Appellate Case: 23-3013 Document: 010111078133 Date Filed: 07/11/2024 Page: 1
`FILED
`United States Court of Appeals
`Tenth Circuit
`
`July 11, 2024
`
`Christopher M. Wolpert
`Clerk of Court
`
`PUBLISH
`
`UNITED STATES COURT OF APPEALS
`
`FOR THE TENTH CIRCUIT
`_________________________________
`
`UNITED STATES OF AMERICA,
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` Plaintiff - Appellee,
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`v.
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`FENG TAO,
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` Defendant - Appellant.
`_________________________________
`
`
`
`
`
`No. 23-3013
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`Appeal from the United States District Court
`for the District of Kansas
`(D.C. No. 2:19-CR-20052-JAR-1)
`_________________________________
`
`Michael F. Dearington (Peter R. Zeidenberg with him on the briefs) of ArentFox Schiff
`LLP, Washington, D.C., for Defendant-Appellant.
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`Joseph P. Minta, Attorney, Appellate Unit, National Security Division, U.S. Department
`of Justice, Washington, D.C. (Kate E. Brubacher, United States Attorney for the District
`of Kansas; Matthew G. Olsen, Assistant Attorney General for National Security, with
`him on the brief), for Plaintiff-Appellee.
`_________________________________
`
`Before TYMKOVICH, BRISCOE, and MORITZ, Circuit Judges.
`_________________________________
`
`MORITZ, Circuit Judge.
`_________________________________
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`From 2014 until his arrest in 2019, Feng “Franklin” Tao was a tenured
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`professor at the University of Kansas (KU). During his employment, Tao conducted
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`research funded by two federal agencies—the U.S. Department of Energy (DOE) and
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`the National Science Foundation (NSF). At the same time, he developed a
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`relationship with a university in China and concealed it from KU. As a result, Tao
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`found himself facing ten federal charges and now stands convicted by a jury of one
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`crime: making a materially false statement in a matter within the jurisdiction of the
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`executive branch, in violation of 18 U.S.C. § 1001(a)(2). Because we agree with Tao
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`that the government offered insufficient evidence for a rational jury to find that his
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`statement to his employer was material to any DOE or NSF decision, we reverse
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`Tao’s conviction and remand for the district court to enter a judgment of acquittal.
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`Background
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`This case began as an espionage investigation. A visiting scholar at KU was
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`angry with Tao over an authorship dispute and threatened to report him as a “tech
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`spy” to the FBI if he refused to pay her $300,000, noting that this kind of espionage
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`“was a popular topic these days with the FBI.” App. vol. 11, 2336. When Tao ignored
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`her demand, the scholar made good on her threat—she submitted an anonymous tip to
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`the FBI accusing Tao of economic espionage and later impersonated others to make
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`additional espionage allegations. As a result, the FBI launched an espionage
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`investigation.
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`In the end, the FBI found no evidence of espionage. But the FBI learned that
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`Tao had potentially accepted a second full-time professorship at Fuzhou University in
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`China and hid it from KU. For this conduct, the government charged Tao with three
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`counts of making false statements, in violation of 18 U.S.C. § 1001(a)(2), and seven
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`counts of wire fraud, in violation of 18 U.S.C. § 1343. The false-statement counts
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`alleged that Tao concealed his relationship with Fuzhou University in certain
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`documents, including, as relevant to this appeal, an annual institutional-
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`responsibilities form that he submitted to KU in September 2018. The wire-fraud
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`counts alleged that by failing to disclose his relationship with Fuzhou University, Tao
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`defrauded KU of his salary and the DOE and the NSF of federal grant funds. Before
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`trial, Tao twice moved to dismiss the indictment. The district court denied both
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`motions, and the government then voluntarily dismissed one false-statement count
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`and one wire-fraud count.
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`In March 2022, Tao proceeded to trial on the remaining eight counts. The
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`government’s case-in-chief spanned almost two weeks, involved over 30 witnesses,
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`and included nearly 400 exhibits. The evidence at trial showed that Tao was a tenured
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`associate professor in KU’s departments of chemistry and chemical and petroleum
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`engineering. When he joined the KU faculty in 2014, Tao brought with him a
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`research grant from the NSF. A few years later, in October 2017, KU submitted a
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`grant proposal to the NSF seeking funding to support another of Tao’s research
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`projects. And in December 2017, KU submitted a renewal proposal to the DOE
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`requesting funding for Tao to continue a DOE-funded research project beyond the
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`initially approved period.1 Both agencies awarded the funds the next year.
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`Throughout his time at KU, Tao focused his research on catalysis, which concerns
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`1 A witness from the DOE testified that this renewal proposal sought the
`“continuation of a prior grant,” but it is unclear from the trial record when the DOE
`received and funded the original grant proposal. App. vol. 5, 1145.
`3
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`changes in the rates of chemical reactions, and published prolifically in respected
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`scientific journals.
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`As a KU employee, Tao’s responsibilities included following all university
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`policies, including the Commitment of Time, Conflicts of Interest, Consulting, and
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`Other Employment Policy—a policy developed “to conform to [f]ederal regulations
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`governing research.”2 App. vol. 12, 2686. This conflict policy requires, among other
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`things, that faculty members annually submit an institutional-responsibilities form,
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`which in turn instructs faculty members to report their “significant financial
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`interests” and “time commitments in external professional activities.” Id. at 2728
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`(capitalization standardized). The form also requires faculty members to “report any
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`changes . . . as soon as they become known . . . and no later than 30 days after
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`acquiring a new significant financial interest.” Id. at 2732. According to KU’s
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`assistant vice chancellor for research, institutional-responsibilities forms are “internal
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`documents at KU” and are never “sent off to agencies,” but KU uses the information
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`disclosed on them when helping researchers prepare grant proposals. App. vol. 4,
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`793.
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`2 As the government points out on appeal, 2 C.F.R. § 200.112 requires “[t]he
`[f]ederal awarding agency [to] establish conflict[-]of[-]interest policies for [f]ederal
`awards” and the grantee organization to “disclose in writing any potential conflict of
`interest to the [f]ederal awarding agency . . . in accordance with applicable
`[f]ederal[-]awarding[-]agency policy.” Although the government did not introduce
`this regulation at trial, the evidence showed that the NSF had established a policy on
`conflicts of interest in its Proposal and Award Policies and Procedures Guide
`(PAPPG). But there was no evidence that the DOE had any such policy.
`4
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`In July 2017, Tao applied to become a Changjiang Distinguished Professor at
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`Fuzhou University under the Changjiang Scholar program, a prestigious Chinese
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`talent-recruitment program sponsored by China’s Ministry of Education. By January
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`2018, the Ministry of Education had named Tao a Changjiang Scholar. Fuzhou
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`University then sent Tao a draft employment contract for a five-year, full-time
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`appointment as a Changjiang Distinguished Professor at the university.
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`But given his full-time appointment at KU, the prospect of working full-time
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`at Fuzhou University presented a problem for Tao. Seeking a solution, Tao called a
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`colleague at another university and asked if it would be “feasible” to shift to a part-
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`time appointment at KU so that he could accept the Fuzhou University position. App.
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`vol. 15, 3331. The colleague suggested that Tao discuss the issue with KU, and Tao
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`acknowledged that if he didn’t “say anything, then . . . it would definitely be
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`problematic if this thing were ever looked into.” Id. at 3332. Tao also turned to a KU
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`colleague for advice, but he framed his dilemma as involving a potential position at a
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`German university and asked if “there [was] such a thing as . . . a half-half
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`appointment” that would allow him to work at both universities. Id. at 3353. The
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`colleague suggested that Tao obtain a course buyout from KU, which would provide
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`a semester’s release from his KU teaching responsibilities and free him to travel and
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`work abroad. But if Tao wanted “to do half-and-half,” the colleague cautioned, he
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`should discuss the issue with his department chair. Id. at 3356.
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`Despite this advice, Tao continued considering the offer and did not disclose it
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`to KU. Over the next few months, Tao and Fuzhou University exchanged draft
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`employment contracts and related documents. In early May, Tao took a three-day trip
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`to China. The day before his flight, Fuzhou University sent Tao another draft
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`contract, which provided that in exchange for five years of full-time teaching and
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`research, Fuzhou University would pay Tao an annual salary, supply laboratory
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`space, allocate funds for scientific equipment, and provide him a residence on
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`campus. That same month, Tao received a certificate from the Chinese Ministry of
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`Education certifying his appointment as a Changjiang Distinguished Professor at
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`Fuzhou University. But the government introduced no direct evidence that Fuzhou
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`University and Tao ever finalized an employment contract.
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`Throughout the spring and into the summer of 2018, Tao tried to set up a
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`research team and laboratory at Fuzhou University. For example, he recruited
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`graduate and postdoctoral students to join his team; helped a postdoctoral researcher
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`on his KU research team receive a job offer from Fuzhou University; and directed
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`this researcher to obtain price quotes from various vendors for laboratory equipment.
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`Tao also prepared grant applications seeking research funding in China.
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`In June 2018, Tao obtained a course buyout at KU for the 2019 spring
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`semester, purportedly to focus on research. And in September 2018, Tao submitted
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`his annual institutional-responsibilities form for 2019—the form at the heart of this
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`appeal. He left the disclosures section blank, making no mention of Fuzhou
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`University:
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`App. vol. 12, 2730. By submitting the form to KU, Tao certified that his “report of
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`significant financial interests and time commitments . . . [was] a true, correct, and
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`complete statement” and that he had complied with KU’s conflict policy. Id. at 2732.
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`Tao then flew to China in December 2018 and spent most of his time there until his
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`arrest in August 2019. Upon his arrest, KU placed Tao on administrative leave, and
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`the NSF and the DOE suspended the research grants.
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`At the close of the government’s case, Tao moved for a judgment of acquittal,
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`which he renewed after he presented his own case. See Fed. R. Crim. P. 29(a). The
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`district court reserved ruling on both motions and submitted the case to the jury.
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`After deliberating for nearly two days, the jury returned a split verdict, finding Tao
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`guilty on three wire-fraud counts and one false-statement count but not guilty on the
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`other four counts. Tao then again renewed his motion for acquittal, which the district
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`court granted in part and denied in part. The district court acquitted Tao on the three
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`wire-fraud counts, holding that the government failed to prove Tao engaged in a
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`fraudulent scheme to deprive KU, the NSF, or the DOE of money or property. But it
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`concluded that the government introduced enough evidence to support the one false-
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`statement conviction based on the institutional-responsibilities form he submitted to
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`KU in September 2018.3
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`So although the government charged Tao with ten counts, it dismissed two
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`before trial, the jury convicted on four and acquitted on four at trial, and the district
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`court then acquitted on three posttrial—leaving only a single false-statement jury
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`conviction standing. For that conviction, the district court sentenced Tao to time
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`served and two years of supervised release. Tao now appeals his conviction on the
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`3 The district court also denied Tao’s alternative request for a new trial.
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`single false-statement count.4
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`Analysis
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`Tao argues that the evidence was insufficient to support his false-statement
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`conviction under § 1001(a)(2). We review sufficiency challenges de novo, looking at
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`“the evidence in the light most favorable to the government to determine whether a
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`rational trier of fact could have found the elements of the offense beyond a
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`reasonable doubt.” United States v. Johnson, 821 F.3d 1194, 1201 (10th Cir. 2016).
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`In other words, “[t]he only question is ‘whether the government’s evidence, credited
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`as true, suffices to establish the elements of the crime.’” Id. (quoting United States v.
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`Hutchinson, 573 F.3d 1011, 1033 (10th Cir. 2009)).
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`Section 1001(a)(2) is a broad statute that makes it a crime to lie “in any matter
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`within the jurisdiction of the executive . . . branch of the [federal g]overnment.” To
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`convict Tao under this statute, the government needed to prove that “(1) [he] made a
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`statement; (2) the statement was false, fictitious, or fraudulent[,] as [he] knew; (3) the
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`statement was made knowingly and willfully; (4) the statement was [made in a
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`matter] within the jurisdiction of [a] federal agency; and (5) the statement was
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`material.” United States v. Williams, 934 F.3d 1122, 1128 (10th Cir. 2019) (quoting
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`United States v. Harrod, 981 F.2d 1171, 1175 (10th Cir. 1992)). Tao challenges all
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`but the third of these elements. For our purposes, we will assume that Tao made a
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`4 The government initially appealed the district court’s order acquitting Tao on
`the three wire-fraud counts, but it later voluntarily dismissed its appeal. See United
`States v. Tao, No. 22-3203 (10th Cir. Nov. 28, 2022) (order granting motion to
`dismiss appeal).
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`false statement in a matter within the jurisdiction of the executive branch when he
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`certified on his 2019 institutional-responsibilities form that his “report of significant
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`financial interests and time commitments . . . [was] a true, correct, and complete
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`statement” and that he had complied with KU’s conflict policy—despite failing to
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`disclose his relationship with Fuzhou University. App. vol. 12, 2732. Accordingly,
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`we confine our discussion to the last element: materiality.
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`A false statement is material if it has “a natural tendency to influence, or [is]
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`capable of influencing, the decision of the decision[-]making body to which it was
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`addressed.” United States v. Gaudin, 515 U.S. 506, 509 (1995) (quoting Kungys v.
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`United States, 485 U.S. 759, 770 (1988)). Materiality is a mixed question of law and
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`fact for the jury to resolve. Id. at 511–12, 522. In determining whether the
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`government introduced sufficient evidence to support the jury’s materiality finding,
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`we first ask a subsidiary question: “what decision was the agency trying to make?”
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`Id. at 512. We then consider whether the false statement was “capable of influencing”
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`that particular decision. Williams, 934 F.3d at 1128 (quoting United States v. Christy,
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`916 F.3d 814, 854 (10th Cir. 2019)). This materiality test is objective, so the
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`individual decision-maker need not actually rely on the statement, or even consider it
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`at all, in making the decision. Id. at 1129. Indeed, a statement can be material even if
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`that decision-maker internally “arrived at [their] conclusion before the statement
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`[wa]s made.” Id. at 1130. But under the objective materiality test, there must still be
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`an actual decision at issue before the agency—a decision that the statement, once
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`made, has “the capability to . . . influence.” United States v. Irvin, 682 F.3d 1254,
`10
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`1268 (10th Cir. 2012); see also, e.g., Williams, 934 F.3d at 1125–26, 1130 (holding
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`that because materiality standard is objective, veteran’s false testimony at informal
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`hearing about overseas service was material to benefits decision made nearly one
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`year after that hearing, even though decision-maker subjectively determined before
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`such hearing that veteran’s testimony would not change her view that he had not
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`served overseas).
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`Here, Tao correctly points out that neither the government nor the district
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`court ever identified any decision that either the DOE or the NSF was “trying to
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`make.” Gaudin, 515 U.S. at 512. Nevertheless, attempting to meet its burden on
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`appeal, the government now contends that the “agencies were considering whether to
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`fund or to continue funding Tao’s research” and that Tao’s false statement could have
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`influenced these funding decisions. Aplee. Br. 46. Alternatively, the government falls
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`back on the district court’s analysis, which reasoned that Tao’s false statement was
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`material to the NSF because the agency relies on KU to identify and manage conflicts
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`of interest. But as we explain below, the evidence supports neither materiality theory.
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`I.
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`Funding Decisions
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`We first consider whether Tao’s false statement was material to the only
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`agency decisions the government identifies on appeal: “whether to fund or to
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`continue funding Tao’s research.” Id. In support of this materiality theory, the
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`government points to testimony showing that the agencies require disclosure of all
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`current and pending research support on a grant proposal—they need this information
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`to assess the researcher’s capacity to carry out the proposed research and any
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`potential overlap or duplication with the proposed project.5 Based on this testimony,
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`the government argues that KU would have disclosed information it obtained from
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`Tao about any current or pending support he had from Fuzhou University when
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`applying for research funding because KU “uses the [i]nstitutional[-r]esponsibilities
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`form in assisting researchers applying for federal grants.” Id. And this information,
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`the government contends, could have then influenced the decisions to fund the NSF
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`grant proposal and the DOE renewal proposal.
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`But the government’s argument critically overlooks that both agencies
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`received and funded the proposals before Tao submitted his institutional-
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`responsibilities form to KU in September 2018. And KU never applied for additional
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`funding after he did so. As the district court observed, “[t]he last proposal KU . . .
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`submitted to a federal agency to support Tao’s research was in 2017—before Tao had
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`[even] been selected as a Changjiang Scholar.” App. vol. 1, 195. In other words,
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`5 The government’s appellate brief does not explain what it means when it
`contends that the agencies were deciding “whether to fund or to continue funding
`Tao’s research.” Aplee. Br. 46. But the testimony the government relies on makes
`clear that it is referring to (1) the NSF’s decision to fund the October 2017 grant
`proposal, which sought a new grant, and (2) the DOE’s decision to fund the
`December 2017 renewal proposal, which sought the “continuation of a prior grant.”
`App. vol. 5, 1145; see also id. at 960, 1135–36 (NSF representative testifying that if
`researcher participated in foreign talent-recruitment program promising research
`funds, such information would “need[] to be reported” in “the proposal” or in “an
`update prior to award,” and that NSF would find it “concerning” if it “receive[d]
`applications” that failed to disclose funding sources or appointments (emphases
`added)); App. vol. 6, 1187–88 (DOE program manager testifying that “in reviewing
`. . . Tao’s renewal proposal,” she would have wanted to know about any current and
`pending support, including whether he “was receiving research support from a
`foreign university” (emphasis added)).
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`neither the DOE nor the NSF had any proposals pending before them when Tao made
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`his statement or at any point since then. So contrary to the government’s argument,
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`KU could not have “forward[ed] the information” to the agencies when it helped Tao
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`apply for research funds. Aplee. Br. 48; see also United States v. Meuli, 8 F.3d 1481,
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`1485 (10th Cir. 1993) (holding that false statements were material to IRS even
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`though made to third parties where it was “not only reasonably foreseeable, but
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`inevitable, that the recipient[s] would contact the IRS concerning the[] false
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`statements”). But even if the statement could somehow have reached the agencies,
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`there were no proposals pending before the agencies and therefore no funding
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`decisions for them to make. And without evidence of an actual decision capable of
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`being influenced by the statement, the government cannot establish materiality.6 See
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`Gaudin, 515 U.S. at 512.
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`The dissent, however, would disregard that Tao’s statement was incapable of
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`influencing an actual funding decision. In the dissent’s view, it is enough that the
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`statement is the type of information the agencies would “want to know when
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`deciding whether to award research grants,” even if there was no such decision for
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`either agency to make at the time. Dissent 23. To support its proposed materiality
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`test, the dissent invokes language from United States v. McBane, 433 F.3d 344 (3d
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`Cir. 2005), that we have favorably cited. See Williams, 934 F.3d at 1130 n.9. In
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`6 Contrary to the dissent’s understanding, our analysis does not rest on the fact
`that Tao’s statement was never “seen, considered, or relied on by the agencies.”
`Dissent 22. Tao’s statement was not material because it was incapable of influencing
`an actual funding decision.
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`McBane, the Third Circuit said that a false statement need only be “of a type capable
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`of influencing a reasonable decision[-]maker” because “the phrase ‘natural tendency’
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`connotes qualities of the statement in question that transcend the immediate
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`circumstances in which it is offered and inhere in the statement itself.” 433 F.3d at
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`351. But as we explained in Williams, this simply means the test for materiality is an
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`objective one that does not turn on the subjective views of the decision-maker—not
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`that there need not be an actual decision reasonably capable of being influenced by
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`the statement.7 See 934 F.3d at 1130. As the Third Circuit itself recently explained,
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`materiality requires not only that the false statement be “‘of a type capable of
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`7 Resisting this conclusion, the dissent seizes on the next sentence in Williams,
`which explains that a false statement can “be material even if the decision[-]maker
`had already arrived at her conclusion before the statement is made.” 934 F.3d at
`1130. Yet this single sentence makes only the unremarkable observation that because
`the materiality standard is objective, whether the decision-maker had subjectively
`made up their mind before the defendant made the statement is irrelevant. See id. It
`does not change the requirement that the statement, once made, must have the
`objective capability to influence an actual decision to be made by the agency. See id.
`at 1128 (explaining that false statement must have been “capable of influencing” a
`decision “the decision[-]maker [was] considering” (quoting Christy, 916 F.3d at 853–
`54)); Gaudin, 515 U.S. at 512 (same). Indeed, Williams itself illustrates this
`requirement. There, a veteran falsely testified at an informal hearing that he had
`served in combat overseas to obtain undeserved benefits. Williams, 934 F.3d at 1124–
`26. Before the hearing, the review officer had subjectively concluded that even if the
`veteran testified about having served overseas, such testimony would not convince
`her of that service. Id. at 1130. But setting aside that subjective view, we held, the
`false statement was material because it was objectively capable of influencing the
`agency’s subsequent benefits decision, which was not issued until nearly a year after
`the hearing: the veteran “falsely testified about combat service in Iraq to persuade the
`[r]eview [o]fficer of that service” and placed “the issue squarely before the [r]eview
`[o]fficer to decide.” Id. at 1129. Thus, unlike in this case, there was an actual
`decision in Williams that the statement had the capability to influence. See id. at
`1129–30.
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`influencing a reasonable decision[-]maker,’” but also that the “statement[] could
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`have bearing on an actual decision entrusted to the decision[-]maker.” United States
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`v. Johnson, 19 F.4th 248, 257 (3d Cir. 2021) (second emphasis added) (quoting
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`United States v. Moyer, 674 F.3d 192, 215 (3d Cir. 2012)). Or as the Second Circuit
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`has put it, to prove materiality, the government must present “evidence of an actual
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`decision of the [agency] that was reasonably capable of being influenced by” the
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`statement. United States v. Litvak, 808 F.3d 160, 172 (2d Cir. 2015). And “[t]o form
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`the basis of a jury’s conclusion, evidence of such a decision cannot be purely
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`theoretical and evidence of such a capability to influence must exceed mere
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`metaphysical possibility.” Id. at 172–73.
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`Our own decision in United States v. Camick, 796 F.3d 1206 (10th Cir. 2015),
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`drives this point home. There, the defendant posed as his deceased brother and filed a
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`provisional patent application with the U.S. Patent and Trademark Office (PTO). Id.
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`at 1210–11. Based on this conduct, the government obtained multiple jury
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`convictions against him, including one for making a false statement under § 1001. Id.
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`at 1212–13. We reversed, agreeing that the government failed to establish materiality
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`because the defendant filed only a provisional patent application, which the PTO
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`does not review for patentability. Id. at 1218–19. And although the statements in a
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`provisional application can become material to the PTO if the applicant converts or
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`incorporates it into a nonprovisional application, the defendant never did so. Id.
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`Because there was no actual decision to influence, the statements were not material.
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`Id. So too here: there were no proposals pending before the DOE or the NSF and thus
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`no funding decisions that Tao’s statement could have influenced, rendering the
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`statement immaterial.8
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`II. Conflict Management
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`The government’s reliance on the district court’s materiality analysis fares no
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`better. According to the district court, Tao’s false statement was material to the NSF
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`because it “prevented KU from fulfilling its responsibility” under the PAPPG’s
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`conflict policy to determine whether Tao’s relationship with Fuzhou University
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`8 Perhaps recognizing as much, the dissent additionally suggests that Tao’s
`false statement was capable of influencing an agency decision even after the DOE
`and the NSF awarded the grants. Despite scouring the voluminous record on the
`government’s behalf, however, the dissent has identified no evidence showing that
`either agency required KU to report Tao’s relationship with Fuzhou University
`during the grant periods, much less that such information could have then influenced
`an agency decision. See United States v. Lewis, 594 F.3d 1270, 1275 (10th Cir. 2010)
`(“[I]t is not this court’s duty to scour without guidance a voluminous record for
`evidence supporting the government’s [case].”). At best, the dissent invokes KU’s
`requirement that Tao “report any changes” to his institutional-responsibilities form
`“as soon as they become known”—an ongoing reporting requirement that is internal
`to the university. Dissent 24 (quoting App. vol. 12, 2732). The dissent also
`emphasizes that an NSF representative and a DOE program manager testified the
`agencies require reporting of all current and pending research support so they can
`assess capacity, but both witnesses were describing reporting requirements that apply
`exclusively at the proposal stage. The only agency requirement the dissent points to
`that applies during the grant periods is the NSF’s requirement that KU obtain
`approval before changing the “‘objectives or scope of the project,’” including when
`“the university needs to change the principal investigator.” Id. at 25 (quoting App.
`vol. 5, 996). But the trial record contains no evidence that KU, had it known about
`Tao’s activities at Fuzhou University, would have sought NSF approval to replace
`him with a new principal investigator. Simply put, the evidence the dissent relies on
`doesn’t support its speculative view that Tao’s false statement could have influenced
`some unidentified agency decision during the grant periods. See Christy, 916 F.3d at
`843 (“A jury will not be allowed to engage in a degree of speculation and conjecture
`that renders its finding a guess or mere possibility.” (quoting United States v. Rufai,
`732 F.3d 1175, 1188 (10th Cir. 2013))).
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`presented a conflict of interest and, if so, whether KU needed to manage the conflict.
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`App. vol. 1, 233. But this rationale fails to identify any agency decision that Tao’s
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`false statement could have influenced, and the government makes no effort to bridge
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`that gap on appeal. The government’s failure to establish that the statement was
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`“capable of influencing” any “decision of the decision[-]making body to which it was
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`addressed”—conflicts-related or otherwise—is fatal to the materiality element.
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`Gaudin, 515 U.S. at 509 (quoting Kungys, 485 U.S. at 770).
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`But even if, for argument’s sake, we were to assume that KU’s conflict-
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`management responsibilities under the PAPPG’s conflict policy involved an NSF
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`decision, no reasonable jury could find that Tao’s false statement could have
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`influenced it. To be sure, the PAPPG provides that before “the expenditure of the
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`award funds,” the grantee organization must identify and then manage, reduce, or
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`eliminate “all conflicts of interest for each award” (or report to the NSF any conflicts
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`that “it is unable to satisfactorily manage”). App. vol. 14, 3072–73. But critically, the
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`PAPPG does not apply to any and all potential conflicts. Rather, it requires
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`researchers to disclose, and the organization to then review for conflicts of interest,
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`only financial interests exceeding $10,000 that: (1) “reasonably appear to be affected
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`by the research or educational activities funded . . . by [the] NSF” or (2) are “in
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`entities whose financial interests would reasonably appear to be affected by such
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`activities.”9 Id. at 3072. And a conflict of interest exists only if the organization
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`determines that the financial interest “could directly and significantly affect the
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`design, conduct, or reporting of NSF-funded research.” Id. at 3073. Yet at trial, the
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`government neither argued nor presented evidence that Tao’s relationship with
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`Fuzhou University created a disclosable financial interest under the PAPPG. Even on
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`appeal, as Tao points out, the government does not argue as much. And without such
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`evidence, no reasonable jury could find that the PAPPG’s conflict policy required
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`KU to review the relationship and determine whether it presented a conflict of
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`interest.
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`Perhaps sensing this stumbling block, the government asserts wi