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IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

WESTERN DIVISION 

UNITED STATES OF AMERICA, 

Plaintiff, 

v. 

YANJUN XU, 

Defendant. 

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Case No. 1:18-cr-00043 

Judge Timothy S. Black 

SENTENCING MEMORANDUM OF 

YANJUN XU 

INTRODUCTION 

The first time Yanjun Xu stepped foot on American soil was when he was extradited 

from Belgium to stand trial. He was then and remains now a dedicated citizen of China who 

stands before this Court for sentencing because he was serving his country. This fact alone 

makes this case unique and warrants considerations that are not normally part of the sentencing 

calculus. 

The government asks the Court to impose a sentence on Mr. Xu that far exceeds 

sentences received by other individuals convicted of crimes involving the theft or attempted theft 

of trade secrets. The government does so based primarily upon a clear and transparent desire to 

use Mr. Xu’s sentence to send a message to China, to make him a shining example of what 

happens when the Chinese government tries to unlawfully acquire American technology. But the 

law is clear. The Court’s only duty at sentencing is to fashion a sentence that is sufficient, but no 

greater than necessary, to satisfy the factors set forth in 18 U.S.C. § 3553(a). In so doing, the 

Court must sentence Mr. Xu the person, the individual, and take into account all factors relevant 

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to sentencing, including the unique circumstances of this crime and the harsh and isolating 

conditions under which Mr. Xu has been detained for over four years. 

Both the government and the defense agree that this case falls far outside the heartland 

and does not easily lend itself to evaluation under the U.S. Sentencing Guidelines. But the parties 

disagree as to the impact these differences should have on the ultimate sentence imposed by this 

Court. As set forth more fully below, Mr. Xu respectfully submits that the aspects of this case 

that make it unique also support a term of imprisonment of time served. Such a sentence, at this 

point more than 55 months, is sufficient but not greater than necessary to accomplish the goals of 

sentencing. 

ARGUMENT 

I. Legal Standard. 

In fashioning a sentence for Mr. Xu, this Court is directed to impose a sentence that is 

“sufficient but not greater than necessary” to satisfy the factors set forth in 18 U.S.C. § 3553(a). 

18 U.S.C. § 3553(a); United States v. Grossman, 513 F.3d 592, 594 (6th Cir. 2008). These 

factors include: 

(1) the nature and circumstances of the offense and the history and characteristics 

of the defendant; 

(2) the need for the sentence imposed – 

(A) to reflect the seriousness of the offense, to promote respect for the 

law, and to provide just punishment for the offense; 

(B) to afford adequate deterrence to criminal conduct; 

(C) to protect the public from further crimes of the defendant; and 

(D) to provide the defendant with needed educational or vocational 

training, medical care, or other correctional treatment in the most effective 

manner; 

(3) the kinds of sentences available; 

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(4) the kinds of sentences and the sentencing range established [by the U.S.S.G.]; 

(5) any pertinent policy statement [from the U.S. Sentencing Commission]; 

(6) the need to avoid unwarranted sentence disparities among defendants with 

similar records who have been found guilty of similar conduct; and 

(7) the need to provide restitution to any victims of the offense. 

While the Court must first calculate a sentencing range under the United States 

Sentencing Guidelines (“guidelines”), it is no longer bound to sentence a defendant within that 

range. United States v. Booker, 543 U.S. 220, 245 (2005). “The Guidelines are not only not 

mandatory on sentencing courts; they are also not to be presumed reasonable.” Nelson v. United 

States, 555 U.S. 350, 352 (2009) (emphasis in original). In fact, the guidelines “now serve 

as one factor among several courts must consider in determining an appropriate sentence,” 

including policy considerations. Kimbrough v. United States, 552 U.S. 85, 90 (2007) (internal 

citations omitted). Ultimately, the sentence must be reasonable, not greater than necessary, and 

based on the proper consideration of all relevant sentencing factors. 

II. Mr. Xu’s Background and Personal Characteristics. 

 It is impossible to understand Mr. Xu and the crimes for which he was convicted without 

first understanding the culture into which he was born and in which he lived. China is a country 

steeped in tradition that values loyalty to one’s family, community, and country above all else. 

From an early age, children are taught to act in a manner that brings honor to the family, serves 

the community and furthers the interests of the Chinese state. Throughout his life, Mr. Xu has 

acted in accordance with these core values. 

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Mr. Xu was born into a family of modest means and limited education. As the first born 

and only son, Mr. Xu was under intense pressure to succeed, take care of his family and thereby 

bring honor and glory to his family and ancestors. PSR (Doc. 197) ¶¶ 86-88. Mr. Xu never 

resented these pressures. Rather, he sought to use the burdens placed on him and the difficult 

experiences he endured to develop personal strength. Id. ¶ 90. 

As a young boy, Mr. Xu understood that in order to succeed and bring honor to his 

family, he had to work hard academically and earn top grades in school. Id. ¶ 88. Under the 

Chinese educational system, students are tested at various stages of their matriculation. At each 

stage, the top few percent are given access to the best schools and universities; the remaining 

students are diverted to less prestigious schools or trades. This weeding out process begins early 

in a student’s elementary years and places extraordinary pressure on students like Mr. Xu whose 

families lack wealth or political connections and are thus required to place in the top few percent 

at each testing stage to ultimately have access to well-paying jobs to provide for their families. 

Often this required Mr. Xu to study late into the night and on weekends – leaving little if any 

time for relaxation. 

Through hard work and perseverance, Mr. Xu excelled academically and became the first 

member of his family to attend university. In 2001, he graduated with a degree in engineering 

from Hohai University. After completing his undergraduate degree, Mr. Xu was lucky enough to 

obtain a job supporting China’s research and development efforts. Id. ¶ 102. This position 

enabled Mr. Xu, a man of modest means, to earn solid wages and obtain access to other 

important benefits, including suitable housing and good schools. Even though he had secured a 

respected job, Mr. Xu continued his education, pursuing a graduate degree in electrical 

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engineering and automation from the Institute of Electrical Engineering, Hohai University. Id. ¶ 

100. 

Mr. Xu is a loving and caring husband and father. He has been married to his “college 

sweetheart” for over 15 years and is the proud father of a now teenage boy. Mr. Xu’s wife in her 

letter to the Court describes Mr. Xu as “a very responsible family man” who “always takes care 

of family matters, big and small.” She notes her husband enjoyed cooking healthy meals for the 

family and loved being a father to their son. She indicates he particularly enjoyed sharing his 

love of soccer with their son and spending time together. Mr. Xu’s commitment to family 

extended to caring for his aging parents who lived nearby. It has been absolutely devastating for 

those closest to Mr. Xu not to have laid eyes on him for more than four and a half years. 

Family letters also highlight Mr. Xu’s caring and compassion for the broader community 

in which he lived. Mr. Xu has always strived to live up to the teachings and values of his family 

by routinely offering his time, assistance, and even financial support to those in need. Mr. Xu’s 

father describes Mr. Xu affectionately as “[s]uch a kind filial and charitable child.” He highlights 

one example of Mr. Xu’s generosity that occurred when Mr. Xu was just eight years old. It was a 

gloomy and cold day. Mr. Xu’s father went to pick him up from school and could not find him 

anywhere. After an exhaustive search, Mr. Xu’s father finally located his son and learned that 

Mr. Xu had left school because he encountered a sick boy who was chilled and had no coat. Mr. 

Xu gave the boy his own coat and helped the boy home. 

 Letters from Mr. Xu’s family demonstrate that this act of generosity was typical of Mr. 

Xu. Throughout his life in China, Mr. Xu served charities, gave clothes to needy children, gave 

pocket money to help flood-stricken families, helped pay for another schoolmate’s emergency 

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medical bills, and routinely assisted elderly residents in the building where he lived, including by 

carrying their groceries up several flights of stairs to their apartments. 

Mr. Xu’s wife notes her husband sought to instill in their son the same charitable 

mindset. She recounts an example when they were at a theme park and found a wallet. Mr. Xu 

and his son searched for the owner. When they could not find him, they contacted the owner’s 

bank which assisted the family in notifying the customer and returning the wallet to him. For Mr. 

Xu, the point of these efforts was to instill values in his child to care about others more than 

himself, to consider the needs of the community over his own. 

These family letters highlight the critical and beneficial role Mr. Xu played in caring for 

his family and the neighboring community and describe the significant adverse effect his absence 

has had on their well-being. 

III. The Advisory Guidelines Range Does Not Adequately Measure Culpability in this Case. 

The advisory guideline range in this case is calculated using the general fraud guideline 

(U.S.S.G. § 2B1.1). For Mr. Xu, assuming the Court denies Mr. Xu’s challenges to specific 

offense enhancements, this results in a total offense level of 37, with an advisory imprisonment 

range of 210-262 months. See PSR at ¶¶ 56-68; Court Order Resolving Loss Dispute (Doc. 208). 

Although the parties arrive at the conclusion from different vantage points, they do agree on one 

thing: the Court should all but disregard the guidelines in this case. See Govt. Post-Hearing 

Mem. at 1 (“Although the law requires a calculation of the sentencing guidelines, the Court 

should rely primarily on the other 3553(a) factors in fashioning a sentence, and place relatively 

little weight on the sentencing guideline range or purported loss amount in determining the 

sentence.”). From Mr. Xu’s perspective, the advisory range vastly overstates the nature of the 

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offense and the presumptive need for deterrence and does not support any of the other nonretributive purposes of sentencing under § 3553(a). 

The sentencing guidelines are one factor under 18 U.S.C. § 3553(a) that the Court must 

consider in determining a reasonable sentence. Yet it is no secret that the fraud guideline at 

U.S.S.G. § 2B1.1 has been under assault for some time. The guideline places an unwarranted 

emphasis on loss that has no empirical basis and frequently overstates the severity of the offense. 

See United States v. Musgrave, 647 F. App’x 529, 538–39 (6th Cir. 2016) (“But there is reason 

to believe that, because the loss Guidelines were not developed using an empirical approach 

based on data about past sentencing practices, it is particularly appropriate for variances. The 

data suggest that loss is an unsound measure of the seriousness of many offenses, with the result 

that judges are increasingly willing to go below the Guidelines when they impose sentences in 

white-collar cases.”) (internal citations and quotation marks omitted); United States v. Algahaim, 

842 F.3d 796, 800 (2d Cir. 2016) (“Where the Commission has assigned a rather low base 

offense level to a crime and then increased it significantly by a loss enhancement, that 

combination of circumstances entitles a sentencing judge to consider a non-Guidelines 

sentence.”). The inherent problems with the §2B1.1 guideline range, and in particular with the 

loss enhancement, is thoroughly explained in a recent article in the Ohio State Journal of 

Criminal Law, which surveys the general reluctance of district courts nationwide to follow the 

loss guidelines for precisely these reasons. See Barry Boss, Kara Kapp, How the Economic Loss 

Guideline Lost its Way, and How to Save It, 18 OHIO STATE JOURNAL OF CRIM. LAW 605 (2021). 

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In this case, the Court has found a specific offense characteristic enhancement of 22 

points based on an intended loss amount of $50 million.1 After incorporating additional 

enhancements, a 22 point assessment raises Mr. Xu’s advisory guideline range from level 15 (18 

to 24 months) to level 37 (210-262 months). In other words, Mr. Xu’s sentence range increases 

by more than 15 years based entirely on an “intended” loss amount which, even under the 

Court’s analysis, is at best a rough approximation. There is nothing empirical, reasonable, or just 

about such a dramatic increase, which is why the loss guideline in this case simply does not 

achieve a fair result. Thus, for entirely different reasons than those proffered by the government, 

we join the government in urging the Court to afford the guidelines in this case little to no 

weight. 

IV. Mr. Xu’s Sentence Must be Individualized. 

In addition to the unworkability of the guidelines in this case, there are certain facts upon 

which the parties should agree, even after a hard-fought trial. The parties agree that neither GE 

Aviation (nor any other entity mentioned at trial) suffered actual losses. The parties should also 

agree that, even if Mr. Xu had obtained the material offered by the FBI, the Chinese aviation 

industry would still have remained years away from building jet engines with polymeric carbon 

composite fan modules. This is in no small part due to the fact that the information David Zheng 

could have provided related only to one discrete part of the entire, complex, highly-engineered 

jet engine. 

1

 Mr. Xu maintains his objection to the finding of intended loss for the reasons set forth in his 

post-hearing memorandum of law. See Doc. 205, 207. 

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The parties should also agree that, in performing his job duties, Mr. Xu was working to 

further his country’s interests. He was not a rogue operator, or criminal mastermind or, in fact, in 

any way operating outside the scope of his employment. He did not allegedly seek proprietary 

information in order to monetize it for his own greedy purposes, or to start his own company, or 

to sell it on the black market. He was working on behalf of China, trying to obtain information 

that would be helpful to the aerospace industry in the People’s Republic of China. These shared 

facts make this case extremely unusual. 

The government is asking the Court to impose a decades-long sentence. There is only one 

explanation for that request, given the lack of actual harm and the highly speculative nature of 

any potential future harm. That explanation is that the government intends to use the Court to 

“send a message” to China through the sentencing of Mr. Xu. A message, a warning, that if 

China continues to try to acquire American trade secrets, those tasked with finding such secrets 

will be punished with the utmost harshness and brutality. As its prior pleadings make clear, the 

government at sentencing will seek to make Mr. Xu a proxy for China and its policies, and will 

argue that all of the grievances the United States has against China should be channeled into the 

punishment of Mr. Xu. 

The government’s position is troubling on a number of fronts. For one, it flies in the face 

of the requirement under 18 U.S.C. § 3553(a) that sentencing be individualized. See Gall v. 

United States, 552 U.S. 38, 50 (2007) (the sentencing judge “must make an individualized 

assessment based on the facts presented”); United States v. Lee, 974 F.3d 670, 684 (6th Cir. 

2020) (“A district court's case-by-case decisionmaking thus helps achieve a defendant-specific 

sentencing goal: the need to consider ‘the nature and circumstances of the offense and the history 

and characteristics of the defendant.’” (dissent citing 18 U.S.C. § 3553(a)(1)); United States v. 

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Cavera, 550 F.3d 180,189 (2d Cir. 2008) (“the district court reaches an informed and 

individualized judgment in each case as to what is ‘sufficient, but not greater than necessary’ to 

fulfill the purposes of sentencing.”). Almost by definition, sentencing someone to “send a 

message” to an entire country takes the individual defendant out of the equation – the defendant 

could literally be anyone. In fact, as this Court made clear at the sentencing of Paul David 

Musgrave, “[t]here is no justice in imposing a sentence merely to make an example out of a 

defendant.” United States v. Musgrave, 647 F. App’x 529, 533 (6th Cir. 2016) (quoting with 

approval from this Court’s re-sentencing transcript).2

It is true that general deterrence is one of the sentencing factors the Court must consider. 

See 18 U.S.C. § 3553(a)(2)(B). However, it is only one among several factors, and an overemphasis on general deterrence, especially in this case, is problematic. First, a sentence is 

substantively unreasonable if the “court place[s] too much weight on some of the § 3553(a) 

factors and too little on others in sentencing the individual.” United States v. Rayyan, 885 F.3d 

436, 442 (6th Cir. 2018); United States v. Conatser, 514 F.3d 508, 520 (6th Cir. 2008) (“A 

sentence may be considered substantively unreasonable when the district court selects a sentence 

arbitrarily, bases the sentence on impermissible factors, fails to consider relevant sentencing 

factors, or gives an unreasonable amount of weight to any pertinent factor.”) (emphasis added). 

As the 9th Circuit stated in United States v. Barker: 

[D]eterrence as a sentencing rationale is subject to limitation. Tailoring 

punishment to the individual criminal may reduce the efficacy of deterrence, but 

that reduction is an inevitable cost of a system that eschews mechanistic 

2

 This Court initially sentenced Mr. Musgrave to one day imprisonment, which constituted a 

significant variance from his guideline range of 57-71 months. The government appealed, and 

the Sixth Circuit remanded for sentencing to allow the Court to more fully explain its sentence. 

Upon remand, the Court re-imposed a one-day custodial sentence, increased the terms of home 

confinement and supervision, and imposed a fine. See Musgrave, 647 F.App’x at 530-32. 

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punishment. General deterrence is a legitimate aim, but it has never been the sole

aim in imposing sentence. 

Central to our system of values and implicit in the requirement of individualized 

sentencing is the categorical imperative that no person may be used merely as an 

instrument of social policy, that human beings are to be treated not simply as 

means to a social end like deterrence, but also—and always—as ends in 

themselves. 

771 F.2d 1362,1366-1367 (9th Cir. 1985) (emphasis in original). 

Second, the unusual circumstances of this case make general deterrence an even less 

important factor for sentencing than usual.3 The government claims that it has been China’s 

policy for years to try to steal American technology and know-how in order to replicate such 

technology domestically and become less dependent on other nations. See e.g. Govt. Post 

Evidentiary Hearing Mem. at 5-7. Doc. 206; PAGEID 5134. According to the government, 

China’s entire economic plan – detailed in five and ten year plans released in 2015 – depends in 

part on the acquisition of foreign technology – including aviation technology. Id.

Here, those the government seeks to deter are not street gang members or even would-be 

white collar offenders who might be scared to put their hands in the cookie jar for fear of going 

to jail. The government suggests that the prosecution and harsh punishment of one alleged 

Chinese intelligence officer will “deter” an entire nation, an entire government structure, an 

entire political agenda. That is nothing more than wishful thinking. Just as Russia’s annexation 

plot in Ukraine or plans for future aggression would not be deterred by the loss or capture of one 

Russian soldier, the prosecution and sentencing of one person who was serving his country will 

3

 The National Institute of Justice, the research arm of the Department of Justice, has observed 

that decades of research into deterrence seem to suggest that imprisonment and, in particular, 

lengthy sentences, do little to deter future crime. See 

https://www.ojp.gov/pdffiles1/nij/247350.pdf. 

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do nothing to affect China’s economic and political plans. The weight of the world’s most 

populous nation will not be shifted by this Court’s sentencing of Mr. Xu.4

Moreover, if the Court is urged to take into account the impact a lengthy sentence might 

have on China, it should also consider the inverse. What is the effect of a draconian “message” 

sentence on the well-being of the United States, and particularly its foreign intelligence officers? 

The government claims that Mr. Xu is a foreign intelligence officer, working for China’s 

equivalent of the CIA. The CIA, and our country’s other clandestine services, employ 

intelligence officers all over the world – many of whom are tasked with unearthing and obtaining 

information that might be considered secret or protected by a foreign country. Indeed, the White 

House has even issued a presidential directive authorizing the gathering of foreign trade secrets if 

doing so serves the national interest. See https://www.whitehouse.gov/briefingroom/presidential-actions/2022/10/07/executive-order-on-enhancing-safeguards-for-unitedstates-signals-intelligence-activities/.5

 Although the directive distinguishes between trade secrets 

obtained to achieve an economic advantage for private businesses and those obtained to further 

4

 Indeed, if it so chose, the United States could send far more meaningful “messages” to China. It 

could impose trade controls, implement political sanctions, create corporate taxes to force 

American companies to leave China. But such steps would not be politically viable. Most of the 

products we consume here are made in China. Virtually all American global companies, 

including GE Aviation, have a presence in China. Our two countries depend on each other, 

despite all the rhetoric to the contrary, and it therefore actually makes no political sense to punish 

China in any significant way. This reality renders hollow the government’s efforts to “send a 

message” to China with Mr. Xu’s sentencing. 

5

 Sec. 2(b)(ii)(B): “It is not a legitimate objective to collect foreign private commercial 

information or trade secrets to afford a competitive advantage to United States companies and 

United States business sectors commercially. The collection of such information is authorized 

only to protect the national security of the United States or of its allies or partners.” 

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national interests, China’s nationalized economy allows for no such distinction. China’s 

economic security and success are synonymous with its national security interests. 

It hardly seems wise to start prosecuting, and worse, imprisoning for decades, alleged 

foreign intelligence officers for doing their jobs.6 Had Mr. Xu been accused of trying to steal 

national security secrets rather than economic ones, in all likelihood a political solution would 

quickly have been found and he would never have been arrested, let alone sentenced. Countries, 

especially superpowers, do not prosecute each other’s alleged intelligence officers – it’s not good 

politics.7 Mr. Xu was prosecuted and tried, but now to use his sentence as America’s retribution 

for China’s efforts to steal proprietary information is short sighted and serves neither this 

country’s national nor even its entrepreneurs’ greatest interests. 

Rather than aggravate Mr. Xu’s sentence, his work in support of China’s aviation 

industry should, in fact, be a mitigating factor. It is true that, since World War II, courts have 

6

 Although such considerations are, generally speaking, within the province of the executive 

branch, a sentencing court may consider any and all relevant factors, including policy 

disagreements, in fashioning an appropriate sentence. See Kimbrough, 552 U.S. at 101 (“courts 

may vary [from Guidelines ranges] based solely on policy considerations,”); United States v. 

Herrera-Zuniga, 571 F.3d 568, 585 (6th Cir. 2009) (same). 

7

 For example, in 2019, the U.S. expelled two diplomats from the Chinese Embassy, saying that 

at least one of them worked for Chinese intelligence, after they tried to infiltrate a military base 

in Virginia. No charges were filed. See https://www.nytimes.com/2019/12/15/world/asia/uschina-spies.html. Even when criminal charges were filed against foreign intelligence officers, 

those cases were quickly resolved politically. See e.g. 

https://www.nytimes.com/2010/07/09/world/europe/09russia.html (In 2010, ten Russian sleeper 

agents were arrested and charged with espionage in New York. Pursuant to a deal with the 

government, they quickly pled guilty, were sentenced to time served, and removed from the 

country in exchange for four individuals held in Russian prisons); 

https://www.nytimes.com/1986/09/30/world/the-daniloff-affair-4-tense-weeks.html; (In 1986, 

the U.S. and the USSR each arrested an alleged spy from the other country in the same week. 

Two weeks later, each was formally charged with espionage, and a week after that both of them 

were released and swapped.). 

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been generally skeptical of the so-called “Nuremberg Defense, ” and Mr. Xu did not invoke a 

“following orders” defense at trial. However, it is worth considering that he had no choice in the 

matter. His job, according to the government, was to acquire technological information from 

sources in the West. Just like any alleged foreign intelligence officer – including American ones 

– it was his alleged duty to seek information wherever he could get it. His choice, according to 

the prosecution, was to either follow the directives of his employers, his party, and his country, 

or resign his position and endure the personal, cultural, and financial ostracization and shame of 

taking such a step. 

The fact that Mr. Xu did not engage in the conduct of which he was convicted out of 

greed, in order to line his pockets, or for his own personal benefit – is mitigating.8 Government 

employees can be faulted for committing potential criminal acts within the scope of their 

employment, but that criticism can go only so far under most circumstances. Seeking 

information, with the risk that it could include secret information, is the bread and butter of every 

foreign agent’s job. If we expected all foreign intelligence officers (including American ones) to 

balk at seeking information from other nations, including secrets that those nations presumably 

took pains to protect, the entire foreign intelligence apparatus would fall apart. 

In sum, we urge the Court to resist the government’s demands to treat Mr. Xu as an 

example, as a message to an entire nation. Like every other criminal defendant, Mr. Xu is 

entitled to be treated as an individual, not a statistic. “The punishment should fit the offender and 

not merely the crime.” Williams v. New York, 337 U.S. 241, 247 (1949). We further urge the 

8

See e.g. United States v. Musgrave, 11CR183 (TSB), 4/13/15 ECF. Doc. No. 228, PAGEID 

4382 (“But the circumstances of the offense at issue in this case differ greatly from the typical 

case in which an individual, motivated by greed, looks to line his own pockets with someone 

else's hard-earned money. I do not believe Mr. Musgrave was motivated by greed to line his own 

pockets.”). 

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Court to consider that Mr. Xu’s alleged actions were undertaken to benefit China, not him 

personally, and therefore to conclude that the circumstances of the offense should be a mitigating 

factor in the ultimate sentence. 

V. Avoiding Sentencing Disparity. 

One of the fundamental goals of sentencing is to avoid disparities amongst similarly 

situated defendants. See 18 U.S.C 3553(a)(6). As the parties agree, however, Mr. Xu’s case falls 

far outside the norm and presents truly unique sentencing issues. This makes finding analogous 

cases for §3553(a)(6) consideration difficult. Nonetheless, it may be useful for the Court to see 

the kinds of sentences other defendants have received who were convicted of economic 

espionage or similar crimes involving intellectual property to benefit China. The following chart 

presents only a sampling of recent cases in this area: 

Case Offense Sentence 

Yu Xue 

21-2227/2228 (3d Cir. 2022) 

 Conspiracy to steal trade 

secrets from 

GlaxoSmithKline. 

1832(a)(5). 

8 months imprisonment (codefendant sentenced to time 

served). 

Li Chen 

2:19-cr-163 (S.D. Ohio 2021) 

 Conspiracy to steal trade 

secrets while working at 

Nationwide Children’s 

Hospital 

 Conspiracy to commit 

mail fraud. 

30 months imprisonment. 

Haitao Xiang 

4:19-CR-00980-HEA-1 (E.D. 

MO. 2021) 

 Conspiracy to commit 

economic espionage 

relating to Monsanto’s 

development of online 

farming software 

platform. 1831(a)(5). 

29 months imprisonment. 

Hongjin Tan 

19-CR-9-GKF (N.D. Okla. 

2020) 

 Trade secret theft, 

unauthorized transmission 

of a trade secret, 

unauthorized possession 

of a trade secret. 

1832(a)(1), (a)(3), (a)(3). 

24 months imprisonment. 

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Shan Shi 

17-cr-110 (D.D.C. 2019) 

 Conspiracy to steal trade 

secrets relating to 

syntactic foam technology 

from a U.S. Company. 

1832(a)(5). 

16 months imprisonment. 

Yihao Pu 

No. 11 CR 699 

 Unlawful transmission of 

a trade secret. 1832(a)(2). 

 Unlawful possession of a 

trade secret. 1832(a)(3). 

36 months imprisonment. 

(Remanded). 

Jun Xie 

14-cr-205 (E.D. Wis. 2014) 

 Theft of trade secrets 

involving engineering, 

testing, and source code 

data belonging to GE 

Healthcare which he sent 

to family in China and 

planned to join a Chinese 

competitor. 1832(a)(2). 

24 months probation. 

Shanshan Du / Yu Qin 

10CR20454 (E.D. Mich. 

2013) 

 (Du) Conspiracy to 

possess trade secrets 

without authorization, 

unauthorized possession 

of trade secrets, and 

aiding and abetting. 

1832(a)(5), 1832(a)(3) 

and 2. 

 (Qin) Conspiracy to 

possess trade secrets 

without authorization, 

unauthorized possession 

of trade secrets, wire 

fraud, and obstruction. 

1832(a)(5), 1832(a)(3), 

1343, 1512(c)(1). 

(Du) 12 months and one day 

imprisonment / (Qin) 36 

months imprisonment. 

As this chart demonstrates, the sentence sought by the government here falls far outside 

the mainstream of sentences imposed in economic espionage and trade secret theft cases 

involving China. In considering the other sentencing factors in 18 U.S.C. § 3553(a), the Court 

should also take into account the far more reasonable sentences that courts across the country 

have generally imposed in somewhat analogous cases. 

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17 

VI. This Court Should Take Into Account the Harsh Conditions of Detention Under Which 

Mr. Xu Has Been Housed. 

In determining a reasonable sentence under § 3553(a), this Court should also consider the 

extreme and harsh conditions of Mr. Xu’s confinement since his arrival in the United States in 

2018. See e.g., United States v. Sutton, 2007 WL 3170128 (D.N.J. Oct. 25, 2007) (granting 

variance below sentencing guideline range due to harsh conditions of confinement). First, as the 

Court knows, during the first two years of the pandemic, all federal inmates were forced to 

endure physical conditions unlike any experienced by federal inmates in modern times. This led 

to a slew of compassionate release and sentencing reduction motions all across the country, 

many of which were granted. These same concerns were also considered by judges at sentencing, 

who routinely granted lower sentences based on severe conditions of pretrial confinement. As 

one federal judge in New York explained at a recent sentencing: 

Prison is supposed to be punishment, but it is not supposed to be trauma of that 

nature or close. My colleagues and I commonly informally credit prisoners who 

have served time awaiting extradition in dreadful prisons overseas with more time 

served than measured by the calendar. The same logic applies here and then some. 

Your time in the MCC was way harder than anyone intended when you were 

detained following your arrest. 

United States v. De Jesus, 20 Cr. 19 (S.D.N.Y.) (May 12, 2022) Doc. 29 at 36. 

 Second, and perhaps even more importantly, the conditions of confinement specifically

imposed on Mr. Xu have been far more onerous than those experienced by other nonviolent, 

white collar defendants and directly impact the extent to which any additional term of 

imprisonment is necessary to achieve the sentencing goals set forth in § 3553(a), including the 

need to provide just punishment and deterrence. See id. Mr. Xu was a first-time, nonviolent 

offender who was indicted for an economic crime. He poses no threat to himself or others and, 

since his arrival in the United States, has been a model detainee. Yet despite these facts, Mr. Xu 

for the past four years has been subject to conditions of detention far more brutal and extreme 

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than those experienced by other white collar defendants and, indeed, harsher than those imposed 

even on the vast majority of violent offenders housed in the federal system. The adverse effect 

these severe conditions have had on Mr. Xu’s well-being and family relationships cannot be 

overstated. 

Mr. Xu was extradited to the United States in October 2018 and transferred to FCI Milan. 

Mr. Xu remained at FCI Milan until August 2021 when he was transferred to the Butler County 

jail to await trial and sentencing. Throughout most of Mr. Xu’s detention, both pretrial and postconviction, Mr. Xu has been locked in special segregated housing units, usually reserved for 

those violating disciplinary rules, where his rights, including his freedom of mobility, have been 

severely restricted. 

For nearly four years, and for no legitimate reason, Mr. Xu has been locked down in a 

small, 70 square foot cell for an average of 23 hours a day. He was detained in isolation and 

barred from any contact with other inmates. Even now, after some of his restrictions were 

loosened, his ability to interact with other inmates remains limited to a single bunkmate. 

At FCI Milan, Mr. Xu was granted a mere five hours per week of recreation time, which 

he had to spend in a small fenced-in courtyard, prohibited from running or accessing any 

exercise equipment. Upon arrival at Butler County jail, Mr. Xu was not allowed to be outside at 

all. For nearly fourteen months, the only time Mr. Xu spent in the fresh air was during transports 

to and from the courthouse. 

Mr. Xu arrived at FCI Milan thousands of miles from home and extremely isolated. He 

knew very little English, and yet throughout his detention in Milan, Mr. Xu had to fight to obtain 

even the most basic of reading materials in his native language, Mandarin. Only after many 

months of effort and with the assistance of the Court was Mr. Xu able to receive a small number 

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of books and other reading materials to occupy him during his 23 hours per day of lockdown. 

Restrictions on commissary privileges also deprived Mr. Xu from purchasing basic items 

available to most other detainees and inmates, including warmer clothing, athletic shoes, extra 

food and personal hygiene items. 

The restrictions placed on Mr. Xu at FCI Milan also severely hindered his ability to 

communicate effectively with his family, including his wife and son. Mail between Mr. Xu and 

his family was subject to a translation protocol that often delayed the arrival of family letters by 

many months. These family letters, which included very personal and private communications 

between a husband and wife, were then included in criminal discovery for others to see. In at 

least one instance, even Mr. Xu’s notes of a call with his attorneys were sent out for translation 

and made their way into the criminal discovery. 

Throughout his detention, Mr. Xu had no access to email and limited access to phone 

privileges. Calls to China were charged at an exorbitant rate ($1.00 or more per minute), further 

restricting his ability to stay close to his family. Mr. Xu’s inability to have consistent and timely 

communication with his loved ones has taken a significant toll on his mental and physical wellbeing. 

These kinds of severe restrictions are traditionally limited to dangerous terrorists and 

extreme violent offenders, not alleged government employees charged with attempting to steal 

economic secrets. The conditions under which Mr. Xu has been detained for these past four years 

are far more restrictive and severe than those experienced by other white collar defendants. Mr. 

Xu therefore respectfully requests the Court to join the many other courts around the country and 

consider Mr. Xu’s conditions of confinement in fashioning a reasonable sentence. 

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VII. The Court Should Consider the Collateral Effects of Mr. Xu’s Immigration Status in 

Fashioning a Sentence. 

The Court should also consider other ways in which Mr. Xu’s imprisonment sets him 

apart from other defendants. For the period of time before he is deported back to China, he will 

continue to be incarcerated far away from his beloved wife and son, and his aging parents. He 

will have few visitors, if any, and will no longer even have the legal visits that broke up the 

solitude of his detention. As a foreign national subject to deportation, he will not be eligible to 

serve his sentence in a camp, which would normally be available to non-violent, white collar 

offenders. See https://www.bop.gov/policy/progstat/5100_008.pdf at 50. He will not be able to 

avail himself of early release into a half-way house. See

https://www.bop.gov/policy/progstat/7310_004.pdf at 10-11. He will not be able to obtain 

“earned time credits,” a new feature of the First Step Act that allows individuals to earn credits 

by completing rehabilitative programming and engaging in “productive activities” like helping to 

deliver programming to other prisoners.9 Nor will he be eligible to participate in BOP’s Federal 

Prison Industries programs that provides work opportunities to inmates during their 

incarceration. 28 C.F.R. § 345.35(a); see also FBP UNICOR Program Details avail. at: 

https://www.bop.gov/inmates/custody_and_care/unicor_about.jsp. All of these inequities may be 

considered by the Court in determining a just and reasonable sentence. 

Mr. Xu’s lack of access to these BOP programs will result in Mr. Xu serving a longer 

sentence with fewer privileges than similarly-situated inmates. Mr. Xu respectfully requests that 

the Court consider the adverse effects of Mr. Xu’s immigration status on his access to BOP 

9

 Depending on a person’s risk level, 15 days of credit can be earned for every 30 days of 

programming or productive activities. These time credits can be redeemed for early transfer into 

a halfway house, home confinement, or supervised release. Non-citizens with immigration 

detainers cannot redeem earned time credits. See 18 U.S.C. § 3632(d)(4). 

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programs, including early release programs, in determining an appropriate sentence. See, e.g., 

United States v. Petrus, 588 F.3d 347, 356 (6th Cir. 2009) (acknowledging courts have discretion 

to consider variances based on factors such as immigration status and fewer prison 

opportunities). 

CONCLUSION 

The United States and the People’s Republic of China are at war, economically. The 

U.S.-China Trade War Has Become a Cold War - Carnegie Endowment for International Peace; 

Businesses Push Biden to Develop China Trade Policy - The New York Times (nytimes.com). 

Through a fortuitous sting operation, the U.S captured an alleged Chinese “soldier,” an alleged 

intelligence officer tasked with acquiring American trade secrets. In the U.S. government’s view, 

Mr. Xu personifies this economic enemy, its political agenda, and its foreign policy goals. But 

because it cannot punish the country of China itself, it now wants this Court to use Mr. Xu as a 

proxy for the Chinese nation, to use Mr. Xu’s sentence to send a message to China that its 

economic policies will not be tolerated. But in reality, no one can reasonably believe that China 

or its policies will in any way be affected by this Court’s sentencing of Mr. Xu. It is meaningless 

to suggest it. Instead, all that results if the government prevails is that one man–a man with a 

family, a career, a life–will spend much of his life in prison for serving his country. To what 

end? 

In truth, if “messages” and geopolitics are taken out of the equation, if this case is treated 

like any other criminal case, a lengthy sentence is simply not warranted under the facts. As the 

Sixth Circuit in the Musgrave case observed in referring to this Court’s sentencing, “[b]ased on 

the district court’s review of statistics and other cases, of all white-collar defendants in our 

circuit, nearly 30% receive no prison time.” Musgrave, 647 F. App’x at 538. Mr. Xu is a first 

time offender, whose alleged criminal conduct caused no actual losses and may never have led to 

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22 

substantial harm, even if he had been successful. Yet no one requests a non-custodial sentence 

for Mr. Xu. In fact, he has been imprisoned since April 2018, for more than 4 1⁄2 years. For a 

defendant with no prior criminal record who, even in the government’s view, allegedly 

committed his crime not out of some larcenous intent, but at the direction and for the greater 

good of his country, who has suffered under extraordinarily harsh conditions of confinement and 

who is alone, thousands of miles from his family, from his beloved wife and son, a sentence of 

significantly more than time served is not reasonable, not just, and does not advance the aims of 

sentencing. 

Accordingly, Mr. Xu respectfully urges this Court to consider the unusual mitigating 

facts and circumstances of this case, and to impose a sentence of time served, which here is 

sufficient but not greater than necessary to accomplish the goals of sentencing under 18 U.S.C. 

§ 3553(a). 

Respectfully submitted, 

/s/ Jeanne M. Cors

Jeanne M. Cors (0070660) 

Sanna-Rae Taylor (0091302) 

Taft Stettinius & Hollister LLP 

425 Walnut Street, Suite 1800 

Cincinnati, Ohio 45202-3957 

Telephone: (513) 381-2838 

Fax: (513) 381-0205 

cors@taftlaw.com 

srtaylor@taftlaw.com 

Florian Miedel (pro hac vice)

Miedel & Mysliwiec LLP 

80 Broad Street, Suite 1900 

New York, NY 10004 

Telephone: (212) 616-3042 

Fax: (800) 507-8507 

fm@fmamlaw.com 

COUNSEL FOR DEFENDANT 

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CERTIFICATE OF SERVICE 

I hereby certify that on November 8, 2022, a copy of the foregoing was filed electronically. 

Notice of this filing will be sent to all parties in this case by operation of the Court’s CM/ECF 

system. Parties may access this filing through the Court’s system. 

/s/ Jeanne M. Cors___________________ 

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