dong han prosecution recommendation

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF IOWA

UNITED STATES OF AMERICA, ) ) CRIMINAL NO. 4:14-cr-00078 ) v. ) ) ) GOVERNMENTS SENTENCING DONG PYOU HAN, ) MEMORANDUM ) Defendant. ) ) ) The United States of America, by the undersigned Assistant United States Attorney,

hereby submits this Sentencing Memorandum, and states as follows:

TABLE OF CONTENTS

I. INTRODUCTION..............................................................................................................1 II. PROCEDURAL HISTORY ..............................................................................................2 III. FACTS ................................................................................................................................3 IV. LOSS AMOUNT AND RESTITUTION ..........................................................................4 V. SENTENCING RECOMMENDATION .........................................................................5 VI. CONCLUSION ..................................................................................................................8

I. INTRODUCTION

Dr. Han was a research scientist at Iowa State University (ISU) and worked in the

laboratory of Dr. Michael Cho. Dr. Cho led a team of scientists, including Dr. Han, in testing an

experimental AIDS vaccine on rabbits. Dr. Cho received funding for research relating to AIDS

vaccines via grants from the U.S. Department of Health and Human Services, National Institutes

of Health (NIH) from 2008 to 2015. During research conducted pursuant to an NIH grant, it

Case 4:14-cr-00078-JEG-CFB Document 59 Filed 06/29/15 Page 1 of 8

2

was discovered that Dr. Han faked experiment results by adding human antibodies to blood

draws from rabbits, and made it appear that Dr. Chos experimental AIDS vaccine was effective

when, in fact, it was not. Further, Dr. Han provided false data from the lab experiments that

made it appear Dr. Chos experimental AIDS vaccine was producing an immune response in

rabbits when, in fact, it was not. As a result, Dr. Han caused false information and statements to

be included in grant applications and progress reports submitted to the NIH.

II. PROCEDURAL HISTORY

On December 23, 2013, the Department of Health and Human Services, Office of

Research Integrity (ORI), publically announced that it had taken final action in a case involving

Dr. Han and the research misconduct summarized above. The ORI and Dr. Han entered into a

Voluntary Exclusion Agreement, and Dr. Han agreed to exclude himself from contracting or

subcontracting with any agency of the United States government and from eligibility or

involvement in nonprocurement programs for a period of three years. Shortly after ORIs release

of information, in January of 2014, the United States Attorneys Office for the Southern District

of Iowa began a criminal investigation into Dr. Hans actions.

A criminal complaint was filed against Dr. Han on June 4, 2014, and a four-count

indictment was filed on June 17, 2014, charging Dr. Han with False Statements to the NIH, in

violation of Title 18, United States Code, Section 1001(a)(2). Dr. Han pled guilty on February

25, 2015, to two counts of False Statements. The Court accepted Dr. Hans guilty plea and

adjudicated him guilty.


3

III. FACTS

The plea agreement contains the following recommendations to the District Court:

The loss amount involved more than $7,000,000, but less than $20,000,000;

The government and defendant agreed that a two-level abuse of trust

enhancement applies, pursuant to USSG 3B1.3;

The government and defendant agreed the defendants role was neither

aggravating nor mitigating;

The government agreed not to pursue the sophisticated means enhancement,

pursuant to USSG 2B1.1(b)(1);

The government agrees to recommend a three-level reduction for acceptance of

responsibility at sentencing.

The government intends to honor the recommendations in the plea agreement and

believes the parties have no disputed factual or legal issues to litigate at the sentencing hearing.

The government may call HHS-OIG Special Agent Blair Johnston as a witness to discuss the

lasting impact of Dr. Hans actions, but does not anticipate any additional witnesses or evidence

to be presented.

The government believes the Presentence Report accurately represents the offense

conduct, but wishes to add some additional facts for the Courts consideration when deciding the

appropriate sentencing in this case.

Dr. Chos review of the flawed experiment data led him to believe that the GP41

vaccine could neutralize, or control, viruses causing AIDS because the research data revealed

that the injected rabbits developed antibodies to HIV viruses. This research was viewed by many


4

in the scientific community to be a major breakthrough in HIV/AIDS research. NIH officials

were flabbergasted with the impressive results. Dr. Chos apparent success led him to focus

his work on a particular region of the HIV virus which responded to the GP41 vaccine. Dr. Cho

developed his vaccine further based on the results that he believed were showing success.

Once Dr. Cho became aware that someone in his lab had committed research

misconduct, he and the ISU Research Integrity Officer devised a sting operation to try and

determine who was responsible. In addition to Dr. Han, who was solely responsible for the

misconduct, three other laboratory researchers were considered suspects until they could be

eliminated from suspicion.

The falsified data that Dr. Han generated was presented on three occasions at

academic conferences. No publishing of the data had occurred as of the date the fraud of

discovered.

IV. LOSS AMOUNT AND RESTITUTION Dr. Han stipulated to a total loss amount between $7 million and $20 million dollars in

the plea agreement. For the Courts convenience, the government has compiled charts showing

the NIH grant award amounts to Dr. Cho (the principal investigator) that involved Dr. Hans

fraud. See Exhibits 1 and 2. From 2008 to 2015, the NIH awarded $13,008,420.001 to Dr. Chos

HIV vaccine research projects at both Case Western and Iowa State Universities. The

government contends this amount is the intended loss to the NIH caused by Dr. Hans

misrepresentations. Of that number, $651,663.87 was unspent and held in reserve by ISU, and 1 The Presentence Report failed to take into account the funds granted from NIH to Case Western University and two additional research grant projects at Iowa State University in determining the loss amount. As the Defendant stipulated to a loss amount between $7 million and $20 million in the plea agreement, the government does not believe this is a material issue.


5

$1,381,616.00 was withheld and not awarded by the NIH after Dr. Hans misconduct was

discovered. The actual loss to NIH is roughly $11.6 million.

Dr. Han has agreed that the Court order him to pay $7,216,890.12 in restitution to the

NIH. A chart breaking down the restitution amounts is attached at Exhibit 3.

Dr. Hans fraud caused the NIH to award grant money to Dr. Cho, which had the NIH

known of the false data contained in the applications and progress reports, would have never

been awarded. But, some of the research performed by the Iowa State team involved other

phases of research where Dr. Hans false data had little to no effect, causing a difference between

the intended loss to the NIH and what Dr. Han should be expected to pay in restitution. For that

reason, as detailed in Exhibit 3, the government has pinpointed specific instances and dates of

Dr. Hans misrepresentations as to the appearance of HIV antibodies in sera samples that are

directly linked to the NIH grant money awards and monetary distributions. The defendant agrees

with the data contained in Exhibit 3.

V. SENTENCING RECOMMENDATION

Dr. Hans conduct was egregious, long-running, and manipulated the grant funding

process and Dr. Chos laboratory. The government therefore urges the Court to impose a

sentence of imprisonment within the applicable guideline range. The government agrees with

the presentence reports account of the offense conduct, but wishes to highlight several aspects to

support the need for a term of imprisonment.

Nature and Circumstances of the Offense.

Dr. Hans conduct was not a one-time mistake; if that were the case, he would not be in

this position today. Dr. Cho started receiving funding from the NIH in 2008, and it is believed


6

that approximately a year into the funding, Dr. Han started faking research. The deception

continued until he was caught in 2013. While Dr. Han claims there was an accidental cross-

contamination that caused the initial favorable data, he perpetuated the flawed data and went to a

great deal of work to do so. Dr. Han not only manipulated the data he provided to his boss, Dr.

Cho, he also made sure that any sera samples sent to Duke University for confirmatory testing

would show favorable data as well. To accomplish this, Dr. Han spiked the rabbit sera samples

with human HIV antibodies to make it appear the vaccine was working. This vaccine caused

excitement for the scientific community and was seen as an AIDS research breakthrough. The

perceived success of the vaccine was presented to other scientists at three academic symposiums.

Because of Dr. Hans conduct, a lot of time, effort, and money were spent going down a research

path that was not the breakthrough that everyone had hoped.

Had Dr. Cho known the vaccine was not effective, he would have dedicated his research

elsewhere. The disappointment that Dr. Cho felt after discovering that his long-time colleague

was faking results is unimaginable. Dr. Cho and his laboratory staffs credibility has been

compromised as a result of Dr. Hans fraud. Dr. Chos continued research to find a cure for the

AIDS virus is dependent on grant funding and Dr. Hans conduct has made this difficult, as

evidenced by NIH not awarding roughly $1.38 million to Dr. Cho and Iowa State after Dr. Hans

misconduct was discovered. Not to mention that had the NIH known of the flawed data, it may

have dedicated funding to other, worthwhile research projects.

Accurate facts and data are essential in research, and the data must be unbiased and

truthful, or the entire system is compromised. Dr. Hans behavior has reflected poorly on the

integrity of the NIH grant process, Iowa State University, Dr. Cho, and others associated with


7

this research. To demonstrate the seriousness of this crime and the damage it has done to the

scientific community, a prison sentence is warranted.

History and Characteristics of the Defendant.

Although he has no criminal history, Dr. Hans conduct and characteristics weigh in

favor of a prison sentence. Dr. Han is an extremely educated individual who was a trusted

colleague of Dr. Cho. He knew what he was doing was wrong, yet he continued to commit the

crimes until he was found out by Dr. Cho he did not stop on his own accord. While this crime

allegedly started with a simple mistake, Dr. Han chose to, and went to considerable effort, to

manipulate scientific data for a significant period of time.

The Need for the Sentence to Reflect the Seriousness of the Offense, Promote Respect for The Law, and Provide Just Punishment for the Offense. In light of the timespan, consequences (over $13 million in losses), and abuse of trust

involved in Hans criminal conduct, a sentence of imprisonment is essential to reflect the

seriousness of the offense and provide just punishment. The need for the sentence to promote

respect for the law further justifies a sentence of imprisonment within the guidelines.

The Need for the Sentence to Afford Adequate Deterrence to Criminal Conduct. The government does not believe Dr. Han will offend again, but the governments

primary sentencing goal in this case is deterrence: sending a message to the Defendant and

others within the scientific community that the manipulation of data to receive grant funds is

unacceptable and, if caught, they will be punished. The NIH does not have the resources to audit

every grant awarded, nor should they. The agency relies on the honesty of those applying, and

trusts that the scientists are presenting accurate data. The Defendant violated that trust,

damaging the credibility of others in the process.


8

VI. CONCLUSION

For the reasons set forth above, the government respectfully requests a sentence of

imprisonment within the guideline range.

Respectfully Submitted, Nicholas A. Klinefeldt United States Attorney By: /s/Rachel J. Scherle Rachel J. Scherle Assistant United States Attorney U.S. Courthouse Annex, Suite 286 110 E. Court Avenue Des Moines, Iowa 50309 Tel: (515) 473-9300 Fax: (515) 473-9292 Email: [email protected] CERTIFICATE OF SERVICE I hereby certify that on June 29, 2015, I electronically filed the foregoing with the Clerk of Court using the CM ECF system. I hereby certify that a copy of this document was served on the parties or attorneys of record by: U.S. Mail Fax Hand Delivery X ECF/Electronic filing Other means UNITED STATES ATTORNEY By: /s/ J. Beane Legal Assistant


dong han prosecution recommendation

Documents