain confidentiality. Although, as Lange says, engi-
neers and drafters knew where to get the key to the CAD
room door, keeping these employees out can’t be an ingre-
dient of “reasonable measures to keep [the] information
secret”; then no one could do any work. So too with plans
sent to subcontractors, which is why dissemination to
suppliers does not undermine a claim of trade secret. See
Rockwell Graphic Systems, Inc. v. DEV Industries, Inc.,
925 F.2d 174, 177 (7th Cir. 1991).
The second ingredient is that “the information derives
independent economic value, actual or potential, from
not being generally known to, and not being readily as-
certainable through proper means by, the public[.]” Accord-
ing to Lange, all data obtained by reverse engineering
some other product are “readily ascertainable . . . by
the public” because everyone can do what RAPCO did: buy
an original part, disassemble and measure it, and make
a copy. The prosecutor responds to this contention by ob-
serving that “the public” is unable to reverse engineer
an aircraft brake assembly.
The prosecutor’s assumption is that the statutory ref-
erence in §1839(3) to “the public” means the general
public—the man in the street. Ordinary people don’t
No. 00-1681 5
have AutoCAD and 60-ton flywheels ready to hand. But
is the general public the right benchmark? The statute
itself does not give an answer: the word “public” could
be preceded implicitly by “general” as the prosecutor
supposes, but it also could be preceded implicitly by “edu-
cated” or “economically important” or any of many
other qualifiers. Once we enter the business of adding
words to flesh out the statute—and even the addition of
“general” to “public” does this—it usually is best to ask
what function the law serves. In criminal cases it also is
important to inquire whether the unelaborated text is
ambiguous, because if it is the language should be read
to prevent surprises. That’s the function of the Rule of
Lenity. See Staples v. United States, 511 U.S. 600, 619
(1994). Some elaboration is needed. Although the third
circuit assumed in United States v. Hsu, 155 F.3d 189, 196
(3d Cir. 1998), that “general” belongs in front of “public,” it
did not explain why (nor was this important to, or a part
of, Hsu’s holding). Commentators disagree about who
“the public” includes. Compare Geraldine Szott Moohr,
The Problematic Role of Criminal Law in Regulating the
Use of Information: The Case of the Economic Espionage
Act, 80 N.C. L. Rev. 853, 878-79 (2002), with Arthur J.
Schwab & David J. Porter, Guarding the Crown Jewels:
A Guide to Protecting Your Trade Secrets 85-86 (2002). It
is therefore worth a look—though it turns out not to be
dispositive here, any more than it was in Hsu.
A problem with using the general public as the refer-
ence group for identifying a trade secret is that many
things unknown to the public at large are well known to
engineers, scientists, and others whose intellectual prop-
erty the Economic Espionage Act was enacted to protect.
This makes the general public a poor benchmark for sep-
arating commercially valuable secrets from obscure (but
generally known) information. Suppose that Lange had
offered to sell Avogadro’s number for $1. Avogadro’s
number, 6.02 × 1023, is the number of molecules per mole
6 No. 00-1681
of gas. It is an important constant, known to chemists
since 1909 but not to the general public (or even to all
recent graduates of a chemistry class). We can’t believe
that Avogadro’s number could be called a trade secret.
Other principles are known without being comprehended.
Most people know that E = mc2, but a pop quiz of the
general public would reveal that they do not understand
what this means or how it can be used productively.
One might respond that the context of the word “public”
addresses this concern. The full text of §1839(3)(B) is: “the
information derives independent economic value, actual
or potential, from not being generally known to, and not
being readily ascertainable through proper means by, the
public”. Avogadro’s number and other obscure knowl-
edge is not “generally known to” the man in the street
but might be deemed “readily ascertainable to” this hypo-
thetical person. It appears in any number of scientific
handbooks. Similarly one can visit a library and read
Einstein’s own discussion of his famous equation. See
Albert Einstein, Relativity: The Special and General Theory
(1920). Members of the general public can ascertain even
abstruse information, such as Schrödinger’s quantum
field equation, by consulting people in the know—as mem-
bers high school dropouts can take advantage of obscure
legal rules by hiring lawyers. But this approach uses the
phrase “readily available” to treat the “general public” as
if it were more technically competent, which poses the
question whether it would be better to use a qualifier
other than “general” in the first place.
Section 1839(3) was derived from the definition of a
trade secret in the Uniform Trade Secrets Act, which
many states have adopted. Section 1(4) of the Uniform
Act provides:
“Trade secret” means information, including a for-
mula, pattern, compilation, program, device, meth-
od, technique, or process, that:
No. 00-1681 7
(i) derives independent economic value, actual or
potential, from not being generally known to, and
not being readily ascertainable by proper means
by, other persons who can obtain economic value
from its disclosure or use, and
(ii) is the subject of efforts that are reasonable
under the circumstances to maintain its secrecy.
Section 1839(3)(B) replaces “persons who can obtain eco-
nomic value from its disclosure or use” with “the public”.
The prosecutor believes that the substitution supports
the conclusion that Congress referred to the general pub-
lic. Yet one could say instead that “the public” is short-
hand for the longer phrase, which then would be read as
“the economically relevant public”—that is, the persons
whose ignorance of the information is the source of its
economic value. Let us recur to the statutory context of
“the public”:
the information derives independent economic
value, actual or potential, from not being generally
known to, and not being readily ascertainable
through proper means by, the public[.]
Section 1839(3)(B) as a whole refers to the source of eco-
nomic value—that the information is not known to or
easily discoverable by persons who could use it produc-
tively. To make this work, either the phrase “readily
ascertainable” or the phrase “the public” must be under-
stood to concentrate attention on either potential users
of the information, or proxies for them (which is to say,
persons who have the same ability to “ascertain” the
information). And for purposes of this case those people
would be engineers and manufacturers of aircraft parts,
who have ample means to reverse engineer their competi-
tors’ products. It is by keeping secrets from its rivals that
RAPCO captures the returns of its design and testing
work. Thus it is unnecessary here to decide whether “gen-
8 No. 00-1681
eral” belongs in front of “public”—for even if it does, the
economically valuable information is not “readily ascer-
tainable” to the general public, the educated public, the
economically relevant public, or any sensible proxy for
these groups.
Another line of prosecutorial argument starts with the
fact that §1832(a)(4) makes it a crime to attempt to sell
trade secrets without the owner’s permission. Even if
Lange did not have real trade secrets in his possession,
the argument goes, he thought he did and therefore
may be penalized for an attempted sale. The argument
finds support in Hsu, which held that in order to avoid
graymail—the threat that to obtain a conviction the
prosecutor must disclose the secret by putting it in the
trial record—a case may be based on §1832(a)(4) without
disclosing all details of the trade secret. Accord, United
States v. Pin Yen Yang, 281 F.3d 534, 543-44 (6th Cir.
2002). We agree with the general approach of these deci-
sions. Hsu analogized the attempted sale of information
believed to be a trade secret to an attempt such as shoot-
ing a corpse, believing it to be alive, or selling sugar,
believing it to be cocaine. Events of this sort underlie
the maxim that factual impossibility is no defense to a
prosecution for attempt. See United States v. Bailey,
227 F.3d 792, 797 (7th Cir. 2000); United States v.
Saunders, 166 F.3d 907, 916 (7th Cir. 1999); United States
v. Cotts, 14 F.3d 300, 307 (7th Cir. 1994). This does not
mean, however, that the defendant’s belief alone can
support a conviction. All attempt prosecutions depend on
demonstrating that the defendant took a substantial
step toward completion of the offense, which could have
been carried out unless thwarted. Braxton v. United States,
500 U.S. 344 (1991). Although the American Law Insti-
tute recommends a definition of attempt linked closely to
intent, Model Penal Code §5.01(1)(c), the Supreme Court
has not embraced this view and demands in cases under
No. 00-1681 9
federal law that the prosecutor establish a probability
of success. See, e.g., Spectrum Sports, Inc. v. McQuillan,
506 U.S. 447 (1993) (“dangerous probability” of success is
an ingredient of attempted monopolization).
An attempted murder may be thwarted by substituting
a sack of flour for the intended victim; a sale of drugs
may be thwarted by substituting sugar for cocaine, or rock
candy for crack. These situations present a good chance
of success, but for the intervention. So does “the disgrun-
tled former employee who walks out of his former com-
pany with a computer diskette full of engineering sche-
matics” (Hsu, 155 F.3d at 201)—a fair description of
Lange’s conduct (though diskettes are obsolete). See also
United States v. Martin, 228 F.3d 1, 10-12 (1st Cir. 2000).
A sale of trade secrets may be thwarted by substituting
a disk with the collected works of Shakespeare for the
disk that the defendant believed contained the plans
for brake assemblies, or by an inadvertent failure to
download the proper file. The attempted sale of the disk
is a culpable substantial step. But it is far less clear
that sale of information already known to the public
could be deemed a substantial step toward the offense,
just because the defendant is deluded and does not under-
stand what a trade secret is. Selling a copy of Zen and
the Art of Motorcycle Maintenance is not attempted eco-
nomic espionage, even if the defendant thinks that the
tips in the book are trade secrets; nor is sticking pins in
voodoo dolls attempted murder. Booksellers and prac-
titioners of the occult pose no social dangers, certainly
none of the magnitude of those who are tricked into shoot-
ing bags of sand that have been substituted for targets
of assassination. Lange was more dangerous than our
bookseller but much less dangerous than our hypothetical
assassin. Perhaps data purloined from an ex-employer is
sufficiently likely to contain trade secrets to justify call-
ing the preparation for sale a substantial step toward
10 No. 00-1681
completion of the offense, and thus a culpable attempt,
even if the employee stole the wrong data file and did
not get his hands on the commercially valuable informa-
tion. We need not pursue the subject beyond noting the
plausibility of the claim and its sensitivity to the
facts—what kind of data did the employee think he
stole, and so on. For it is not necessary to announce a
definitive rule about how dangerous the completed acts
must be in trade secret cases: the judge was entitled to
(and did) find that Lange had real trade secrets in his
possession.
Lange wants us to proceed as if all he tried to sell
were measurements that anyone could have taken with
calipers after disassembling an original-equipment part.
Such measurements could not be called trade secrets if,
as Lange asserts, the assemblies in question were easy
to take apart and measure. But no one would have paid
$100,000 for metes and bounds, while Lange told his
customers that the data on offer were worth more than
that asking price. Which they were. What Lange had,
and tried to sell, were the completed specifications and
engineering diagrams that reflected all the work com-
pleted after the measurements had been taken: the metal-
lurgical data, details of the sintering, the results of the
tests, the plans needed to produce the finished goods,
everything required to get FAA certification of a part sup-
posedly identical to one that had been approved. Those
details “derive[d] independent economic value, actual or
potential, from not being generally known to, and not
being readily ascertainable through proper means by,
the public[.]” Every firm other than the original equip-
ment manufacturer and RAPCO had to pay dearly to de-
vise, test, and win approval of similar parts; the de-
tails unknown to the rivals, and not discoverable with
tape measures, had considerable “independent economic
value . . . from not being generally known”. A sensible trier
No. 00-1681 11
of fact could determine that Lange tried to sell trade
secrets. It was his customer’s cooperation with the FBI, and
not public access to the data, that prevented closing of
the sale.†
Thirty months’ imprisonment is the sentence Lange
is serving. Not much, as sentences go these days, but
Lange says it is too high. He protests two decisions that
influenced its length: first, the district judge’s conclu-
sion that he used special skill, which adds two levels
under U.S.S.G. §3B1.3; second, the judge’s refusal to de-
duct two levels for acceptance of responsibility under
U.S.S.G. §3E1.1. Appellate review of these contentions is
deferential, see 18 U.S.C. §3742(e); Buford v. United
States, 532 U.S. 59 (2001); United States v. Gomez, 24 F.3d
924, 926 (7th Cir. 1994), and the district judge did not
abuse his discretion.
The judge concluded that Lange’s knowledge as a drafter
(he has an associate’s degree in graphic design) and his
ability to manipulate drawings in AutoCAD were spe-
cial skills that facilitated the offense. The former enabled
Lange to select and lay his hands on commercially valu-
able data; the latter helped facilitate its sale and conceal-
ment. When negotiating for the sale, Lange used AutoCAD
to remove all of RAPCO’s identifying marks and replace
them with the logos and other details of the potential
customer, so that the buyer could submit the drawings
to the FAA as its own. That manipulation would have
made the package more attractive to any buyer and thus
facilitated the offense.
† This opinion, the circuit’s first encounter with the Economic
Espionage Act of 1996, was circulated before release to all active
judges under Circuit Rule 40(e). Circuit Judge Ripple favored a
hearing en banc.
12 No. 00-1681
Lange relies on Application Note 3 to §3B1.3:
“Special skill” refers to a skill not possessed by
members of the general public and usually requir-
ing substantial education, training or licensing.
Examples would include pilots, lawyers, doctors,
accountants, chemists, and demolition experts.
Sure he had training, Lange concedes, but not as exten-
sive as a chemist’s. That cannot be denied; an associate’s
degree (and knowledge of even so complex a software
package as AutoCAD) can be obtained in less time than
a college degree. But the district court did not commit a
clear error in finding that Lange had skills “not possessed
by members of the general public” (this time “public” does
mean “general public”!). United States v. Lewis, 41 F.3d
1209 (7th Cir. 1994), makes the point. Lewis holds that
an enhancement under §3B1.3 may be proper for someone
whose special skill is ability to drive an 18-wheel truck,
making off with the load with which he had been en-
trusted. Drafting skills, including the use of AutoCAD, are
“not possessed by members of the general public”, require
time to master, and played a central role in the offense. A
mechanical drafter is in the same category as a pilot
or demolition expert—for those skills, too, may be learned
outside the academy. The enhancement was proper.
As for acceptance of responsibility: this reduction usu-
ally rewards a guilty plea, but Lange went to trial. Even
on appeal Lange contends that he is not guilty and asks
us to reverse his conviction. That does not qualify as
acceptance of responsibility. Nor does it fall within the
special case, see §3E1.1 Application Note 2, of pleading
not guilty only to obtain a ruling on a contested legal
issue. Lange argued (and still argues) factual as well as
legal innocence. His legal points could have been preserved
with a conditional guilty plea on stipulated facts, but in-
stead Lange chose to put the prosecution to its proof.
No. 00-1681 13
What is more, he hardly fits the profile of one who has
learned his lesson. Lange consulted an attorney be-
fore offering RAPCO’s data for sale. Counsel told him that
he absolutely should not sell the data; armed with that
knowledge, Lange went ahead and tried to complete the
sale. After being caught, Lange committed new offenses. He
was directed by a grand jury subpoena (and required by
the civil law) to return the stolen data. He feigned com-
pliance while retaining an electronic copy. Then he tried
to persuade a friend who knew the truth to lie to the
grand jury. Only when this effort was revealed (the friend
turned a damning voice mail message over to the FBI) did
Lange finally clean his hard drive of RAPCO’s intellectual
property. For this escapade Lange received a two-level
enhancement for obstructing justice. U.S.S.G. §3C1.1. An
obstruction-of-justice enhancement generally, and here,
is incompatible with an acceptance-of-responsibility re-
duction. U.S.S.G. §3E1.1 Application Note 4.
AFFIRMED
RIPPLE, Circuit Judge, concurring. I concur in the
judgment of the court. I write separately because the
panel majority’s opinion deals with several matters that
are not necessarily raised by this case, and, in my view, it
is imprudent to confront these issues prematurely.
The panel majority notes that the Economic Espionage
Act, in defining “trade secret,” includes as an ingredient
that
the information derives independent economic value,
actual or potential, from not being generally known
14 No. 00-1681
to, and not being readily ascertainable through prop-
er means by, the public[.]
18 U.S.C. § 1839(3)(B). This portion of the definition of a
trade secret differs markedly from the definition found
in the Uniform Trade Secrets Act. The analogous language,
found at section 1(4) of the Uniform Act, provides that
the information must
derive[] independent economic value, actual or poten-
tial, from not being generally known to, and not be-
ing readily ascertainable by proper means by, other
persons who can obtain economic value from its dis-
closure or use[.]
Unif. Trade Secrets Act, § 1(4) (amended 1985), 14 U.L.A.
438 (1979).
The panel majority declares that this textual difference
is of no significance because the phrase “the public” in the
federal statute is simply shorthand for the longer phrase
of the Uniform Act. Therefore, the panel majority con-
cludes, “the public” ought to be read “the economically
relevant public.” (Slip Op. at 7). Because Mr. Lange offered
information that was unknown to both competitors and
to the general public, there is no reason to confront this
issue in this case, and, because the correctness of the
panel majority’s reading of the evidence is not self-evident,
we ought not to reject out-of-hand the position of the
United States when there is no necessity to do so.
The panel majority bases its reading of the federal stat-
ute on its conclusion that “[s]ection 1839(3) was derived
from the definition of a trade secret in the Uniform Trade
Secrets Act.” (Slip Op. at 6). An examination of the House
Report accompanying the statute describes, however, a
somewhat more nuanced relationship between the two
definitions. Notably, the Report states that the definition
of “trade secret” in the federal statute is “based largely”
on the definition of that term in the Uniform Trade Se-
No. 00-1681 15
crets Act. H.R. Rep. No. 104-788, at 12 (1996). The report
goes on to say in the paragraphs immediately following
that “information which is generally known to the public,
or which the public can readily ascertain through proper
means, does not satisfy the definition of trade secret un-
der this section.” Id. at 13.
Our normal approach to statutory interpretation is to
assume that Congress intended what it wrote. Here, the
words of the statute are clear on their face. Moreover,
the pertinent legislative history supports reliance on the
plain wording. Cf. Griffin v. Oceanic Contractors, Inc., 458
U.S. 564, 574 (1982) (“Resort to the legislative history,
therefore, merely confirms that Congress intended the
statute to mean exactly what its plain language says.”).
Congress used the Uniform Act’s definition of “trade se-
cret” as a guide, but it did not adopt it. Instead, Congress
made its own choices as to those aspects of the Uniform
Act’s definition that ought to be adopted and those that
needed alteration before incorporation into the federal
statute. I see no reason to reject so swiftly and gratuitously
the plain wording of the statute, the supportive legisla-
tive history,1 the interpretation of the Court of Appeals
for the Third Circuit in United States v. Hsu, 155 F.3d 189,
196-97 (3d Cir. 1998), and the interpretation of the Ex-
ecutive Branch set forth in the Government’s brief.
I would also defer announcing any limitations on the law
of attempt as it applies to the Economic Espionage Act
in advance of the necessity of doing so. The considered
judgment of another circuit to the contrary particularly
1
I note that legislative history is employed here merely to con-
firm the plain wording of the statutory language in the face of a
reading that can find no justification in the plain wording, the
legislative history or any other recognized tool of statutory con-
struction.
16 No. 00-1681
counsels restraint in this respect. See Hsu, 155 F.3d at 198-
203. In this case, there is no question that the informa-
tion Mr. Lange offered for sale was a trade secret. We
therefore need not decide whether a defendant can be
found guilty of an attempt when no such secret exists.
For these reasons, I concur in the judgment, but must
respectfully decline from joining the panel discussion of
matters not necessary for decision today, especially when
the correctness of those pronouncements is questionable.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—11-26-02