UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF OHIO 

WESTERN DIVISION 

. . . . . . . . . . . . . . . . 

UNITED STATES OF AMERICA, . Case No. 1:18-cr-043 

. 

 Plaintiff, . In-Person Status Conference

. 

 - v - . 

. Wednesday, February 6, 2019 

YANJUN XU, . 10:33 AM 

. 

 Defendant. . Cincinnati, Ohio 

. . . . . . . . . . . . . . . . 

TRANSCRIPT OF PROCEEDINGS 

BEFORE THE HONORABLE TIMOTHY S. BLACK, JUDGE 

For the Plaintiff: TIMOTHY S. MANGAN, ESQ. 

EMILY N. GLATFELTER, ESQ. 

Assistant U.S. Attorneys 

United States Attorney's Office 

221 East Fourth Street, Suite 400 

Cincinnati, Ohio 45202 

For the Defendant: 

RALPH W. KOHNEN, ESQ. ROBERT K. McBRIDE, ESQ. 

JEANNE M. CORS, ESQ. Taft, Stettinius & Hollister 

SANNA-RAE TAYLOR, ESQ. LLP 

Taft Stettinius & Hollister 1717 Dixie Highway 

 LLP Suite 910 

425 Walnut Street, Suite 1800 Covington, Kentucky 

Cincinnati, Ohio 45202-3957 

FLORIAN MIEDEL, ESQ. 

Miedel & Mysliwiec LLP 

80 Broad Street, Suite 1900 

New York, New York 10004 

Law Clerk: Cristina V. Frankian, Esq. 

Courtroom Deputy: Steven M. Snyder 

Court Reporter: Luke T. Lavin, RDR, CRR 

Proceedings recorded by stenotype; transcript

prepared by computer-aided transcription.

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 P R O C E E D I N G S 

(In open court at 10:33 AM.)

THE COURT: Good morning, ladies and gentlemen. We

are here in the open courtroom on the record on the criminal

docket in the matter of United States of America versus Xu. We

are set for another status conference. 

Would the attorneys enter their appearances for the record.

On behalf of the United States?

MR. MANGAN: Your Honor, Tim Mangan and Emily

Glatfelter.

THE COURT: Good morning to the two of you.

And on behalf of the defendant?

MR. McBRIDE: Good morning, Your Honor. Bob McBride

on behalf of Mr. Xu. I would like to, if I may, ask Mr.

Florian Miedel to introduce himself to the Court.

MR. MIEDEL: Good morning, Your Honor. Florian

Miedel. I was admitted pro hac vice for this case.

THE COURT: Welcome. Are you with the Taft firm?

MR. MIEDEL: I'm not with the Taft firm. My practice

is in New York City.

THE COURT: All by yourself?

MR. MIEDEL: I have a partnership.

THE COURT: Very well. Welcome aboard.

MR. MIEDEL: Thank you for having me.

THE COURT: As Ms. Cors is here?

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MS. CORS: Yes. Good morning, Your Honor. And Mr.

Kohnen is here as well.

THE COURT: Who?

MR. KOHNEN: Good morning, Your Honor.

THE COURT: Good morning, Mr. Kohnen. I see they

relegated you to the back bench.

MR. KOHNEN: It's a chair that I spent almost four

weeks occupying, so I'm comfortable there, Judge.

THE COURT: Very well.

Well, we're here for status, and that's what I would

anticipate hearing. The Court doesn't have any developments

per se.

Where are we on status from the government's perspective?

And then I'll hear from the defense.

MR. MANGAN: Sure, Your Honor.

Discovery is proceeding along. Where we are, I think at

the last conference with the Court we said that there was an

additional, sort of, second wave of discovery that we hoped to

get out in January. We actually got it out earlier this week,

so it is in the defendant's hands.

That involved a couple different things, one of which was a

hard drive that contained, you know, forensic images of a

number of devices, as well as some cloud accounts. I think

they had some concern about what the type of file was and, sort

of, what type of system they can read, and so we're going to

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try to -- we had a discussion yesterday. We're going to try to

get our technical people in touch with their technical people

and figure out the right format that will work for everybody.

But we have made that second wave of production to them, so

we're under way in that regard.

The next part with respect to the discovery that I would

bring up, there's an issue that they raised with us recently

regarding a consultant, and perhaps I can kind of let them

raise that issue and then we can respond to it. But overall,

in terms of the status, I think we talked about getting that

second wave out in January. We at least got it out here early

February. I think we're on track to have a CIPA motion to the

Court. I think previously we said it would be in March. I

know I've got a week where I'm out of town in March. We would

like to maybe set that for the first week or sometime early

April, if we could, if that's agreeable to the defense. But

generally I think we're on track to make that CIPA section 4

motion to the Court, and then, obviously, we would set another

status conference at the Court's pleasure, whether that's

before or after that deadline.

THE COURT: Very well. Thank you.

On behalf of the defendant, where are we on status?

MS. CORS: Yes, Your Honor.

With respect to discovery, I think, with all due respect,

we're going to have to disagree with the government on this.

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Yesterday we received a hard drive with their second wave of

discovery. We have been unable to access that hard drive at

all, and that is the issue that we're working through with the

government right now. Hopefully, we will resolve that. But

even if that issue is resolved, as I said, we haven't been able

to access this, but here's what we understand to be on this.

One is forensic images, including three iCloud accounts

that involve e-mails and other data. We have been told from

our IT people that this hard drive contains 356 gigabytes of

data.

For the Court's information, just a quick look online

suggests that one gigabyte of data could have 677,000 pages.

So we are looking -- we have been told the e-mail accounts

themselves, which I believe are the iCloud accounts, are 9.84

gigabytes. Using that 677,000-page number, we are possibly

looking at over six and a half million pages of documents. At

this point we're unable to determine what percentage of those

are or are not in English. We assume most of this is probably

in Mandarin.

So we have an enormous problem right now with respect to

the discovery we've gotten and particularly with respect to the

fact that the government has indicated they will not be

reviewing this for Brady material and translating what's here.

So we have been provided an enormous amount of data that we

really are not in a position right now to access, and even if

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we can access, to effectively identify Brady and other

materials, impeachment materials. You know, it's our

position -- 

And we are working on a motion. We just got this, so we're

not in a position to file it today. 

But, you know, it's certainly our position that the

government has an affirmative obligation to identify

impeachment material, Brady material, other materials, and that

they cannot satisfy that obligation by dumping on us, in a

foreign language, millions of pages of documents.

One other point I'd like to make on that, we have been told

that their agents are doing, quote, keyword searches and

identifying material that is then translated. That is not, as

we understand it, a thorough review of all these materials.

And here's our issue with keyword searches. In English,

that's difficult enough. Right now we're talking about

Mandarin. Looking online, there are 50,000 characters in

Mandarin. The average person uses 8,000 characters in

Mandarin. The modern dictionary has approximately 20,000

characters in Mandarin.

Mandarin, unlike English, does not have a subject. The

sentences aren't easily translated. So we don't even see a

feasible way to conduct some type of keyword search to identify

material we're going to need to protect our defendant and to

put on our defense.

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Also, given what we're receiving -- and Mr. McBride may

have some additional comments on this -- but with respect to

the CIPA process, while the government may be in a position to

file their motion soon, we don't see how we will be in any

position, given this amount of data that has not been

translated or reviewed for Brady material, impeachment

material, to be in a position to help advise the Court as to

what our potential theories of defense might be. So, you know,

we do think we've got a significant problem here and that the

government has an affirmative obligation to do more than

they're doing to identify materials that need to be produced,

both under Rule 16, under Brady.

One other point we wanted to raise with respect to this, we

also have discussed with the government finding a way to get

our client access to this discovery by means of a hard drive, a

laptop, something clearly -- he does know Mandarin; we do not.

So we are working with BOP and have indicated to the government

that we will seek to do that. So hopefully we can work through

that issue and we won't need to involve the Court in that

issue.

THE COURT: Well, among the things I heard on the

issues you presented was that you're preparing a motion.

Presumably the Court's going to need a motion, then a memo

contra and a reply and citation to the law and I'll look at it

carefully. I'm reluctant to speak off the seat of my pants.

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MS. CORS: That's fine, Your Honor.

THE COURT: But we discussed this previously at the

last status conference and the Court expressed its opinion from

the Court's seat of the pants, and if you want to tee this up,

I need pleadings on it. It sounds like this case is complex.

We'll talk about that a little bit more as we proceed.

But if this were a case where all the documents were in

English and the government produced all the relevant documents

and, you know, there were 6.5 million pages, what would the

defense response be? "I need time to review it." I get that.

But what do you propose in the final analysis? You'd rather

they didn't disclose that much information?

MS. CORS: Well, look. I mean, I think --

THE COURT: Careful.

MS. CORS: Sorry, Your Honor.

In terms of what they've collected, that was a decision

they made as to what materials they were going to go out and

affirmatively seek. Those materials are now in the

government's possession. And it's our position that they chose

to collect the information; they have an affirmative obligation

under the law to identify Brady material, impeachment material.

THE COURT: That's a peripheral issue that we're going

to need to address. But if the government produces a whole

bunch of evidence, I mean, what's the response other than to

give the defendant adequate time to review it? This is a

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hypothetical. It's all in English. There are millions of

pages of documents.

MS. CORS: I think the response is, one, yes, provide

the defense time to review it.

We also have an issue here, though, that I would raise

again, which is, you know, our client is very interested in

getting this case to trial. He is detained in solitary

confinement 23 hours a day. 

So I don't have a good answer as to how the government

should meet its burden. I think that's something they need to

address. But I would say it is their burden, and it's their

burden to identify material for us. We should not just get a

data dump.

THE COURT: I think you're talking about their

responsibility for disclosing Brady material and the like. I

was simply inquiring in the abstract when there are a whole

bunch of documents, there are a whole bunch of documents, and

counsel needs time to review it. I get that. On the Brady

issue, we're going to have to thrash that through, and I need

briefing on that.

MS. CORS: Okay. But, yes, I would agree with Your

Honor. In terms of just the number of documents, the defense

would need time to review those.

THE COURT: Okay.

Perhaps I jumped in early. Had you expressed what you

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wanted to express in regard to status, or does somebody else

want to be heard on status from the defendant's perspective?

I'm not fishing for more lawyers.

MS. CORS: That's okay, Your Honor. 

MR. McBRIDE: No, Your Honor. With respect to the

CIPA issue, we do not have an objection to the government's

request for additional time. We think that's probably prudent.

We will need a significant period of time to get through the

voluminous discovery also. So at a later date we may be able

to give you an assessment, Your Honor, for at least an initial

recitation of what our theories of defense may be.

THE COURT: Very well. That's helpful.

MR. McBRIDE: Thank you, Your Honor.

THE COURT: Thank you. Is there more from the defense

perspective?

MR. McBRIDE: I don't believe so at this time, Your

Honor. May I --

THE COURT: Well, I was going to ask if the prominent

lawyers wish to be heard.

MR. McBRIDE: Thank you, Your Honor.

THE COURT: That would include the visitor.

MR. KOHNEN: Oh. Thank you. The visitor is Sanna-Rae

Taylor from our office, Your Honor.

THE COURT: Great. And her capacity is?

MR. KOHNEN: Pardon me?

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THE COURT: Her capacity is?

MR. KOHNEN: Well, she's so far pulled the laboring

oar on the draft of the memo that we've been discussing.

THE COURT: Awesome. She's an attorney?

MR. KOHNEN: And she's a good one too, Your Honor.

THE COURT: I can't wait.

MR. KOHNEN: I think you'll enjoy her work product. 

THE COURT: No doubt. 

MR. KOHNEN: The one thing I did want to point out for

the Court, just for the Court's information, stepping away for

a minute from the Court's abstract question dealing only in

English, the one thing I think you should know or perhaps be

reminded of is that the government has translated and intends

to translate and share with us into the English language the

material that they intend to use in their case-in-chief, and

perhaps in a rebuttal case. So we're going to be dealing with

an easily readable subset of the documents that Ms. Cors

described when seeing what the government intends to bring at

us.

What the government's not doing is a similar thing from the

stuff that they're obligated to provide to us in Brady, and I

think that's a pretty important distinction.

THE COURT: That's helpful. I'm glad you spoke up.

What is the gentleman newly arrived from New York's name?

I'm sorry.

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MR. MIEDEL: Florian Miedel.

THE COURT: Have you talked to the other lawyers about

how difficult I am?

(Laughter.)

MR. MIEDEL: I'll assert privilege on that one.

THE COURT: You know, that's a good answer. You know,

is there anything you wish to be heard on today? This is

typically what I do. I mean, I pick on people.

MR. MIEDEL: Well, that's fine, Your Honor. I'm used

to that.

The only thing I would say, it's an issue that Ms. Cors

raised peripherally, which is the access of this, all this

massive discovery that -- for our client and his ability to

review it. And I can just say from the perspective of our

district in New York, it's a common practice in complex cases

with voluminous electronic discovery to provide inmates,

detained defendants, with a laptop computer so that they can

review the discovery. And it's in a controlled setting, so in

a sense that they will be taken to a room by a guard. They

can, you know, review the discovery for whatever, six or eight

hours, and then they are taken back to wherever they are. So

they don't have the discovery with them, but they can review it

under supervision. 

And I think that is a way that Mr. Xu could be involved in

his defense in a more constructive way.

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THE COURT: I'm glad we didn't let that slip. I mean,

I agree entirely, but the BOP is not necessarily responsive to

this district judge. What I heard Ms. Cors say is that she's

working with the BOP and the government. If I can be helpful,

fine. But absolutely. I mean, he speaks the language. He

ought to be able to see the documents. But I don't make the

rules of the BOP, as they remind me frequently.

MR. MIEDEL: All right.

THE COURT: Thank you for speaking up.

All right. The defense has been fully heard. They've

turned the spotlight on, and my response in large part is:

File a motion.

MR. MANGAN: Okay.

THE COURT: But if you wish to defend your --

MR. MANGAN: Just to follow up on a couple of the

points, Your Honor.

First of all, they raised the issue about getting laptop

access in our call yesterday.

THE COURT: Right.

MR. MANGAN: We've spoken with the BOP this morning.

I think that is workable.

THE COURT: Good.

MR. MANGAN: So I think we can work on something like

that. They would keep custody of, whether it's the hard drive

or the CD, but there is a library that is available there to

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those that are in the special housing unit. I think the only

limitation is, of the four guys there, they can only have one

at a time in there, but they can work that out.

So I think that's something that we can work on, and that

should be helpful --

THE COURT: Good.

MR. MANGAN: -- in terms of having the defendant

review the discovery. 

And I think, to sort of piggyback on what Mr. Kohnen said,

we did produce with the hard drive, which are the actual

accounts -- 

And they are readable with certain software. I think it's

just a matter of they don't have that particular software. We

need to figure out a way to match up, you know, their

capabilities and the file format.

But in addition to that hard drive, which contained all of

the raw data that we turned over -- and these are, by the way,

you know, the devices and the accounts of the defendant -- we

also produced a CD, which contain the translations that we do

have of what has been pulled from some of that data. We turned

that over to them. Those are our translations. So that's

available to them as well, as we speak here.

What we tried to point out to the Court previously is that,

you know, look, we are giving them access to the data in the

same format that we have. To the extent we get anything

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translated, we will give them that translation, and we will not

attempt to use anything at trial that we have not already

translated and provided to them in a translated form.

Beyond that -- and we can respond to their motion,

obviously, in writing -- we believe that satisfies all of our

obligations both under Rule 16 as well as the additional

obligations under Brady.

The only other issue, then, before we get to the calendar,

Your Honor, would be I mentioned before -- they didn't bring it

up -- there was an issue that they raised in our conference

yesterday about possibly having an individual who is in China

designated as a consultant, which has certain ramifications

under the protective order. That would make the person part of

the defense team. That would then give the person access to

discovery materials up to but not including the attorneys' eyes

only materials.

We have a concern about that, that giving a -- you know,

designating such a person as a consultant, giving them access,

would sort of water down and ruin the original idea of the

protective order. I would simply ask at this point, if they

get to that point where they would like to designate the

consultant, we would ask that they -- I appreciate that they

raised it with us, first of all, by phone. We do have a

concern with that, and we would ask that they -- you know, we

either address it with the Court before going forward and

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actually providing anything to that person.

THE COURT: Very well.

I was just looking at the transcript of the status

conference we had initially when we talked some of this

through. I would encourage you to look at it yourselves.

The government raised one new issue, and that's the issue

of a consultant. Before you retain or before you get geared

up, is that something that needs to be brought to the Court's

attention by a motion, from the defendant's perspective?

MR. McBRIDE: Your Honor, with the government opposing

or having concerns about it, I think it would be prudent for us

to raise that with the Court and let the Court evaluate it and

rule on it.

If I may generally address what our thoughts are on this.

This individual is a lawyer in China. We do not expect to use

him as a lawyer, he would not see the attorneys' eyes only

information, and we would not permit any physical evidence to

go into China or be taken with him.

We would allow him to, when he's here, if he comes here,

review the appropriate discovery available under the protective

order to consultants, but what we want to use him for is sort

of legs on the ground in China for us to do some investigation

into the allegations that have been raised, so we may be using

information that comes from the discovery to help him form what

we'd like him to investigate, Your Honor.

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THE COURT: And my suggestion was that we get this

briefed out before it's on fire.

MR. McBRIDE: We will do so immediately, Your Honor.

THE COURT: Very well.

I mean, somebody needs to file a motion, if it's a motion

for whatever. The defense has said they're going to address

it, and the fifth lawyer is taking notes.

Very well. I have one more issue, but is there anything

else you all wanted to bring to the Court's attention at the

status conference? I guess we'll talk calendaring momentarily.

MR. MANGAN: No, Your Honor.

THE COURT: Defense?

MR. McBRIDE: Nothing from the defense, Your Honor.

THE COURT: All right.

In this case, given the nature of the prosecution, the

sensitive nature of the discovery, the volume of the discovery,

the need to translate those documents, the uniquely onerous

procedural requirements required of the Court and the parties,

and the issues ultimately to be presented in this case, the

Court continues to find that this case presents as unusual and

complex such that it is unreasonable to expect adequate

preparation for pretrial proceedings or for the trial itself

within the time limits established under the Speedy Trial Act.

The Court further finds that the ends of justice served by

granting a continuance in this case outweigh the interests of

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the defendant and the public in a speedy trial. Accordingly,

the Court intends to toll time between today and the new date

we set to reconvene.

Having so ruled, when do you propose that you have another

status conference with me in the courtroom, from the

prosecutor's perspective? Are you talking about your motion

coming in early April? They're going to need a lot of time to

respond.

I find it helpful to touch base with you periodically.

What do you propose? We'll start the bidding. When do you

want to see me? Well, that's probably a bad way to put it, but

when should we have a status conference?

MR. MANGAN: Unless the Court would want to see us

before that CIPA deadline, we were suggesting early April for

that. I realize that part of the process the Court needs to go

through in evaluating the motion is seeing some kind of filing

ex parte from the defense about what their anticipated strategy

or defenses would be. I don't know when they'll be ready to do

that. It may be some time down the road. They may not be able

to tell you when that is until after we file the motion.

So, to me, sometime in mid-April after we've made the

filing might make sense. That's just my opening suggestion.

THE COURT: All right. The bidding has begun.

When do you wish to have an in-person status conference

again, sir?

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MR. McBRIDE: Your Honor, we would ask for 60 days.

The complexity of the case, the issues that may arise, I would

ask that the Court help us stay on track by having relatively

frequent status conferences.

THE COURT: Well, I think you're both on the same

page. It's early February. Early March, early April. So

sometime in April we should convene in person?

MR. McBRIDE: Yes, Your Honor.

THE COURT: Well, while we've all got our calendars,

maybe we could begin the bidding. I'm likely to be busy on the

15th of April, but we could also meet on that day. 

Do you want to throw a suggestion out, please, Ms.

Frankian.

THE LAW CLERK: April 12th at 11:00 AM.

THE COURT: April 12 at 11:00 o'clock. It's a Friday.

Does that work for the government?

MR. MANGAN: It does, Your Honor. Thank you.

THE COURT: And the defense?

MR. McBRIDE: It does, Your Honor.

THE COURT: Very well. 

Well, thank you for making the appearances. It's helpful

to me. And I'll look forward to seeing you down the road.

The Court prepares to recess.

COURTROOM DEPUTY: All rise. This court is now in

recess.

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(Proceedings concluded at 10:58 AM.)

- - - 

C E R T I F I C A T E 

I, Luke T. Lavin, RDR, CRR, the undersigned, certify 

that the foregoing is a correct transcript from the record of 

proceedings in the above-entitled matter. 

 s/Luke T. Lavin 

Luke T. Lavin 

 Official Court Reporter 

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