- DOJ says Huawei spent more than two decades operating a criminal enterprise built on theft, lies and cover-ups
- Huawei says prosecutors are “cherry-picking” unrelated events and stitching them together into a RICO case
- The verdict could reverberate far beyond Court 6G North — through global telecom and U.S.-China geopolitics
Opening arguments are in the record books at the historic U.S. criminal trial of Huawei here in Brooklyn today, and after over an hour of speechifying by the defense and prosecution, one thing is clear: each side will present the same set of facts, but accompanied by two wildly different interpretations of what connects them.
The split between those narratives will define this trial's outcome.
To make its headline RICO racketeering charge stick, the Feds must convince the jury that Huawei acted as a criminal enterprise engaged in a coherent, two-decade-long pattern of criminal conduct. The case includes allegations involving racketeering, bank and wire fraud, trade-secret theft and Huawei's dealings involving Iran and North Korea.
Lead prosecutor Taylor Stout — a medium-sized Fed in a traditional gray suit with modestly trimmed sideburns — hammered these points home, painting a picture of Huawei as a company in which legitimate business was secondary to a policy and culture of “theft, lies and corruption.”
Slightly larger but similarly besuited Huawei defense attorney Brian Heberlig rebutted that characterization, telling jurors that Huawei “had no blueprint for crime” and that its success was based on “competition, not conspiracy; innovation, not theft; and business dealings, not criminal misconduct.”
Of the two attorneys, Heberlig had the better Cochranesque “if the glove does not fit” moments, though neither exactly reached for the polemical sky. There was, disappointingly, no fist-hammering on lecterns and no shouty courtroom rhetoric.
For those interested in language — and I know I am — the most frequently used word by prosecutor Stout was “steal,” and variations thereof. For the defense, it was “cherry-picking.”
And within those semantics lies the case in a nutshell. If the U.S. government can't pin its RICO tail on the Huawei donkey, then it will have truly made an ass of itself in the eyes of much of the world.
Because make no mistake — furiously slams fist on imaginary lectern — this is not just another run-of-the-mill courtroom biff over filched trade secrets!
A pivotal case
Court 6G North at the Theodore Roosevelt United States Courthouse is playing host to a drama whose consequences will extend far beyond Huawei itself — through the global telecommunications industry and deep into geopolitics.
For well over a decade, Washington has portrayed Huawei not simply as another foreign technology company accused of breaking American laws, but as one of the most consequential strategic threats facing the United States.
It has sanctioned the company, crippled its access to advanced semiconductors, pressured allies to remove Huawei equipment from their networks, and spent billions helping American carriers rip out its equipment. The FCC's Secure and Trusted Communications Networks Reimbursement Program was specifically established to reimburse eligible carriers for removing, replacing and disposing of Huawei and ZTE equipment, while the FCC has formally described such equipment as posing a national-security risk.
Ergo, this trial is not occurring in a vacuum.
If DOJ can prove that Huawei really did operate as a criminal enterprise for more than 20 years, Washington will argue that years of extraordinary measures against the company were vindicated — and potentially that still more punitive measures are justified, including financial sanctions that could severely restrict Huawei’s access to the U.S. dollar-based international banking system.
But proving a slew of standalone lesser charges is not the same thing at all.
Unless prosecutors can bundle the alleged crimes into one overstuffed RICO legal binder by establishing the legally required connections between them, they haven't proved the government's headline proposition: that Huawei operated as a continuing racketeering enterprise.
And there is already an elephant conspicuously absent from that file: espionage.
Washington’s most effective and damaging criticism of Huawei has been that it represents a national-security and espionage risk. Yet this jury is not being asked to decide espionage. The criminal case instead includes allegations involving racketeering, bank and wire fraud, trade-secret theft and Huawei's dealings involving Iran and North Korea.
That doesn't weaken the RICO case as a matter of law. But it does create an awkward gap between the case Washington has spent years making against Huawei around the world and the case DOJ is actually making against Huawei in Brooklyn.
Connecting the dots
So can DOJ connect the dots between Huawei's alleged aberrations?
Some of the IP episodes the government is relying upon are separated not by months, but by years — stretching from the early 2000s through 2009 and into 2012 and beyond. The indictment itself points to alleged conduct in 2003, 2009 and 2012 as part of the pattern prosecutors say ties the enterprise together.
To this observer, that chronology doesn't exactly scream coherent criminal enterprise.
DOJ, of course, will argue precisely the opposite: that the longevity of the alleged conduct demonstrates that this wasn't a few rogue employees behaving badly, but an enduring corporate modus operandi (a Latin term used by lawyers to mean standard operating procedure, but with better billable hours). Indeed, the government's indictment alleges a much broader enterprise running from approximately 1999 onward and includes wire fraud, bank fraud, obstruction, trade-secret theft and other alleged predicate activity.
That's the argument prosecutors now have to prove, and some of the dots in the government’s constellation of accusations look more impressive than others.
One involves a Huawei engineer getting caught after hours at the 2004 Supercomm trade show photographing Fujitsu networking equipment with the cover removed — an incident originally broken, I am proud to say, by my former alma mater Light Reading. The engineer said it was a misunderstanding; Huawei subsequently fired him.
Naughty? Potentially.
Evidence of a 20-year multinational criminal enterprise? That's considerably more sauce than this particular trade-show anecdote seems capable of carrying.
And that is where Heberlig's “cherry-picking” argument becomes important. DOJ doesn't merely have to persuade the jury that individual Huawei employees crossed lines at different points in the company's history. Its much harder task is to persuade them that these episodes belong together — that they constitute the pattern of gangster-esque racketeering activity alleged in the RICO case, rather than a prosecutorial scrapbook assembled from decades of corporate misconduct across a company with 200,000 employees operating in 170 countries.
And if prosecutors prove only a handful of disconnected offenses while failing to establish the overarching RICO case, Huawei gets to make a very different argument:
That America spent years telling the world it was dealing with an organized criminal enterprise — and then couldn't prove it to 12 people in Brooklyn.
Back court
Presiding over all this drama is U.S. District Judge Ann M. Donnelly, who has a reputation as a no-nonsense jurist with about the same tolerance for attorney shenanigans as Mr. T had for jibber-jabber.
The assembled reporters and other gallery looky-loos today were already treated to several defense objections dispatched with impressive alacrity, Judge Donnelly snapping off a firm “overruled” almost instantaneously — the judicial equivalent of a Venus Williams backhand.
The atmosphere at the start of proceedings was hushed. Liturgical, almost. That was before opening statements were delayed for nearly two hours — Judge Donnelly explaining that smoke on the subway had prevented two jurors from getting to the courthouse — by which time the whole thing had begun to give distinctly DMV vibes.
And the court seating arrangement is… interesting.
The federal prosecutors — somewhat interchangeable, united not only by profession but appearance and sartorial preference — sit in a long row directly opposite the jury, Last Supper style, while Huawei's lawyers sit in a row behind them.
The Huawei team is a more mixed crew, about the same diversity as the jury of 18 — twelve, plus six spares — opposite them. One of the Huawei team has the largest Afro I've seen since 1972. I immediately warmed to him.
Who knows how the positions were allocated. Maybe they tossed a coin. Or maybe this is just what home-field advantage looks like in federal court: DOJ gets the front row, unobstructed sightlines and the easiest eye contact with the jury, while the defense spends the trial staring at the backs of the heads of the people trying to convict its client.
Legally, the arrangement means absolutely nothing. Then again, this is America, where baseball diamonds are technically symmetrical too.
Catch up on my previous coverage of the communications industry’s trial of the century
- Opinion: Huawei trial opens in Brooklyn as DOJ drops some charges
- Opinion: Watch out, Ray. It's the Feds!
- Opinion: The gaping hole in America's case against Huawei
- Opinion: Let's get ready to RICO!
- Opinion: Huawei: They may rip out our networks, but they'll never take our patents!
- Inside Huawei's Evolving Innovation Strategy
Stephen M. Saunders MBE is a communications analyst and USPTO-registered inventor examining how digital infrastructure — 5G, cloud and AI — is reshaping industry, power and society, as well as underpinning the emerging, ubiquitous global digital economy. As anchor of FNTV and a longtime industry insider, he focuses less on growth narratives and more on execution, risk and how hyperscale technology is distorting markets, governance and society at scale.
Opinion pieces from industry experts, analysts or our editorial staff do not represent the opinions of Fierce Network.