NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

 v. 

DONALD OLGADO, 

Defendant-Appellant.

No. 22-10305 

D.C. No. 

5:17-cr-00603-BLF-2 

MEMORANDUM*

Appeal from the United States District Court

for the Northern District of California

Beth Labson Freeman, District Judge, Presiding

Argued and Submitted December 13, 2023

San Francisco, California

Before: GOULD, KOH, and DESAI, Circuit Judges.

Donald Olgado appeals his conviction for eleven counts of possession of 

stolen trade secrets. While Mr. Olgado was employed by Applied Materials, Inc.

(“Applied”), he downloaded several thousand files containing trade secrets onto his 

external drive. The government argued that he downloaded the files to replicate one 

of Applied’s products for the benefit of an unauthorized spinoff company. A jury 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

FILED

JAN 5 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
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found Mr. Olgado guilty on all eleven counts of possession of stolen trade secrets, 

and the district court denied Mr. Olgado’s motion for judgment of acquittal.

Mr. Olgado challenges the sufficiency of the evidence for three elements of 

his conviction. He also challenges the district court’s refusal to give his requested 

jury instruction and the constitutionality of the trade secret theft statute as applied to 

him. We have jurisdiction under 28 U.S.C. § 1291, and we affirm. 

1. A rational factfinder could conclude that the government proved the 

elements of possession of stolen trade secrets beyond a reasonable doubt. We review 

de novo a district court’s denial of a motion for judgment of acquittal based on 

insufficient evidence. United States v. Amintobia, 57 F.4th 687, 697 (9th Cir. 2023). 

When evaluating the sufficiency of the evidence, we view the evidence in the light 

most favorable to the government and presume that the jury resolved any conflicting 

inferences in favor of the government. United States v. Nevils, 598 F.3d 1158, 1164 

(9th Cir. 2010) (en banc).

First, a rational factfinder could conclude that Mr. Olgado possessed the files

that he downloaded to his external drive. To prove possession, the government 

needed to demonstrate that Mr. Olgado had (1) knowledge of the files, and (2) 

physical control or the power and intent to exercise dominion and control over the 

files. See United States v. Romm, 455 F.3d 990, 999–1000 (9th Cir. 2006). Mr. 

Olgado acknowledges that he downloaded the files. Thus, there is no dispute that he 
3 

had actual knowledge of their presence. And the government introduced sufficient 

evidence to prove that Mr. Olgado could exercise dominion and control over the 

files. In addition to downloading the files, Mr. Olgado had the ability to transfer or 

send the files, and he did so when he transferred the files from his hard drive to 

several DVDs. Mr. Olgado also negotiated a software deal that included the specific 

software he needed to view the files.

Next, a rational factfinder could conclude that Mr. Olgado knew the trade 

secret information was obtained or appropriated without authorization. The plain 

meaning of “without authorization” is without “permission or power granted by an 

authority.” LVRC Holdings LLC v. Brekka, 581 F.3d 1127, 1133 (9th Cir. 2009)

(quoting Random House Unabridged Dictionary, at 139 (2001)). The government 

introduced sufficient evidence to prove that Mr. Olgado obtained the files without 

permission, including that Applied had a policy prohibiting downloading files to 

external drives and that Mr. Olgado knew the policy applied to him. Even accepting 

Mr. Olgado’s contention that this element requires a showing of “improper means,” 

his circumvention of Applied’s policy and software preventing external downloads 

constitutes improper means. 

Last, a rational factfinder could conclude that Mr. Olgado intended to convert 

the trade secret information. The statute requires an intent to convert the trade secret 

information “to the economic benefit of anyone other than the owner.” 18 U.S.C. 
4 

§ 1832(a). The government presented evidence that Mr. Olgado was involved in 

efforts to create an unauthorized spinoff company and that he intended to use the 

files to recreate Applied’s products for the benefit of the new company. For example, 

Mr. Olgado downloaded nearly 100% of the files needed to recreate Applied’s tool, 

estimated that it would take the spinoff significantly less time than it took Applied 

to create the product, communicated outside of regular work channels, and lied when 

confronted about his actions. 

2. “A criminal defendant has a constitutional right to have the jury instructed 

according to his theory of the case,” United States v. Johnson, 459 F.3d 990, 993 

(9th Cir. 2006), when the theory “(1) has some foundation in the evidence presented,

(2) is supported by law, and (3) is not adequately covered by other instructions,” 

United States v. Barragan, 871 F.3d 689, 710 (9th Cir. 2017). We review de novo 

whether an instruction is supported by law. Id. The district court did not err by 

declining to adopt Mr. Olgado’s proposed jury instruction because it improperly 

added “access” as an element of possession. While access is often probative of 

dominion and control, our cases do not require the government to independently 

prove access. See United States v. Kuchinski, 469 F.3d 853, 863 (9th Cir. 2006) (a

defendant who lacks knowledge about files and lacks “access to and control over 

those files” may still possess the files where there is “some other indication of 

dominion and control” over them). 
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3. The trade secret theft statute is not unconstitutional as applied to Mr. 

Olgado. When a statute is not facially ambiguous, “due process bars courts from 

applying a novel construction” of the statute “to conduct that neither the statute nor 

any prior judicial decision has fairly disclosed to be within its scope.” United States 

v. Lanier, 520 U.S. 259, 266 (1997). But if “the conduct charged fell [within] the 

plain meaning of the statute standing alone,” a prosecution does not violate due 

process. United States v. Sineneng-Smith, 982 F.3d 766, 775 (9th Cir. 2020). Mr. 

Olgado’s conduct falls squarely within the plain meaning of the statute. See 18 U.S.C 

§ 1832(a)(3).

AFFIRMED.