UNITED	STATES	DISTRICT	COURT

EASTERN	DISTRICT	OF	MICHIGAN

UNITED	STATES	OF	AMERICA,

Plaintiff,

Case	No.	14-20804

v. Hon. John Corbett O’Meara

KAI	XU,

Defendant.

_______________________________/

DEFENDANT’S	SENTENCING	MEMORANDUM

On	April	12,	2016,	this	Court	will	sentence	Defendant	Kai	Xu	based	upon	his	

conviction	for illegally	exporting	turtles	out	of	the	United	States.				Pursuant	to	a	

presentence	report	drafted	by	the	Probation	Department,	the	advisory	guideline	

range	for	Defendant’s	crime	is 57-71	months	imprisonment.		In	advance	of	that	

hearing,	Defendant	raises	two	objections	to	the	presentence	report.		First,	Defendant	

objects	to	the	government’s	contention	that	he	purchased and/or	sold	over	

$1,500,000	worth	of	turtles.		The evidence	provided	by	the	government	to	the	

probation	office	does	not	support	a	finding	of	more	than	$400,000	worth	of	turtles,	

much	less	$1.5	million,	were	sold	by	Defendant.		Second,	Defendant	objects	to	the	

government’s	contention	that	the	turtles	he	purchased	and	later	exported	exposed	

the	general	public	to	a	significant	risk	of	disease.	 While	there	are	regulations	that	

require	quarantine	of	wildlife	imported into	the	United	States,	Kai	only	purchased	

turtles	from	breeders	in	the	United	States for	the	purpose	of	exporting	them	to	

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China.	Thus,	the	turtles	were	not	required	to	be	quarantined	and	pose	no	risk	of	

disease	to	the	public.	

Irrespective	of	the	advisory	guideline	range,	Defendant	respectfully	requests	

that	this	Court	sentence	him	to	time	served.		At	the	time	of	sentencing,	Defendant	

will	have	served	approximately	nineteen months	in	custody	for	what	is	essentially a	

regulatory	offense.		He	deeply	regrets	his	decision	to	make	money	by	buying	turtles	

in	the	United	States	and	selling them	to	a	buyer China in	contravention	of	U.S.	law	

and	regulation.		He	readily	admitted	his	crime	once	questioned	by	authorities,	and	

during	his	nineteen-month	detention,	he	has	bettered	himself	and	those	around	him.		

Kai	Xu has	paid	his	debt	to	society,	and	this	Court	should	sentence	him	to	time	

served,	and	allow	him	to	be	deported	back	to	Canada.	

ARGUMENT

I. DEFENDANT	DID	NOT	SELL MORE	THAN	$1,500,000	WORTH	OF	

TURTLES	OR	RISK	HARM	TO	THE	PUBLIC	BY	EXPORTING	TURTLES.	

A. DEFENDANT	BOUGHT/SOLD	LESS	THAN	$550,000	WORTH	OF	

TURTLES.

The	Probation	Office	states	in	the	presentence	report	that	the	“amount	of	

money	the	defendant	received	from	the	sales	[of	turtles]	exceeded	$1,500,000.00.”		

(PSR	¶	32.)		The	government’s	evidence	does	not	support	that	figure.		To	the	

contrary,	the	evidence	shows	that	Kai	never	received	anywhere	close	to	that	amount	

of	money	during	the	course	of	his	turtle	sales. The	value	of	the	turtles	identified	in	

the	presentence	report,	an	analysis	of	the	bank	account	used	by	Kai, and	Kai’s	own	

text	messages	show	that	he	received	less	than	$400,000.	

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1. The	Market	Price	of	the	Turtles	Identified	In	the	

Presentence	Report	is	Less	than	$300,000

The	presentence	report	identifies	a	number	of	turtles	exported,	or	attempted	

to	be	exported	by	Kai.	 (PSR	¶¶	12-22.)		The	report	is	based	on	the	information	

provided	to	the	probation	office	by	the	government	relating	to	the	offense	conduct.		

As	shown	in	the	chart	below,	the	estimated	total	aggregate	value	of	the	turtles	

identified	in	the	presentence	report	is	less	than	$300,000:		

The	estimates	above	are	based	upon	Agent	Iannelli’s testimony	at	Kai’s	

detention	hearing,	the	values	provided	to	the	probation	department, and	the	

Para. Date Turtles Price (USD) Source Total

12 4.22.14 21	Eastern	Box $1,050 Market $1,050

13 5.9.14 4	Black	Pond	Spotted

3	North	American	Wood

2	Yellow	Blotch	Map

$600

$1,500

$1,000

Market

Iannelli	Test.	P.	33

Market

$3,100

14 6.11.14 16	Asian	

38		Unknown

Unknown

15 8.5.14 34	Eastern	Box

10	Albino	Red-Eared	Sliders	

7	Diamondback	

$1,700

$6,500

$273

Market

Iannelli	Test.	P.	

Paragraph	16.

$8,473

16 9.4.14 2100	Diamondback $82,000 Paragraph	16.		 $82,000

18 9.5.14 300	Diamondback	and	RedEared	Sliders.		$30,000 Paragraph	18.	 $30,000

19 9.16.14 15	Eastern	Box

20	Loggerhead	Musk

30	North	American	Wood

10	Blanding	

10	Kwangtung	River

126	Diamondback

$750

$1,600

$15,000

$3,000

$10,000

$4,920

Market

Market

Iannelli Test.	P.	33

Iannelli Test.	P.	33

Paragraph	19.

Paragraph	16.	

$26,270

20 9.23.14 49	North	American	Wood

21	Kwangtung	River

22	Blanding	

100	Spotted

56	Albino	Red-earned	Sliders

754	Diamondback

$24,500

$21,000

$14,300

$15,000

$36,400

$29,441

Iannelli Test.	P.	33

Paragraph	19.		

Iannelli	Test.	P.	33

Market

Iannelli	Test.	P.	33

Paragraph	16.

$140,641

22 Total $283,061

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average	market	price	based	on	an	unofficial	survey	of	turtle	trade	shows.		Turtles	

are	easily	bred	in	captivity,	therefore,	they	are	not	difficult	to	find	or	purchase	in	the	

United	States,	which,	like	China,	has	thousands	of	breeders	and	collectors.	 For	

example,	the	Michigan	Reptile	&	Pet	Expo	has	thousands	of	turtles	for	sale	by	

breeders	the	“second	Saturday	of	every	month.”		(See	Ex.	A,	photos	from	trade	

show.)		At	those	trade	shows,	breeders	sell	the	same	type	of	turtles	purchased	by	

Kai.		Id.		In	addition,	breeders	sell	their	turtles	online	and	ship	them	throughout	the	

country.		(See	Ex.	B,	screenshots	from	online	turtle	sales.)	

The	government	seeks	to	hold Kai	“accountable	for	an	aggregate	market	

value	exceeding	$1,500,000.00”	in	turtles	purchased	and	sold.		The	aggregate	

market	value	of	the	turtles	identified	in	the	presentence	report,	however, falls	far	

short	of	that	number. The	information	provided	to	the	probation	department	by	the	

government	reflects	that	Kai	had	a	significant,	but	much	smaller	than	alleged,	turtle	

business.		

2. The	Bank Account	Used	by	Kai	Shows	that	He	Received

$366,622.	

Since	his	arrest,	Kai	has	acknowledged	that	he purchased	turtles	from	

breeders	in	the	United	States	with	the	intent	to	sell	them	to	a	buyer	in	China.		

Originally,	Kai	attempted	to	bring	the	turtles	across	the	border	from	the	United	

States	to	Canada,	so	he	could	ship	them	to	China.		Kai’s	buyer	in	China	suggested	

that	bringing	the	turtles	across	the	border	was	unnecessary	and	that	Kai	should	

simply	ship	them	from	the	United	States.		To	facilitate	the	turtle	purchases,	Kai’s	

buyer	advanced the	money	used	to	buy	the	turtles.	

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During	the	course	of	its investigation,	the	government obtained	records	

related	to	the	account	used	by	Kai	to	receive	money	from his	turtle	buyer	in	China.		

Agents	distilled	that	information	and	created	a	spreadsheet	showing	how	much	

money	was	received	through	the	account.	(Ex.	C,	Spreadsheet.)		The	Account	is	in	

the	name	of	Kai’s	father,	Hong	Xu,	who	spends	considerable	time	in	China	and	who	

was	unaware	of	Kai’s	turtle	trade	or	the	money	flowing	through	this	particular	

account.		

Assuming	that	all	of	the	transactions	identified	in	the	spreadsheet	actually	

related	to	the	turtle	trade,	the	total	amount	received by	Kai	from	the	buyer	was	

$366,622.		That	amount	is	consistent	with	the	market	value	of	the	turtles	identified	

in the	presentence	report,	and	nowhere	close	to	the	$1.5	million	figure	alleged	by	

the	government.		

3. The	Text	Messages	Obtained	by	the	Government	During	

the	Court	of	Kai	Xu’s	Proffer	Show	Less	than	$550,000	

Worth	of	Turtles.	

The	government	has	suggested	that	messages	provided	by	Kai	to	the	

government	during	his	proffer	support	its theory	that	he	purchased	or	sold	more	

than	$1,500,000	worth	of	turtles.		During	the	course	of	a	two-day	proffer that	

occurred	shortly	after	his	arraignment,	Kai	answered	hundreds	of	questions	posed	

to	him	by	Agents	from	the	U.S.	Fish	and	Wildlife	Service.	In	addition	to	identifying	

every	person	with	whom	he	bought	or	sold	turtles,	Kai	also	provided	his	text	or	chat	

messages	to	the	government.				He	did	so	by	divulging	his	passcode	on	his	Apple	

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IPhone	5S	to	the	government	agents	so	that	they	could	search	his	phone,	which,	they	

could	not	have	otherwise	searched.1

Kai	willingly	provided	valuable	assistance	to	the	government	by	providing	

information	about	his	activities	with	others.		Despite	that	assistance, the	

government	has	declined to	file	a	motion	for	downward	departure.		Further,	the	

government	now seeks to	use	that	information	against	him	by	providing	the	Court	

with	a	flawed	translation	of the	messages between	him	and	his	buyer,	which	were	

all written	in	Chinese.		(See	Ex.	D;	Spreadsheets	of	texts	and	translation.)		

In	a	series	of	disjointed	messages,	Kai	and	his	buyer	discuss	prices	for	

various	turtles	and	the	money	that	the	buyer	would	be	willing	to	pay.			Nearly	all	of	

the	prices	relate	to	Chinese	currency,	the	Yuan,	which	currently	has	an	exchange	

rate	of	over	six	Yuan	to	every	dollar.		To	the	extent	that	Kai	or	the	buyer	discussed	

prices	in	US	dollars	they	would	typically	refer	to	the	words	“US	dollars.”	(See Ex	D,	

line	58656:		“He	was	selling	for	$1,500	US	dollars	a	piece;	line	58912:	“We	have	ones	

for	$500	US	Dollars”;	line	59236:		“Price	is	$76.99	US	Dollars”;	line	59700:		“$1,200	

US	Dollars	a	piece.”

																																																							 1 The	government	now	seeks	to	use	the	information	provided	during	Kai’s	proffer	

against	him	arguing	that	they	made	“derivative	use”	of	his	proffer	statement	to	

obtain	his	messages.	The	government	contends	that	they	had	a	search	warrant	to	

search	his	IPhone	and	simply	needed	Kai	to	divulge	his	passcode	to	execute	the	

search	warrant.		By	using	his	voluntarily	provided	passcode	to	open	his	IPhone	they	

maintain	that	they	made	derivative	use	of	his	proffer.		This	is	not	derivative	use.		

See,	e.g., United	States	v.	Scott,	12	F.	Supp	3d	298,	303-304		(Dist.	Mass.	2014)	(Using	

documents	obtained	through	a	proffer	to	get	a	search	warrant	to	obtain	the	same	

documents	is	not	derivative	use.).		This	Court	should	not	consider	information	

obtained	through	Kai’s	proffer,	but	even	if	it	does,	that	information	does	not	support	

the	government’s	claims.

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Despite	the	absence	of	the	words	US	dollars	or	the	US	dollar	sign	($)	in	the	

text,	the	government’s	translator	erroneously	added	a	US	dollar	sign	($)	after	nearly	

every	number found	in	the	messages, even	when	it	is	clear	that	the	written	Chinese	

text	refers	to	Yuan.		For	example, Line	58742 of	the	text	messages	references	prices	

for	certain	turtles,	including	“3,600” for	Albino	Red-eared	Sliders.			 During	Special	

Agent	Mona	Ianelli’s	testimony	at	Kai’s	detention	hearing, she	testified	that	“albino	

red	eared	sliders	.	.	.	sell	for	$650.”			(Ex.	E,	Det.	Hearing	p.	33.)	Given	that	the	

exchange	rate	of	Yuan	to	Dollar	is	about six	to	one,	the	price	discussed	for	Albino	

Red-eared	Sliders	obviously	is	in	Yuan.		Nevertheless,	the	government’s	translation	

lists	it	as	US	dollars.

Indeed,	the	translation	is	much	worse	than	mere	confusion	between	

currencies.		On	at	least	one	occasion, the	English	translation	incorrectly	refers	to	

numbers	as	currency	when	they clearly	have nothing	to	do	with	currency.		On	line	

58844,	Kai	and	his	buyer	are	speaking	about	a	zip	code in	china where	a	package

should	be	sent.		(See	Ex.	D,	Line	58844.)		The	buyer	states	that	it	is located	at

“510378,” which	the	translator	interpreted	to mean	“$510,378.”		

Even	when	the	parties	to	the	messages	specifically	identify	the	type	of	

currency	to	which	they	refer,	the	translator	still	mistakenly	refers	to	Yuan	as	US	

dollars.		(See	Line	61993:		“25-30	Red-necked	Turtles	.	.	.	 $16,500	Chinese	Yuan.	.	.”)

Indeed,	when	the	discussing	the	total amount	of	money	received	by	Kai	from	the	

buyer	over	the	course	of	their	dealings,	Kai’s	buyer	acknowledged	he	sent	

“1,756,200 Chinese	Yuan.”	(See	line	61837).		Despite	specifically	identifying	the	

transaction	in	“Yuan,”	the	translator	still	places a	US	dollar	sign	in	front	of	that	

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figure. 1,756,200	Chinese	Yuan	is	worth	about	$283,258	US	dollars,	which	is	

amount	is	consistent	with	all	the	other	evidence	that	Kai	did	not	buy/sell	more	than	

$400,000	USD	worth	of	turtles.		

The	text	messages	obtained	through	Kai’s	proffer	are	written	in	Chinese,	and	

the	English	translation	provided	by	the	government	is	inaccurate	and	should	not	be	

relied	upon	by	this	Court	to	find	that	Kai	received	over	$1,500,000.	This	Court	

should	give	the	messages	little	weight.		Even	if	it	does,	Kai	asks	that	it	recognize	that	

the	figures	referenced	in	the	messages	refer	to	Chinese	Yuan	and	not	US	dollars,	

which	support	a	finding	of	less	than	$300,000	in	turtle	value.	

B. DEFENDANT	DID	NOT	HARM	THE	PUBLIC	BY	EXPORTING	

TURTLES	BOUGHT	FROM	BREEDERS	OUTSIDE	THE	UNITED	

STATES.

Pursuant	to	USSG	2Q2.1(b)(2),	a	two-level	guideline	enhancement	applies	if	

the	Court	finds	that	a	defendant	“created	a	significant	risk	of	infestation	or	disease	

transmission	potentially	harmful	to	humans,	fish,	wildlife,	or	plants.”		USSG	

2Q2.1(b)(2).		The	government	points	to	regulations	requiring	the	quarantine	of	

wildlife	prior	to	entering	the	United	States.		The	government	claims	that	by	selling	

turtles	without	a	permit,	Kai	violated	42	C.F.R.	§	71.52,	which	regulates	turtle	

importation.		Kai,	however, did	not	import	turtles	from	China,	he	exported	them	to	

China.2		The	purpose	of	the	regulation	is	to	stop	turtles	from	entering	our	

boundaries	without	first	being	quarantined	and	checked	for	disease.		

																																																							 2 To	the	extent	the	government	argues	that	Kai	worked	with	others	who	illegally	

imported	turtles	into	the	United	States,	Kai	did	not	order,	request	or	suggest	to	

anyone	that	they	do	so.		Kai’s	focus	was	solely	on	selling	turtles	to	his	buyer	in	

China.		

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The	government	relies on	United	States	v.	Eyoum,	84	F.3d	1004	(7th	Cir.	

1996)	for	the	proposition	that	Kai’s	sale	of	turtles	was a	health	risk.		In	Eyoum,	the	

defendant	was	convicted	of	the	illegal	importation	of	turtles	from	Tanzania.		In	

affirming	the	District	Court’s	finding	that	the	defendant’s	conduct	was	a	health	risk,	

the	Seventh	Circuit	held,	“[t]he	public	health	regulation	itself	represents	an	

administrative	finding	that	the	commercial	importation	of	small	turtles--because	

they	are	likely	to	be	sold	as	pets	for	children--creates	a	significant	risk	of	disease	to	

humans.		The	district	court	was	entitled	to	rely	on	this	regulatory	conclusion	to	

support	the	two-level	enhancement	in	Eyoum's	sentence.”	

Unlike	the	defendant	in	Eyoum,	Kai	bought	turtles	from	breeders	in	the	

United	States	and	was	exporting	them	to	China.		There	was	no risk	that	children	

would	intercept	the	packages,	open	them	up	and	become	infected	with	Salmonella	

or	any	other	disease.	The	purpose	of	that	regulation	is	to	protect	the	public	from	

diseased	turtles	or	other	wildlife	entering	the	United	States.		Where,	as	here,	the	

wildlife	is	shipped	out	of	the	country,	that	government	regulation	is	not	violated.		

II. THIS	COURT	SHOULD	VARY	DOWNWARD	FROM	THE	ADVISORY	

GUIDELINES	RANGE.	

Should	the	Court	determine	that	the	adjusted	guideline	range	is	above	the	

nineteen	months	Kai	has	already	served	in	custody,	he	respectfully	requests	that	the	

Court	vary	downward	and	sentence	him	to	time	served.		Kai	is	not	your	typical

federal	detainee.		At	the	time	of	his	offense,	Kai	Xu	was	an	engineering	student	at	the	

University	of	Waterloo.	He	is	highly	intelligent,	well-educated	and	speaks	several	

languages.		He	has	no	criminal	history.		

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Despite	being	an	unlikely	federal	felon,	Kai	acknowledges	that	he	committed	

a	crime	and	recognizes	that	he	must	be	punished.	In	a	letter	submitted	to	this	Court,	

Kai	explains,	but	does	not	attempt	to	justify, his	horrible lapse	in	judgment	in

committing	this	crime.		(Ex.	F,	Letter	from	Kai	Xu.)		He	is	deeply	remorseful	for his	

actions.	He	is	a	good	student	and has	plans	to	marry	his	fiancée as	soon	as	possible	

because	the	original	date	of	their	wedding	has	passed.		Kai	intends	to	return	to	

Canada	after	his	term	of	incarceration	and	has	no	plans	to	return	to	United States.

Kai	has	spent	nineteen months	in	the	Milan	Detention	Center	waiting	to	

plead	guilty	and	be	sentenced	by	this	Court.		At	no	time,	did	he	ever	suggest	to	his	

attorneys	that	he	wished	to	go	to	trial or	otherwise	challenge	his	guilt.		At	the	time	

of	his	arraignment, he	submitted	to	a	proffer	which	took	place	over	the	course	of	

two	days.		He	has	been	separated	from	his	parents,	his	fiancée	and	his	home.		In	

addition,	Kai	has	been	the	subject	of	national	ridicule	as	the	man	who	tried	to	

smuggle	turtles	in	his	pants	into	Canada.		This	Court	should	consider	sentencing	him	

to	time	served.		Irrespective	of	the	guidelines,	nineteen months	in	custody	is	

sufficient	punishment	in	this	case.3

																																																							 3 A	brief	survey	of	other	“turtle”	smuggling	cases	throughout	the	country	shows	that	

19	months	in	custody would	be	on	the	high	end	of	sentencing	for	conduct	similar	to	

Kai’s.

Case Number/Name Jurisdiction Charge/Statute Sentence

2:2013-cr-00138

United States v. Swanson

Western District of Washington Conspiracy to smuggle wildlife 

out of the United States

18 USC § 554

12 months in prison and 3 years 

of supervised release.

2:2011-cr-00082

United States of America v. 

Yamagami et al, 

Central District of California Importing wildlife into the 

United States (3 counts)

18 U.S.C. § 545

21 months in prison, 2 years of 

supervised release, $18,403 fine.

8:2012-cr-00376

United States of America v. 

Terrance

Northern District of New York Conspiracy to Export wildlife 

from the United States into 

Canada

18 U.S.C. § 371

18 months in jail, 3 years of 

supervised release.

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To	his	credit,	Kai	has	never	suggested	that	he	should	avoid	punishment	for	

this	crime.	He	has	always	accepted	responsibility	for	his	actions,	and	while	in	jail	he	

has	bettered	himself	and	others.		In	a	letter	to	this	Court,	another	inmate	at	Milan,	

Ruben Moran	took	the	time	to	tell	this	Court	that	“there	is	a	difference	between	Mr.	

Kai	Xu	and	the	rest.”		(Ex.	G,	Letter	from	Moran.)		Mr.	Moran	notes	that	“there	are	

about	15	Hispanic	inmates”	that	Kai	helps	with	“translating	to	the	guards,	checking	

the	computer	account,	accessing	the	phones	and	applying	our	visit	forms.”			

Kai’s	willingness	to	assist	his	fellow	inmates	is	a	sign	of	his	strong	character.		

His	ability	to	learn	Spanish	so	that	he	can	help	them	is	a	testament	to	his	intelligence	

and	ability	to	adapt	to	different	situations.		Kai	Xu	has	paid	his	debt	to	society,	and	

this	Court	should	have	no	concern	that	he	will	ever	run	afoul	of	the	law	again.		This	

Court	should	sentence	him	to	time	served.	

Dated:		April	5,	2016 Respectfully	Submitted,	

s/	Matthew	G.	Borgula

Matthew	G.	Borgula	(P57330)

Springstead	Bartish	&	Borgula	Law,	PLLC

15	Ionia,	Suite	520

Grand	Rapids,	Michigan	49503

(616)	458-5500

matt@springsteadbartish.com

																																																																																																																																																																				 2:2014-cr-00339

United States of America v. 

Cheung

Central District of California Mislabeling wildlife intended 

for foreign commerce

Lacey Act:

16 U.S.C. § 3371-3378

2 months in federal prison, 2 

years of supervised release, 500 

hours community service, 

$12,000 in fines.

2:2014-cr-00181

United States of America v. 

Treigle, 

Eastern District of Louisiana Conspiracy to smuggle wildlife 

out of the United States

18 USC § 554

Lacey Act: 

16 U.S.C. § 3371-3378

15 months in federal prison, 2 

years of supervised release.

5:14-cr-20804-JCO-DRG Doc # 31 Filed 04/05/16 Pg 11 of 11 Pg ID 230