Chinese national arrest for drone surveillance

[MS Coast]

Special Agent David A Rodski explains it well in his probable cause affidavit. I will excerpt that for you rather than try to summarize in my words.

If you violate any provision of 44809, you are no longer operating under the recreational exception and Part 107 applies.

But neither 44809 nor Part 107 say anything about registration being required for flying BVLOS.

 

[Chip]

KNOWING AND WILLFUL

Federal law criminalizes the "knowing and willful" operation of an unregistered UAS or any unauthorized UAS flight in restricted airspace. What do these terms mean? I checked DOJ publications and of course Generative
AI for answers.

DOJ Answer

The term "willfully" means no more than that the forbidden act was done deliberately and with knowledge, and does not require proof of evil intent. An act is done "willfully" if done voluntarily and intentionally and with the specific intent to do something the law forbids. To commit an act "knowingly" is to do so with knowledge or awareness of the facts or situation, and not because of mistake, accident or some other innocent reason.

Generative AI Answer

"Knowing" means that someone has actual knowledge of something, or acts in a way that shows they are aware of the truth or falsity of something. This can include acting in deliberate ignorance or reckless disregard of the truth. "Willful" means that someone acts intentionally, knowingly, and purposely. It can also mean that someone deliberately and knowingly fails to fulfill a legal duty. Willful actions do not require proof of evil intent, but they do involve a deliberate decision to act in a certain way.

 

[Chip]

If you violate any provision of 44809, you are no longer operating under the recreational exception and Part 107 applies.

But neither 44809 nor Part 107 say anything about registration being required for flying BVLOS.

You cannot fly BVLOS ever unless you are operating under Part 107. You cannot operate your drone under Part 107 unless it is registered. Therefore, if you fly a 249 gram drone BVLOS with no Part 107 and not in compliance with Part 107 requirements, then you are violating multiple federal laws including flying an unregistered drone and flying without a Part 107 pilot license.

 

[MS Coast]

You cannot fly BVLOS ever unless you are operating under Part 107.

And only then if you have a specific waiver. There's no provision for BVLOS operation in Part 107 other than a waiver.

 

[Chip]

During his encounter with law enforcement, HEBERT admitted the following:


HEBERT was very poorly informed. But sometimes the pure heart/empty head defense works at least to mitigate penalty. The FBI and the court noted that HEBERT had no prior convictions and had promptly acknowledged fault once educated while expressing genuine remorse.

 

[Chip]

In contrast ZHOU knew he was flying over restricted airspace because he had searched the rules one month prior to his flight. He also admitted to "hacking" the drone to remove geofencing and altitude restrictions. I know some have said that "hacking" is not the right word but its the word ZHOU himself used which the prosecutor may use as circumstantial evidence of criminal intent.

 

[Chip]

It was not long before the US Attorney in Maryland sent HEBERT an offer from the US Government. Plead guilty to flying in restricted airspace (maximum one year sentence + $100K fine) and government will drop operating an unregistered drone (maximum three year sentence). The judge will then sentence you at its discretion.

 

[Chip]

HEBERT took the deal and was sentenced to one year unsupervised probation.

 

[Bad Santa]

If I'm reading that right, he got a slap on the wrist.

Opinion: Nobody would have said a word if he was a white citizen.

 

[mavic3usa]

HEBERT took the deal and was sentenced to one year unsupervised probation.

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Thanks for posting all that important information Chip; this will be a valuable resource in the future when it comes to understanding how the legal system will be applied to drone flyers under the federal process.

I think we all know a deal is always in the works if you have a good lawyer and you cooperate *and* as long as no one was hurt or killed and there was no property damage. Outside of espionage, flying a drone is not a crime and sanctions that involve unusually high fines and jail time should be reserved for negligent or egregious circumstances, not for accidents or careless behavior or safety infractions that ultimately do no harm. I think we all agree that grounding the equipment, suspending the license, and limited restrictions work better to educate and prevent future violations but as mentioned by someone easier, it all depends on who you are, where you are, what you say, and the current climate.

For these defendants, it was likely a nightmare both legal and financial. Hopefully none of us have to negotiate these hurdles as we continue to enjoy the hobby and I look forward to 2025 being free of additional unneeded rules and regulations and we can get back to flying our DJI drones.....freely.

 

[icecoldgin]

Defendant recently had a bail hearing. The court set the stage:

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THE DEFENSE ARGUES NO BAIL SHOULD BE REQUIRED

The defense attorney argued: For the type of case that he's got, with the fact that he doesn't have a criminal history, he has a legal permanent residence, which means that someone has done a background check on him and has deemed him to be a person who is able to reside here in the United States, there's no allegation here that he was doing this on behalf of, like the Chinese government or anything else like that. He was essentially present at Vandenberg when Space X was doing a launch. And, so, this does not seem to be the type of case that would necessitate a concern that he would otherwise flee or not appear. (emphasis added)

THE US ATTORNEY ARGUES NO BAIL DUE TO FLIGHT RISK

The federal prosecutor argued: "in terms of connections to the community, we have no present job, no residence, no family members, no one willing to put up a bond here. there's abundant evidence here and there's also a degree of sophistication. This type of crime is very difficult to detect. It's only in the instance of a drone detection system at Vandenberg that we were able to uncover it. When the Defendant was first approached, he lied about who he thought the pilot of the drone was, and then he further lied about the (indiscernible) issue of the flight...(Zhou said he only flew for 15 minutes but FBI said it was 59 minutes)...All of this is just to say that he has a predisposition in not articulating accurate or truthful (sic) with law enforcement. He also -- there's evidence of premeditation, your Honor. As you saw from the complaint affidavit, he did search through -- about the legality in what he was intending to do, as early as November, and then he still went forward with his plan. All of that is to say that, given the difficulties of addressing and detecting this type of crime and the sophistication involved here, mainly his willingness to hack a drone, we believe that he presents a risk of danger that also cannot be adequately mitigated by a bail package (emphasis added).

Comment: The government is arguing that "willingness to hack a drone," is evidence of criminal sophistication and flight risk.

On the flipside, if this was an American caught doing the same thing in China, wil this American be granted the same constitutional rights, right to counsel and a public hearing?

More importantly, will we all be able to publicly access all these information for transparency sake?

Or will this American just simply "disappear", held without trial for months, and interrogated all that time?

Just wondering ....

 

[Chip]

On the flipside, if this was an American caught doing the same thing in China, wil this American be granted the same constitutional rights, right to counsel and a public hearing?

I seriously doubt it! But here is a bizarre twist. When ZHOU was first questioned by military police at Vandenberg, he waived his Miranda rights and babbled about all kinds of stuff. He said he had previously been arrested in Shanghai, China for flying an unregistered drone around a government building. That makes it far more difficult for him to argue the pure heart empty head defense when combined with his internet searches and statements re "hacking" his drone for the flight.

More importantly, will we all be able to publicly access all these information for transparency sake?

I think the federal court will likely continue allowing public access to all key records. It seems pretty transparent to me. Where that might change is if the charges are amended to include espionage. The investigation is ongoing. But right now, the FBI probable cause affidavit does not support that.

Or will this American just simply "disappear", held without trial for months, and interrogated all that time?

Just wondering ....

If he was being held in Guantanamo, then yes that could happen. But, ZHOU is being held in federal custody in Los Angeles. He has a public defender. I bet he has talked so much already that no need to interrogate or interview him any further unless he has new information to offer.

 

[Chip]

A COOPERATING WITNESS OR CONFIDENTIAL INFORMANT EMERGES?

Trial is now set for Tuesday, March 25, 2025 at 8:30 a.m. There was a recent court filing which suggests the presence of a cooperating witness or confidential informant for the prosecution.



Excerpt:

A protective order for the discovery is necessary so that the government can produce to the defense materials regarding a cooperating witness who may testify at trial. Because these materials could be used to identify the confidential informants or cooperating witnesses, the Court finds that the unauthorized dissemination or distribution of the materials may expose him/her to potential safety risks.

6. Accordingly, the discovery that the government will provide to defense counsel in the above-captioned case will be subject to this Protective Order, as follows:

a. As used herein, “CW Materials” includes any information relating to a confidential informant’s or cooperating witness’s prior history of cooperation with law enforcement, prior criminal history, statements, or any other information that could be used to identify a confidential informant or cooperating witness, such as a name, image, address, date of birth, or unique personal identification number, such as a Social Security number, driver’s license number, account number, or telephone number.

h. The Defense Team shall not permit anyone other than the Defense Team to have possession of Confidential Information, including defendant, while outside the presence of the Defense Team.
i. Notwithstanding the above, defendant may see and review CW Materials only in the presence of defense counsel, and defense counsel shall ensure that defendant is never left alone with any CW Materials. At the conclusion of any meeting with defendant at which defendant is permitted to view CW Materials, defendant must return any CW Materials to defense counsel, who shall take all such materials with counsel. Defendant may not take any CW Materials out of the room in which defendant is meeting with defense counsel.

So, basically, the government has to provide the defendant with information as to witnesses who may testify against him at trial. The defendant has a Sixth Amendment right to "confront and cross-examine" adverse witnesses. The government has the duty to disclose information relevant to their credibility. Imagine a situation where the information is considered so sensitive that the defendant may only look at it under supervision.

 

[mavic3usa]

Another one.

71-year-old Canadian tourist charged for flying drone over Florida military base

In a twist that sounds like a plot from a spy novel, a 71-year-old Canadian tourist's drone hobby has landed him in serious legal trouble.

dronedj.com

ESPIONAGE OR TOURISM? Chinese-Born Man Arrested for Flying Drone Over Brevard County Space and Military Installations - Space Coast Daily

United States Attorney Roger B. Handberg announced that Xiao Guang Pan, 71, of Brampton, Ont. has been charged with three counts of using an unmanned aircraft to photograph vital defense installations and equipment.

spacecoastdaily.com

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[Chip]

Plea deal signed and now pending court review and approval.



Get this, the defendant was told we have information on you which we have not shared. It could be good (exculpatory) or it could be bad (inculpatory). Do you feel lucky? Do you want to go to trial and get what is behind Door # 3 or plead guilty now to willful violation of national defense airspace?