Factors in Trade Secret Cases
Arguing § 3553 factors in trade secret cases
In light of the current discretion resting with the district court, application of the § 3553
Arguing § 3553 factors in trade secret cases
In light of the current discretion resting with the district court, application of the § 3553
(a) factors has taken on greater importance in the sentencing for trade secret and economic espionage cases. See generally Gall v. United States, 552 U.S. 38 (2007) (expanding sentencing discretion of district courts). The theft of trade secrets is not prosecuted with the regularity of many other white collar crimes and the court may benefit from information regarding the damaging effects of trade secret theft under the § 3553 factors in fashioning an appropriate sentence.
The nature and circumstances of the offense may strongly demonstrate the need for a particular sentence, depending on the manner of misappropriation or use of the trade secret under § 3553(a)(1). The court may also wish to consider the specific steps taken by the defendant to injure the owner of the trade secret. The defendant may have sold the trade secret to a direct competitor or formed a new company to compete with the trade secret owner.
The offense may directly implicate the primary objectives of the Economic Espionage Act to promote national and economic security. See, e.g., H. REP. NO. 788, 104th Cong., 2d Sess. 4 (1996). (“[T]he nation’s economic interests are a part of its national security interests. Thus, threats to the nation’s economic interest are threats to the nation’s vital security interests.”) For example, the trade secret may involve unique technological or military applications.
Given the facts of the case, a particular sentence may be necessary to reflect the seriousness of the defendant’s conduct, promote respect for the law, and provide just punishment for the offense under § 3553(b)(2). See, e.g., United States v. Williams, 526 F.3d 1312, 1323 (11th Cir. 2008) (per curiam)
(Applying the § 3553 factors: "In describing why it found the offense to be so serious, the court discussed the harm that Coca–Cola could have suffered if Williams and her co-conspirators had succeeded in selling its trade secrets to a rival, and the danger to the United States economy these crimes pose.")
Under § 3553(a)(1), the personal history and characteristics of the defendant may reveal the motivations for engaging in the trade secret offense (such as for profit or to injure the owner of the trade secret), as well as disregard for conforming his conduct to the law, rules, commitments, and obligations expected of him, which further warrants imprisonment for a significant period of time. For example, it may be significant that in committing the misappropriation, an insider defendant may have breached non-disclosure and other confidentiality agreements and policies of the company.
Under § 3553(a)(2)(C), depending on the nature of the trade secret or the manner in which the offense was committed, it may be important to protect the public from individuals who commit economic espionage and trade secret theft. Similarly, despite the relatively small number of trade secret theft prosecutions annually, there is a substantial opportunity to deter others from committing similar offenses.
The deterrent effect of a substantial sentence for trade secret theft tends to carry far beyond the immediate area of the case as business journals and legal scholars disseminate the information to a broad audience. The House Report noted that one of the goals of the statute was to promote deterrence, stating that "these problems [under prior law] underscore the importance of developing a systematic approach to the problem of economic espionage. The Committee believes that such a scheme will serve as a powerful deterrent to this type of crime." H. REP. NO. 788, 104th Cong., 2d Sess. 7 (1996). The Computer Crime & Intellectual Property Section (CCIPS) maintains the Web site, www.cybercrime.gov, and posts press releases containing information about charges and convictions under the Economic Espionage Act and other intellectual property and computer crimes. In addition, CCIPS also maintains a separate intranet for prosecutors which includes sentencing memoranda and other information for many trade secret and economic espionage cases.
These examples illustrate the importance of applying the § 3553 sentencing factors to the facts of the specific trade secret or economic espionage case. This application will allow the court to impose an appropriate sentence based on the facts of the case.
The nature and circumstances of the offense may strongly demonstrate the need for a particular sentence, depending on the manner of misappropriation or use of the trade secret under § 3553(a)(1). The court may also wish to consider the specific steps taken by the defendant to injure the owner of the trade secret. The defendant may have sold the trade secret to a direct competitor or formed a new company to compete with the trade secret owner.
The offense may directly implicate the primary objectives of the Economic Espionage Act to promote national and economic security. See, e.g., H. REP. NO. 788, 104th Cong., 2d Sess. 4 (1996). (“[T]he nation’s economic interests are a part of its national security interests. Thus, threats to the nation’s economic interest are threats to the nation’s vital security interests.”) For example, the trade secret may involve unique technological or military applications.
Given the facts of the case, a particular sentence may be necessary to reflect the seriousness of the defendant’s conduct, promote respect for the law, and provide just punishment for the offense under § 3553(b)(2). See, e.g., United States v. Williams, 526 F.3d 1312, 1323 (11th Cir. 2008) (per curiam)
(Applying the § 3553 factors: "In describing why it found the offense to be so serious, the court discussed the harm that Coca–Cola could have suffered if Williams and her co-conspirators had succeeded in selling its trade secrets to a rival, and the danger to the United States economy these crimes pose.")
Under § 3553(a)(1), the personal history and characteristics of the defendant may reveal the motivations for engaging in the trade secret offense (such as for profit or to injure the owner of the trade secret), as well as disregard for conforming his conduct to the law, rules, commitments, and obligations expected of him, which further warrants imprisonment for a significant period of time. For example, it may be significant that in committing the misappropriation, an insider defendant may have breached non-disclosure and other confidentiality agreements and policies of the company.
Under § 3553(a)(2)(C), depending on the nature of the trade secret or the manner in which the offense was committed, it may be important to protect the public from individuals who commit economic espionage and trade secret theft. Similarly, despite the relatively small number of trade secret theft prosecutions annually, there is a substantial opportunity to deter others from committing similar offenses.
The deterrent effect of a substantial sentence for trade secret theft tends to carry far beyond the immediate area of the case as business journals and legal scholars disseminate the information to a broad audience. The House Report noted that one of the goals of the statute was to promote deterrence, stating that "these problems [under prior law] underscore the importance of developing a systematic approach to the problem of economic espionage. The Committee believes that such a scheme will serve as a powerful deterrent to this type of crime." H. REP. NO. 788, 104th Cong., 2d Sess. 7 (1996). The Computer Crime & Intellectual Property Section (CCIPS) maintains the Web site, www.cybercrime.gov, and posts press releases containing information about charges and convictions under the Economic Espionage Act and other intellectual property and computer crimes. In addition, CCIPS also maintains a separate intranet for prosecutors which includes sentencing memoranda and other information for many trade secret and economic espionage cases.
These examples illustrate the importance of applying the § 3553 sentencing factors to the facts of the specific trade secret or economic espionage case. This application will allow the court to impose an appropriate sentence based on the facts of the case.