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Proceedings recorded in stenotype.

Transcript produced with computer-aided transcription.

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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

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UNITED STATES OF AMERICA,

Plaintiff,

vs.

YANJUN XU, also known as XU

YANJUN, also known as QU HUI,

also known as ZHANG HUI,

Defendant.

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CASE NO. 1:18-cr-0043

STATUS VIDEOCONFERENCE

3rd of May, 2021

12:29 P.M.

- - -

TRANSCRIPT OF PROCEEDINGS

BEFORE THE HONORABLE TIMOTHY S. BLACK, JUDGE

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APPEARANCES:

For the Plaintiff:

Timothy S. Mangan, Esq.

Emily N. Glatfelter, Esq.

Assistant United States Attorneys

221 East Fourth Street, Suite 400

Cincinnati, Ohio 45202

For the Defendant:

Robert K. McBride, Esq.

Ralph William Kohnen, Esq.

Sanna-Rae Taylor, Esq.

Jeanne Marie Cors, Esq.

Taft Stettinius and Hollister

425 East Walnut Street, Suite 1800

Cincinnati, Ohio 45202

Law Clerk: Cristina V. Frankian, Esq.

Courtroom Deputy: Rebecca Santoro

Stenographer: Lisa Conley Yungblut, RDR, RMR, CRR, CRC

United States District Court

100 East Fifth Street

Cincinnati, Ohio 45202

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(Videoconference at 12:29 p.m.)

THE COURT: Good afternoon. This is Judge Timothy

S. Black on the record on the criminal docket in the case of

United States versus Xu, 1:18-cr-43. We're here for another

conference by videoconference as docketed. I'd like to

begin by having the attorneys enter their appearances for

the record, but before I inquire, let me indicate that my

career law clerk, Cristina Frankian, is in the conference

with us, as is my courtroom deputy, Rebecca Santoro.

Ms. Lisa Conley Yungblut is the court reporter.

And, Ms. Yungblut, thank you for your work again today.

STENOGRAPHER: Yes, Your Honor. Thank you.

THE COURT: And she has indicated her presence and

participation.

So who appears, for the record, on behalf of the

plaintiff, the government, the United States?

MR. MANGAN: Your Honor, this is Tim Mangan on

behalf of the government along with Emily Glatfelter.

THE COURT: Good morning, Mr. Mangan. Good

morning, Ms. Glatfelter.

And who appears on behalf of the defendants? If

defense counsel would unmute one's self, I'm prepared for

you to enter your appearances.

MR. KOHNEN: Sorry, Judge. Ralph Kohnen on behalf

of the defendant, Mr. Xu, as well, Your Honor.

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MR. McBRIDE: And Bob McBride on behalf of the

defendant, Mr. Xu, Your Honor. Good afternoon.

THE COURT: Good afternoon.

MS. TAYLOR: Good afternoon.

THE COURT: Good afternoon, Ms. Taylor.

Is there another participant?

MS. CORS: Good afternoon, Your Honor. This is

Jeanne Cors on behalf of Mr. Xu.

THE COURT: Don't be shy. Good afternoon, Ms.

Cors.

Is there anybody out on the video that has not

entered their appearance? Very well. We have a quorum.

Let me kick this off with a statement, and then I

anticipate listening carefully to each side in due course.

At the last conference, the Court, this Judge, inquired

about a two-week continuance, at which time the government

advised that recent complications may actually necessitate

the government to seek a longer continuance.

Based on my understanding, the government has

encountered difficulties in obtaining evidence located

overseas as well perhaps as contacting and securing travel

for witnesses who reside overseas. And unless I

misapprehend, these difficulties are caused or exacerbated

by the global pandemic. So we set today's conference in

order for the defense to confer with their client and the

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government to follow up on their particular issues and for

the parties to generally confer regarding a continuance.

I was advised this morning that both sides are

available for a trial commencing mid October but note that

defendant objects to any continuance; although, he

recognizes that the Court may continue the matter regardless

and toll time under the Speedy Trial Act.

In that regard, the Speedy Trial Act allows for the

automatic exclusion of time pursuant to 18 U.S.C. Section

3161(h)(3) for, quote: "Any period of delay resulting from

the absence or unavailability of the defendant or an

essential witness," end quote. And, quote,

"unavailability," end quote, is defined under that section

as an essential witness whose, quote, "whereabouts are known

but his presence for trial cannot be obtained by due

diligence or he resists appearing at or being returned for

trial," end quote.

Additionally, to the extent that the government

seeks time to obtain evidence, review it, prepare it for

disclosure, and for the defense to then review that

evidence, the Court can also extend time, can also extend

its ends of justice finding due to the nature and complexity

of the prosecution and to offer adequate time for

preparation.

But, first, I would ask the government to

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memorialize its request for the continuance and specify its

basis for needing a continuance, and then I will hear from

the defense as to its objections or anything further. So on

behalf of the government, will one of you be responsive?

MR. MANGAN: Yes, Your Honor. This is Tim Mangan.

Following up on the comments I made at the prior conference

last week, we would be requesting a continuance because we

have made a request through an MLAT process to the Republic

of France for testimony from several individuals. We are

still awaiting a response to that MLAT request. So pursuant

to the Speedy Trial Act and the provisions cited, both

related to the availability of witnesses and as well as to

requests to foreign government, we would ask for a

continuance on that basis.

THE COURT: And you're comfortable with a date in

mid October?

MR. MANGAN: We are, Your Honor, yes.

THE COURT: Very well. Does the defense wish to be

heard, please?

MR. KOHNEN: Your Honor, the only thing that I

would ask perhaps for the benefit of the record which we all

share is that Mr. Mangan share a little more detail with us

on exactly who those witnesses or that witness is or at

least some description of how they qualify as essential

witnesses for that ground of the Court's finding.

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THE COURT: I don't think that's an unreasonable

request. Is the government in a position now to respond?

MR. MANGAN: We can, Your Honor. This request

pertains to what's been described in other briefings as the

Safran Aviation hacking, and I can go into greater detail

about what that entails. But essentially, there was an

incident that we are alleging that the defendant, Mr. Xu,

was involved in as far as coordinating and participating in

the malware hacking of Safran Aviation through an employee

of Safran. What we are seeking in the MLAT is the testimony

of the individual whose laptop was compromised as well as

another company representative who can help substantiate

some of the context regarding some of the other participants

as well as authenticate any other evidence that's needed

relative to that hacking.

So that is the substance of the issue that we

intend to present as part of our case in chief, and having

witnesses from Safran, they are essential to that particular

part of our case. And so, Your Honor, we would submit that

this does qualify as an essential witness to our case.

THE COURT: And where are they located?

MR. MANGAN: In France, and the company is based in

France. In order for us to work through the company, we

need to ask the government of France for their permission to

sort of go through that process, and so right now, we are

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waiting on the government of France to give us that

permission in order to start the process with the witnesses.

THE COURT: Very well. Was that sufficiently

responsive, in your opinion, Mr. Kohnen?

MR. KOHNEN: Absolutely it is, Your Honor. Thanks,

Tim.

THE COURT: You're speaking --

MR. KOHNEN: Tim Mangan.

THE COURT: Very well. Either side need to be

heard further on the calendar issue before the Court acts

now, from the government? Does the government need to be

heard further before I act on the issue of the calendar now?

MR. MANGAN: No, Your Honor. No, Your Honor.

Thank you.

THE COURT: Very well. And the defense?

MR. KOHNEN: No, thank you, Your Honor.

THE COURT: Very well. Well, the Court continues

the trial, jury trial, to October 18th, 2021, because I was

advised that, although the defendants object to any

continuance, their attorneys are available, and the

government attorneys are available as well, and the timing

is appropriate given the government's presentation. So I

continue the matter for jury trial until October 18th, 2021.

The Court finds that the government has indicated

the unavailability of, it sounds like, two essential

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witnesses, and, accordingly, time is automatically tolled to

afford adequate time to secure the witnesses' appearances.

Time is also tolled because, additionally, the Court finds

that, despite diligent efforts, the government requires

additional time to obtain, review, and disclose evidence

located abroad and witnesses.

And the defense, in turn -- bear with me. May not

need to put on this ends of justice, but just to double it

up, the Court finds that, despite diligent efforts, the

government requires additional time to obtain, review, and

disclose evidence and witnesses located abroad. Defendants

will require time perhaps to review. Additionally, the

Court confirms and continues to find that due to the

complexity of the case and the nature of the prosecution,

it's unreasonable to expect adequate preparation for the

trial within the time limits established under the Speedy

Trial Act. And so the Court makes an ends of justice

finding on that basis and time will be tolled until the new

trial date.

I appreciate your presentations. Is there more we

need to discuss today from either side, from the government?

MR. MANGAN: Your Honor, I think the only question

would be what the rest of the calendar would look like in

terms of deadlines. We can certainly work that out by

e-mail with Ms. Frankian, if you would like.

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THE COURT: Yeah, I would propose you work it out 

with Mr. Kohnen's team, and Ms. Frankian will be responsive 

to you all in that regard. I'm glad you raised the issue. 

Does the defense wish to be heard on anything 

further at this time? 

MR. KOHNEN: No, Your Honor. Thank you. 

THE COURT: Very well. Will you give me a moment, 

please? 

Very well. I appreciate you timely participating 

in this conference, and I am going to adjourned by leaving 

the meeting, and I want you to stay well. Take care. I'm 

leaving the meeting and adjourning the conference. Goodbye. 

(Proceedings concluded at 12:44 p.m.) 

C E R T I F I C A T E

I certify that the foregoing is a correct transcript of 

the record of proceedings in the above-entitled matter 

prepared from my stenotype notes.

/s/ _______ 05/05/2021

LISA CONLEY YUNGBLUT, RDR, RMR, CRR, CRC DATE

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