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 - . 

. Friday, April 12, 2019 

YANJUN XU, . 10:30 AM 

. 

 Defendant. . Cincinnati, Ohio 

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

TRANSCRIPT OF PROCEEDINGS 

BEFORE THE HONORABLE TIMOTHY S. BLACK, JUDGE 

APPEARANCES: 

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 

Taft, Stettinius & Hollister LLP 

 LLP 1717 Dixie Highway 

425 Walnut Street, Suite 1800 Suite 910 

Cincinnati, Ohio 45202-3957 Covington, Kentucky 41011 

FLORIAN MIEDEL, ESQ. 

Miedel & Mysliwiec LLP 

80 Broad Street, Suite 1900 

New York, New York 10004 

Law Clerk: Cristina V. Frankian, Esq. 

Court Reporter: Luke T. Lavin, RDR, CRR 

Potter Stewart U.S. Courthouse 

100 East Fifth Street, Room 103 

Cincinnati, Ohio 45202 

Telephone: (513) 564-7500 

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 chambers at 10:30 AM.)

THE COURT: We're here in chambers on the record on

the criminal docket in the matter of United States of America

versus Xu. We are set for conference. I'd like the attorneys

to enter their appearances.

On behalf of the United States?

MR. MANGAN: Tim Mangan.

MS. GLATFELTER: And Emily Glatfelter.

THE COURT: Good morning to the two of you.

And on behalf of the defendant?

MR. KOHNEN: Your Honor, good morning. Ralph Kohnen.

MS. CORS: Jeanne Cors.

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

MR. MIEDEL: Good morning. Florian Miedel.

THE COURT: Good morning. We have a quorum. My law

clerk's here with me.

We had a letter of April 5 from Mr. Kohnen, and we were

duly scheduled today anyway for a status conference. The

suggestion was that we start on the issues raised in Mr.

Kohnen's letter and then proceed to additional issues.

Do you want to set the stage for our conversation? We read

your letter carefully.

MR. KOHNEN: Yes. Thank you, Your Honor.

And let me start by thanking the Court for agreeing to do

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this, meet with us all in chambers. As I said in the letter,

we're working pretty well with the government in terms of

identifying the issues and trying to craft solutions. I'm not

going to say that we've reached agreement on all, but the lines

of communication are good. So it occurred to us that the smart

thing to do in order to try to keep this from turning into an

adversarial circumstance is maybe go someplace other than the

adversarial, often adversarial courtroom.

The other thing that we would like, with the Court's

permission, is that our proceedings here today be more

conversational. And by that I mean respecting everyone else,

of course, and not interrupting. I think that a real honestto-goodness conversation is probably going to be more -- get us

closer to the goal line.

With that in mind, Judge, one of the things that I want to

let everybody know is, these are somewhat complicated problems

with a lot of moving parts and several parties involved. As a

result, we've sort of divvied up responsibility among our

lawyers who are here in chambers in dealing with these things

and kind of addressing them. It's, frankly, too much for one

person to keep track of. And I say that to the Court because I

think that Ms. Cors is going to weigh in on certain things more

than others, Mr. McBride and Mr. Miedel, et cetera. We expect

that Mr. Mangan will be the person we all point our fingers at

and look for responses to.

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No. I'm kidding, of course. But most of our conversation,

productive conversation, has been with Mr. Mangan, who we

understand to be sort of the lead attorney in this case.

MR. MANGAN: Well, we're co-counsel. 

MR. KOHNEN: Oh, okay. 

MR. MANGAN: And while I was gone last week, I know

Emily was covering for me on a number of things.

MR. KOHNEN: Okay. We haven't yet had the pleasure of

much conversation with Ms. Glatfelter, but we'll look forward

to that.

Anyway, the key thing, I think, to start with is, in the

order of our letter, the access to counsel and discovery that

we and our client are having issues with.

As you know from the letter, our client is more than four

hours away from us, being held in solitary confinement. I

can't do justice to the situation that this poor man finds

himself in as a detainee, having been convicted of nothing.

I'm going to try to show some restraint and not get too

exercised about it, because I don't think that's productive.

We've done a good job of explaining, I think, in the letter to

the Court the situation that he finds himself in.

We have to talk about those conditions, at least under the

rubric of the serious approaching Sixth Amendment concerns that

we have, and hopefully we can, without too much drama, limit it

to that.

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We're not -- I'm going to be quiet in a minute here, Your

Honor, but we're not here just to complain and to point out the

issues. We also would like to suggest some solutions,

collaborative solutions, but I want to be perfectly frank. We

see where we're going to need the Court's help in fashioning

some of these solutions to the problems.

Let's start with the discovery.

THE COURT: Well, let me just bust in for just a

moment --

MR. KOHNEN: Sure.

THE COURT: -- because we're having a conversation,

and we'll hear from everybody.

The Court is not unaware of his situation and how it

arises. The placement in -- 

What is it, Milan?

MR. KOHNEN: Milan (pronouncing).

THE COURT: -- Milan is not mean-spirited generated.

It may be the only option. The government's going to speak to

that. I'm not confident we're going to fix his location.

But go ahead. I'm eager to hear options. We've been

looking at this on our own.

MR. KOHNEN: I appreciate that, Your Honor.

And maybe just for context, so it's out there and, frankly,

so it's on the record, you know, Mr. Xu was arrested on April

1st of 2018, so he's now been incarcerated at the government's

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behest for a year and 11 days. I think today's the 12th. This

is an investigation that began, as we can tell from the

discovery, well before November of 2017. 

And when I say I offer that to the Court for context,

because one of the things that we are going to complain about

is the very slow progress that the government has made in

sharing its evidence, apparently marshaling its evidence,

analyzing its evidence, et cetera. And that's pretty slow for

a guy who finds himself in solitary confinement.

Anyway, with respect to discovery, Jeanne?

MS. CORS: Okay. So there are a couple of issues

we're running into with discovery that we are hoping to have

some help with the Court.

The first issue is his access and ability to review

discovery that is in Mandarin. So we have received -- our

initial discovery that we received, much of it was translated,

and we are bringing that up for him to look at and review with

counsel. That is, I think fair to say, a very, very laborious

process, and it's been very limited based on our accessibility

to our client and the days. 

Right now we are allocated Monday and Tuesday to be able to

visit with him. And the reason for that, from BOP, is that

they need to have us visit him in the general visiting area.

So anytime that area is being used by the general population to

visit with their family or other people who are in solitary

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need to meet with their counsel, we don't have access to our

client.

So right now we're given Monday and Tuesday. And if there

is availability elsewhere in the week, we might be able to

access that, but Monday and Tuesday are our days, and we're

basically limited from about 8:00, 8:30 to maybe 2:00.

And 2:00, 2:30, I think, is when you guys were asked --

MR. KOHNEN: On Monday.

MS. CORS: -- on Monday.

So we now have a new hard drive. It has been reproduced to

us with some software so that we can review it. We received

that yesterday.

What we are trying to do is to get to our client all this

discovery that's in Mandarin on a computer that he can spend

time in his cell, wherever, reviewing and helping us see what

is there. That's critically important, because as I said, most

of it is in Mandarin. We're not going to be able to review

this. It's also generally almost all his communications, his

material, so he really is the ideal person.

We have been trying to work with BOP on this. There are a

couple issues that come up immediately. One, most of the new

discovery has been characterized under the protective order as

sensitive. That's not material, under the protective order, he

is allowed to maintain in his possession.

We would like to discuss having that recharacterized as

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general so that we would be able to leave it in his possession

to review.

Two, based on both the need for the software and the volume

of material, we think this is going to need to be on a laptop

that's a newer model laptop that he can efficiently use and

look through. BOP has identified to us that they have a

laptop -- or, I mean, a computer that he could use. They've

also informed us that it is old and is not a new computer.

So we are looking for help from the Court to be able to get

all of the discovery onto a computer, preferably a laptop, that

we can get to him at Milan that he can have, you know, daily

access to. I think the plan would be, as I understand it from

BOP, whatever computer would be used would be stored in the

assistant to the warden's office, brought to our client in his

cell, when he is done, brought back. And I think we would be

fine with that process in terms of where the computer is. 

But we do need to get the discovery to him. I mean, he

does have a lot of time right now, and he can be very, very

effective and helpful in helping us help him.

THE COURT: It sounds like you're close to that

occurring.

MS. CORS: The computer's going to be the big issue,

Judge, and the issue of how we deal with the protective order

and the characterization. But, you know, BOP, just the

bureaucratic process, getting a computer in there that's not

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theirs, we haven't made any headway on that. And that's really

where we're looking for some help. And maybe to break through

that, to be whether they source the computer and we pay for it,

whether we source the computer, load everything on and bring it

up and let them inspect it. That's where the difficulty is

right now.

THE COURT: Okay.

MR. KOHNEN: Judge, just to follow up, this is a

computer that will not have any Internet access whatsoever.

Also, we're close, as you've indicated, but maybe not as

close as you may think, and let me explain.

We finally have this 400 gigabytes of material that is

readable by us with our equipment. That in and of itself took

months, as you'll probably recall. We got that yesterday

afternoon.

Whether it can be transferred to another hard drive, a

laptop's hard drive, with the software that makes it readable

on that new laptop is a question. Whether our client is going

to be able to mark it or do something as he goes through it to

identify what's important to us is going to take yet some more

software or technology. I'm not a techie.

Our IT folks are working to find solutions to that now. We

just don't know how long it's going to take or whether we're

going to have to revert back to this 80-some-thousand-dollar

software that we want to -- I may be wrong about the price, but

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rather expensive software that we wanted to avoid purchasing

from the get-go.

MR. MIEDEL: Just, Your Honor, to be clear, the

discovery that we're talking about that we would like him to

review consists of data that was downloaded from his iCloud

account. It's his stuff from his materials. 

And so that's one of the reasons we wanted to discuss

reclassifying this material from sensitive to general, because,

obviously, he is in the best position to know what's there and

to go through it. And it's his own stuff, so it's not

sensitive in that sense.

MR. McBRIDE: I would add, if I may, Your Honor, also

it's very much the same in that respect as the original general

category of discovery that we were provided in the very first

production.

THE COURT: Well, we'll hear from the government in

that regard. I'm not confident that that's an issue I'm going

to be able to resolve today. It may require briefing and in

camera review and all of that. But we're going to have a

conversation today. I now understand the issue that presents.

So you were talking about discovery. What else did you

want to talk about before we permit the government to converse?

MS. CORS: The only other issue there, we have some

other conditions I think we'd like to talk about, but sticking

with discovery, you know, the ability of counsel to have more

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time to work through the discovery with our client.

THE COURT: More time than two days at the

institution?

MS. CORS: Correct.

THE COURT: Okay.

MS. CORS: I mean, here's part of the problem we run

into. To have an effective discussion about the discovery

requires a translator there, an interpreter.

THE COURT: That's going to be true anywhere.

MS. CORS: Correct. I mention that only because it

makes this process of us going through the discovery with our

client take so much longer. You know, we're doubling our time

to go through something that would -- we would go through with

someone who speaks English as a native language. So, you know,

we're looking to have a discussion as to how we might be able

to get more time with our client to review materials.

THE COURT: Very well. Should we pause now and have

the government talk about discovery?

MR. KOHNEN: Your Honor, I think that's a good idea.

THE COURT: You've completed your trial?

MR. MANGAN: We have. I'm ready to dive back into

this one.

THE COURT: Welcome.

MR. MANGAN: So with respect to the main topics that

we've been talking about back and forth, we originally provided

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on a hard drive, just to kind of back up a little bit, and it

had what's called the extraction files. So that is sort of the

original forensic image that's made by the forensic folks over

at FBI without them doing an analysis or anything. It's just,

you know, "Here is exactly what we have."

I realize, you know, as we've talked back and forth, they

consulted with some individuals they said they looked to hire

as, I believe, a forensic consultant to more or less put this

into a report and analyze it through our tools. It would cost,

you know, some degree of money there.

So what we did, we went back to the FBI and said, "All

right. Using your tools, you know, can we put this into a

different format to give that over to them so that it's in a

readable format," sort of on a -- what I would consider a sort

of lay people's computers without the normal tools, and they

were able to do that. 

We just got that to them this week. It has, more or less,

a reader file on it. So you click on the reader and then,

through that software, you can go through the report. It's

essentially sort of a working copy or a working version of

their analytical report.

One of the things we clarified with them, and I think this

was fine, was we wanted to make sure that, you know, look, the

FBI and we have an obligation to, you know, review material

that's produced under search warrant to make sure it complies

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with Attachment B. So typically they don't put it in those

final reports until they have, you know, whittled it down to

what is relevant under Attachment B.

So we've made clear to them, look, we're giving you the --

just like we did the image -- we're giving you the whole thing,

sort of un-- you know, in its native form, and we ask that they

assure us that they're not going to come back and complain that

we didn't do the analysis to narrow it down, and they said that

was fine. So we turned over the disk yesterday. That's my

understanding.

Correct?

MR. McBRIDE: Correct.

MR. KOHNEN: May I interrupt. What's Attachment B?

MR. MANGAN: For a search warrant.

MS. GLATFELTER: The execution of the search warrant,

what we have to subpoena for.

MR. KOHNEN: The return? Oh, the items to be searched

and seized, okay. Sorry.

MR. MANGAN: In any event, I think we've worked

through that issue. Some of it was just getting it in the

right format and getting it over to them. It took some time,

but I think we're at least at a better stage than we were the

last time we talked. Because I know I could open up my

computer, I think you're able to do the same, and you can at

least start working through the data.

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There is a lot there. We don't disagree there's a lot to

go through. It is a -- these are his devices. Some of them

are images of the physical devices that were seized in Belgium.

But the other ones, which are much larger, are the iCloud data,

and those consist of device backups from various devices,

different phones, including an iPad as well.

And those are his own -- you know, that is his own data,

his own information, but it's sizeable. People aren't always,

you know, aware of how much they have on their devices and how

much has been backed up.

MR. KOHNEN: They rarely are.

MR. MANGAN: It is a mix of, you know, some personal

things and work-related things, you know, we would suggest.

And so that's why it was designated as sensitive on our end.

The initial materials that went out in the first tier

related specifically to this case and the exchanges that were

done back and forth between the individual here and the

defendant.

A lot of these materials get into his activities beyond

this case, perhaps with similar people in the U.S. or similar

people around the world. It involves and has communications

with other members of the MSS organization, so it is broader.

Some of those work activities, you know, implicate other

companies, victim companies, other activities around the world.

And so that's why we viewed it as sensitive, just so the Court

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understands our viewpoint on that.

It does include, we realize, you know, some of his personal

data as well. It's just all commingled.

So now that it's turned over, I think we're in agreement on

a number of these things. He needs time to look at these.

They are in almost entirely Mandarin. And I guess that he has

time to review it. He has the language skills, you know, to

make sense of it in a way that, perhaps, a defense team, you

know, would take more time and resources.

We've spoken with -- we've all talked through the same

person at BOP, who has been very helpful, I think.

MR. KOHNEN: We'll note our disagreement.

THE COURT: Mr. Coates, perhaps, or something like

that?

MR. MANGAN: Clore.

MR. KOHNEN: Clore.

MR. MANGAN: Well, he says fine things about you,

Ralph. I won't tell him you disagree.

MR. KOHNEN: No, he's a nice guy.

MR. MANGAN: My understanding is they are willing to

do essentially an accommodation that would allow a computer

to -- like a roll-in, we're using the term "roll-in," so it's

not just sitting there 24 hours a day but they would give him

access within his cell as opposed to having to reserve time at

the library.

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Part of the issue they have is, they have this library for

this special housing unit, and everybody -- they all want to

review their discovery because it gets them out of their cell.

They've got terrorists up there who just want to go and watch

their discovery because it's jihadist videos, and so they've

got to accommodate these things.

We think it would work to give him sort of his own computer

that they can roll in, you know, and pull back out. And then,

you know, the BOP would keep custody of that and it would be

dedicated to his use.

My understanding from them is they would at least first

like to see if one their computers would work for this before

they entertain the idea of bringing in an outside computer. He

said they have adjusted to things before where they've had to

get updated computers. They can handle that.

I think we just got the disk to you this week, so I think

it would be prudent to at least try going that route first, let

the BOP see if they can make it work on one of their current

computers that they're comfortable with and address it that

way.

With respect to the classification, you know, I already

explained why we want it designated as sensitive. I don't have

the language right in front of me, but it's essentially that he

does not maintain custody of these things. So we don't have

a -- he's still allowed to review them.

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We don't have a problem under the current classification of

sensitive of doing this roll-in/roll-out and the BOP maintains

custody of the disks and the computers. We think that would --

we think. At least it's our position that that would still be

in compliance with that designation level.

So those are kind of the main -- you know, our main

responses to the core issue, which I think is his ability to

review those materials.

As for the visitation dates, that's kind of out of our

purview a little bit and our control. My understanding is the

same, that you have Monday and Tuesday to go up there. I

believe they can do some Wednesdays in that Mr. Clore has said,

look, he can work with them on some additional time, but what

helps him the best is a lot of advance notice, you know, a

schedule, and kind of a schedule going forward or at least

that's a little further in advance than calling on Friday and

saying "We're coming Monday" would be helpful. So that's my

understanding. But that's kind of between the BOP. That's not

really something we can help facilitate, I don't think.

But, you know, our core concern is theirs in terms of we

understand there's a lot of discovery. He needs to get it,

time to review. I think this would -- I think we're working

towards a solution that would at least allow him to do that.

Obviously, we need to find a computer that will work, and

hopefully that's enough time for him to do this. But I think

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we're working towards a solution.

Obviously, we're just now looking at these forensic files

this week. You know, I'm getting them in that format for the

first time. Obviously, they're Mandarin, so I can't make much

more sense out of it than they can, but you can at least start

to get the feel for how to work through the software, what you

can play. It will need to have speakers, because there are

audio files on there. There are videos, things of that nature.

But our suggestion would be we try to work through this

next step with the BOP about getting the roll-in laptop,

maintaining the designation, and seeing if we can make that

work.

THE COURT: Well --

MR. MANGAN: Do you have anything else, Emily? 

I'm sorry.

MS. GLATFELTER: We've talked a lot about our feelings

on the matter, the Department of Justice and the defense, and I

think one voice is BOP and some of the information that Dan

Clore provided to us. And some of the regulations that they

have and the reason we can't just take a computer in there

right now and give it to the defendant is the safety and

security of the institution. 

And so the people that they're maintaining as pretrial

detainees in that unit are people that are security risks. And

every difference you have between these individuals is a source

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of contention, and the ability of -- or it's important to

maintain the security of that unit. 

And so, for example, I know that perhaps defense would like

to have a computer or laptop that he has in his cell 24/7.

That's not a possibility, from BOP's perspective, in terms of

the inequity between the people in the unit and the safety and

security. And not only Dan, Dan understands it, but the people

under him. And it's the ability to explain it to the guards

who are there every day, why is this person being treated so

much differently than everyone else in this unit.

And so those are some of the interests that Dan is trying

to balance. I think, as discussed recently, the fentanyl, sort

of, explosion going into the institution has changed

dramatically how they deal with incoming mail, how they deal

with publications coming in. Anything from outside the BOP

system getting into the prison is a security risk for them, and

so they're trying as hard as they can to work through this, but

they also have real concerns on their end as well.

And so I just wanted to express that to the Court, that,

you know, when we get these letters or when we find out -- we

call BOP and talk to them, talk them through this and

understand like why we can do this or why we can't and what

their concerns are as well.

THE COURT: Well, I would pause at this point and

express my visceral reaction that the government is working

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very hard to be responsive to the issues. The Court has spoken

with BOP, and BOP has valid policies and procedures and

interests that you reference correctly. But it sounded to me

like you're making enormous progress, and I would ask at this

point if there -- the laptop works out and he's able to have

his laptop in his cell during waking hours and review it and

then the laptop gets rolled out, have we not addressed as best

we can the sensitive designations? He's able to see it. He

just can't keep it in his possession.

MS. CORS: If we can have agreement with the

government and the Court that he can have access to these

materials during the day --

THE COURT: Right.

MS. CORS: -- and have the computer wheeled back out,

certainly from my perspective that solves the problem of our

client reviewing the discovery.

Where I think we may have still a disagreement is there

isn't a laptop at BOP. In talking with Dan Clore, who, you

know, is trying to work with us but within a bureaucratic

system that it moves very, very slowly, the computer they have

identified is not a newer computer. I don't even believe it

can read a Blu-ray disk, which is what some of this discovery

is on.

We recognize the security issues. We have thought through

those security issues, and we have some suggestions as to how

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we might break through and get our guy this discovery soon.

In terms of a laptop, if the Bureau of Prisons is not

comfortable with us loading the laptop and providing it to

them, it seems to us a reasonable option is to have us pay for

the laptop and have the Bureau of Prisons source the laptop

themselves from Milan, buy it on Amazon, do whatever, you know,

they want to do, which allows them to know what computer is

coming into the facility.

What I am concerned about is we have been trying to work

through this bureaucratic system at Milan, and it has taken a

very, very long time. I have no reason to believe at this

point that the computer they have is going to work. I am

concerned that we're going to give it another month to work

through that and be right back here asking for the same thing.

So if there is a way that the Bureau of Prisons could be

comfortable getting a computer in there now, I think that

benefits all of us, and letting our client look at this.

The other point I would mention is, you know, yes, they

have regulations. I think we'd all agree our client is a very

unique pretrial detainee at Milan, and so trying to apply the

same rules and regulations to Mr. Xu as to others might not

always be appropriate and may require some modification so that

we can get him the discovery he needs to look at.

THE COURT: What do you make of the notion that we

shouldn't spin our wheels on the computer the BOP currently has

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but pursue permission from them that the defense pays for a

computer that Milan buys and just get on with it? What do you

make of that?

MR. MANGAN: I think there's a reasonable plan A and

plan B. We only got the disks in the current format to them

this week, so I understand you haven't had a chance to even

take them up to Milan and have them try it out. To me, it at

least seems worth, on the next trip, to provide them to Mr.

Clore and say, "What can you do," you know, "What can you do

with this?" And then if they can't deliver, then I think, you

know, it's a legitimate question can we get this moving with a

differently-sourced laptop.

He hasn't been given the opportunity yet just because we

only got that to them this week. So, to me, it seems like

there's a logical step one and step two. I understand they

want to do that quickly. I have no objection to that. To me,

this is a logistics issue. Let's see if they can make it work,

and if they don't, then there has to be an alternative.

We are in agreement to Ms. Cors' first point that if they

can do the roll-in and he can have access during the day, we

have no objection to it, with this discovery under the

sensitive designation.

THE COURT: Well --

MR. KOHNEN: Judge, may I?

THE COURT: Yes.

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MR. KOHNEN: Mr. Clore has essentially already told us

that their equipment will not work. Rather than spend eight

and a half hours round trip running the disk up there to test

it, I would respectfully submit that we can go forward on what

Mr. Clore has already told us. But if we can't, if we want

assurance, I'm confident that a simple phone call to Mr. Clore

or Milan's BOP folks will confirm what I have just represented

to the Court and their equipment is incapable.

The other thing is, a laptop is crucial because of the

other, I'll call them, logistics issues that we've discussed

here: access to the computer room, et cetera.

We need to move forward. He needs a laptop. The U.S.

Attorney's office is part of the Department of Justice. The

Bureau of Prisons is part of the Department of Justice. The

Federal Bureau of Investigation is part of the Department of

Justice. Each of those three organizations can move with

lightning speed when they want to.

The FBI's computer forensics capabilities, if only through

this case, have been demonstrated to be remarkable, cutting

edge. They could analyze any laptop that we provided to them,

that the U.S. Attorney's office provided to them, or that the

BOP provided to them to make sure it was safe to go forward as

we're suggesting.

You know, I don't want to get too crazy here, but there

comes a point where Mr. Xu's rights are going to start to trump

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all of these other concerns, all these other roadblocks, from

our perspective, that are popping up due to inaction,

bureaucracy and/or foot-dragging, and we want to smooth those

out and move forward.

THE COURT: Well, I think we need to inquire

immediately of the BOP as to whether this roll-in laptop is

manageable with a laptop other than one they have currently in

their possession. And is that something the Court should

inquire on or the government? Do you have a sense?

THE LAW CLERK: I can call him today and ask whether

he thinks there's any chance that the laptop will work.

Ultimately, I think the disk needs to go up there whether it's

to get the material onto the BOP's laptop or one that is

purchased.

So I don't think that, you know, ultimately taking the disk

up there is a wasted trip, necessarily. And I would assume

that if he thinks that, you know, potentially his laptop, the

BOP's laptop can work, maybe you can take the disk up on your

next trip up there, and then if it doesn't work, maybe just

leave it there, if that's an option.

And if we know in advance that -- or if we tell them in

advance, look, they're coming up to test this disk. If it

works on the laptop, great. If not, can you have one ordered

right away and we'll leave the disk with you. And then that

way -- so it's not, you know, take the disk up there, it

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doesn't work, bring it back, call him, order the laptop, take

the disk. You know what I mean. It would be a little more

seamless.

But, of course, if he says, no, there's just no way this is

going to work, it's not even worth trying, then at that point

we can figure out how to get another laptop. But if he thinks

there's a chance, take the disk up, we'll tell him when to

expect that you would arrive with it, he'll have the laptop

ready, test it out. If that doesn't work, we'll ask him to

just be ready to order a new one, if that's something we can

accommodate. Would that work?

MR. KOHNEN: I don't think they even have any laptops

up there. I think they're all antiquated desktops, but I could

be wrong.

MR. McBRIDE: That they roll in.

THE LAW CLERK: Oh, okay. Well, we're dealing with a

desktop, I guess.

THE COURT: Well, is there an objection to the Court

communicating with this gentleman at the BOP today to inquire

as to their position on options?

MR. MANGAN: That's fine with us, Your Honor.

MR. KOHNEN: We encourage it. Thank you, Judge.

THE COURT: All right.

MR. MANGAN: Do you already have his information?

THE LAW CLERK: I do.

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MS. CORS: If I could just mention --

THE COURT: Yes.

MS. CORS: -- though, a couple of the issues I think

that are relevant in terms of this computer access. One, some

of this is on a Blu-ray, so there's a question of whether that

computer can access a Blu-ray disk.

Two, there is this reading software that is on -- that

needs to be used to access the material. So it's also a

question of -- I don't know if they're able to run the name of

that software, I don't know what the name of it is, but run

that by BOP to see if this computer can actually run the

software that you need to use to review this material.

And there's a lot of data, so I think the speed with which

it's going to load in and allow anyone to look at it is going

to be an issue.

THE COURT: So those are three of the issues.

MR. KOHNEN: Can I make a suggestion? We've got our

IT people trying to identify solutions for us. What I would

suggest is that we get back to them as soon as we can after

we've met here today and come up with a list, probably a more

complete list than Ms. Cors just laid out, so that we can arm

Ms. Frankian with those questions to ask of Mr. Clore before

she reaches out to him, if that's all right.

THE LAW CLERK: That's fine.

MR. MIEDEL: Your Honor, also I think it would be

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helpful for the Court to communicate with the BOP just so that

the BOP, Mr. Clore in particular, understands just how

important it is for this access. 

Because it concerns me a little bit about what Ms.

Glatfelter reported about her conversation with Mr. Clore,

about the sense of inequality among inmates or the fact that

guards may feel that he's getting special treatment and he

shouldn't.

I think, as we all know, it's very common for different

pretrial detainees to have different access to discovery. At

least in the district where I practice, it's very common that

defendants who have large amounts of, voluminous amounts of

discovery on computers will have access to a laptop, whereas

other detainees may not because their cases don't require it.

So I think it's useful for the Court to sort of suggest the

Court's interest in making sure that Mr. Xu does, in fact, have

access to the discovery during the daylight hours every day so

that that doesn't get undermined by people working at the BOP.

THE COURT: Well, with respect, I would like to be

involved in Ms. Frankian's call to the BOP so they know I'm on

the line and am engaged in it and this is of concern.

MR. KOHNEN: I think that will accomplish that.

THE COURT: But I want you to understand that I'm

going to be responsive to reasonable BOP concerns.

MR. MIEDEL: Sure.

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THE COURT: Where do you practice, New York?

MR. MIEDEL: Yeah.

(Laughter.)

THE COURT: Very well.

MR. McBRIDE: Your Honor, may I raise one more

concern?

THE COURT: Yes.

MR. McBRIDE: In your conversation with the BOP, I

would ask you to consider, is I'm very concerned about the

information itself because of our protective order. I was a

national security prosecutor, like Mr. Mangan is, for a long

time, and I know full well that not only do things leak into

prisons, they leak out of prisons, and I'm not disparaging

anybody. Mr. Clore has been great to work with. 

But in these procedures that we put forth, if the Court

feels that an appropriate approach is to have the BOP try the

software and so on, and try the data, I'd ask that security of

that data and that information be paramount.

One of the things we were thinking of is perhaps once the

data is set on a computer, whether it's a laptop we provide or

the computer the government provides, that it be password

protected so that perhaps Mr. Xu is really the only one, and

defense counsel, with access to that information.

THE COURT: I respect your experience.

MR. McBRIDE: Thank you, sir.

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MR. KOHNEN: Mr. Clore, however, has already -- and I

think this is maybe what Mr. McBride's getting at. Mr. Clore

has already told us that nothing comes in, no electronic media

come into that facility that are password protected. And so we

may be --

THE COURT: Because?

MR. KOHNEN: I'm not sure.

THE COURT: Okay.

MS. CORS: What he indicated to me is it's just a

security measure, that in terms of their policy, they need to

be able to look at and review anything that's going into that

facility. 

So, you know, they can't take it on faith that we're giving

a disk that's password protected that only Mr. Xu can look at,

that it contains discovery and nothing else, so --

THE COURT: Well, that seems to make some sense.

What do you make of that, sir?

MR. McBRIDE: Your Honor, it does make some sense for

the incoming information, Your Honor, setting it on a computer,

verifying whether it is what it is. But once it's set, however

we decide to proceed, I think an additional precaution of

having it then password protected, not encrypted but password

protected so that Mr. Xu has access to it -- he's obviously not

going to be putting anything else on it -- so that Mr. Xu,

then, and the defense team are the ones that have access to it.

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Make it as protected as it can be under the protective order,

Your Honor.

THE COURT: But the prison officials need to see

what's coming in and they need to be able to see what's on a

laptop being reviewed by an inmate, so they're certain it's

discovery and not building specifications for the institution.

MR. KOHNEN: Judge --

MR. MANGAN: If I could just -- I think there's two

things. One is, it's a question of what you're password

protecting. The CD itself or a disk, you know, can have its

own password protection. That's typical in discovery. And

when it is produced into a prison, BOP knows that password, you

know, so that they can look at it.

I think -- tell me if I'm wrong -- what they're talking

about is they want to password protect the computer so that Mr.

Xu would only have that password but not the BOP. I'm trying

to understand if there's two different conversations going on

here.

MR. McBRIDE: Well, I think either of those solutions

is fine. And I think that perhaps if Mr. Clore had access to

it, because he is really --

MR. KOHNEN: Right.

MR. McBRIDE: -- the point of contact for us. He

could have the password and look at it with Mr. Xu to make sure

it is what it is and then let Mr. Xu go ahead and do -- whether

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they do a periodic inspection, Your Honor. I think any of

those things are acceptable, and all I'm asking is the Court

consider ways to minimize that risk.

THE COURT: I understand.

MR. KOHNEN: And what we may want to do along those

lines, Your Honor -- again, this is probably so much i-dotting

and t-crossing -- is consider at least whether there is a need

for another addendum to the protective order just to cover this

stuff. I think everybody's going to recognize, you know, where

the threshold would be that we do need to do that and suggest

that to the Court. We're going to keep that in our peripheral

vision. At the same time, I don't want you to be surprised if

we come up with that.

But again, at least for the context and perspective, to

give you an idea of how tightly things are controlled around

Mr. Xu, how constrained -- sometimes restrained, frankly -- he

is, when we have a telephone conversation with him, a guard

insists on staying in the room with him. I'm not sure where

they think he would flee to, or perhaps they think we might

share plans for the prison via phone. But that's how tightly

the screws are on him.

THE COURT: And all persons at the institution.

MR. KOHNEN: No, that's not true.

THE COURT: Okay.

MR. KOHNEN: But he and the other fellows at issue.

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THE COURT: Right.

MR. KOHNEN: I think there are only, at any given

time, two or three, aren't there?

MS. CORS: Uh-huh.

MR. KOHNEN: Anyway, just, again, for perspective, I

guess what I'm maybe trying to say is, even this is going to be

a big ask of BOP.

THE COURT: Very well. The Court's prepared to make

the ask.

THE LAW CLERK: Can I just ask one question?

So one of the restrictions on sensitive discovery is that

defense counsel can't disseminate that material to anyone other

than the members of the defense team. So I just want to make

sure that taking the disk and giving it to the BOP is not going

to cause any concern. I mean, it's --

MR. MANGAN: Right. 

THE LAW CLERK: We've all agreed.

MR. MANGAN: Right. We can sort of include the BOP as

sort of a party within how we define things. But with respect

to all of this, we don't have any concerns with the BOP having

custody of things.

THE COURT: Well, we probably ought to have that

memorialized in an addendum.

MR. MANGAN: And we're fine with that.

THE COURT: You all will work on that.

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Well, I'm very pleased with the progress we're making.

What were some of the other things you wished to converse

about?

THE LAW CLERK: Judge, on the --

MS. CORS: We have two issues, Judge, and these aren't

discovery per se, but they really do go to our client's mental

state and his ability to help us. We have been trying to work

through these issues with BOP and have not made much progress.

The first issue is letters from the family. As of end of

January, our client has yet to receive a single letter that has

been sent from his family. This is not from lack of trying to

work with BOP on this issue.

So to step back -- and this ties into his -- the lack of

reading materials in Mandarin. There has been an ongoing issue

about getting him anything to read in Mandarin. We have yet to

break through that. I understand that Mr. Clore has decided he

is going to order some books in Mandarin for Mr. Xu, so that

issue might be solved. 

In the process, as I understand it, there was a discussion

about letting the family include some third-party materials in

his letters for him to read something, which they did, which

were voluminous, 20, 30 pages with writing.

That then became a holdup at BOP with respect to

translation. We offered to translate the materials ourselves

and send in both the Mandarin version and the translated, which

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he was receptive to. He then was blocked from people up the

chain in doing that. So materials ended up sitting on his

desk, all these letters untranslated, not provided.

We talked to him, we talked to the family and said, look,

start sending him shorter letters that aren't going to require

delays in translation, and they have been doing that. Those

letters still have not gotten to him.

Again, you know, we have proposed one solution, which is us

translating them. If that's not acceptable, you know, we're

looking for some help to break this backlog, to get this guy

letters from his family. It's been a long time, and it's

becoming a significant issue and a real concern on his part.

He only has two 15-minute calls with family a week. These

letters are pretty important.

THE COURT: The Court would be inclined to inquire

about that.

MS. CORS: Thank you, Your Honor.

MR. KOHNEN: Thank you, Judge. 

And again, just for context purposes, this is a man in 2019

who doesn't have access to the Internet, he doesn't have access

to e-mail, he doesn't have access to the television, he doesn't

have access to radio. He doesn't even have access to

literature, however broadly defined, in even English, let alone

Mandarin. He's literally wasting away in a cell. 

And I don't want to overdramatize it, but with the Court's

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permission, I'll send you a cite to a study that was done by

Yale University Law School about circumstances, about what

happens to detainees who are held in conditions like this, and

it's not good.

That's one of our primary concerns about -- you know, when

I say we're getting close to a Sixth Amendment problem here, it

really is so.

THE COURT: My understanding on the books in Mandarin

was that the policy was that it had to come directly from the

publisher. And maybe we're now making progress on that and

they're threatening to order something directly from the

publisher?

MS. CORS: Correct. So we -- from the beginning, we

had been informed that we could not bring the books in, and

that was fine. So then the question became could Milan source

those books directly from wherever, the publisher. I think

Amazon's become an issue in terms of security. And we said

that was fine. We would pay for that.

Kind of back to the bureaucracy. The concern then was,

well, if we get him a book today and he reads it this week and

he wants another book next week, are we now in the business of

ordering books? And that was the initial block on obtaining

reading materials in Mandarin.

I think we've made progress, but as of Monday he still

didn't have a book. So I think we would still ask the Court

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when, you know, you speak with Mr. Clore to raise that issue

and make sure that we are making progress to get him some

materials.

THE COURT: Fair enough. And on the issue of letters

from family, that gets held up because the institution has to

translate them?

MS. CORS: Yeah. And, you know, I can't say we fully

understand this. So the institution is sending them out for

translation, which I understand, but they're referring to an

extremely high cost to do so. Again, we're not sure why these

letters can't be reviewed -- first of all, why do they have to

be translated? For national security reasons, if they have to

be reviewed, can they be reviewed and not translated to speed

up the process? 

If that's not possible, aren't there translators affiliated

with the Department of Justice who could step in to do this job

without some high cost to Bureau of Prisons? I've never

understood that part of it.

MR. KOHNEN: And we've done a little research on that,

Your Honor, if you're interested in hearing about it. But the

Department of Justice operates an organization known as the

National Virtual Translation Center. They have over 1400

linguists employed there capable of translating 121 different

languages, including all of the Chinese dialects.

In addition, the FBI itself has 1600 foreign language, at

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least, proficient special agents. So this is not something

that can't be done. We're at a loss for why it's not being

done.

THE COURT: And the defense is not interested in

paying for the translation of the letters from the families to

expedite delivery?

MR. KOHNEN: Well, we offered to with our own

translator. I don't know what the --

THE COURT: I see.

MR. KOHNEN: She, I will tell you, is a far cry less

expensive than what Mr. Clore is telling us his translators

cost.

MS. CORS: Yeah. What Mr. Clore told us is even if we

were to provide the letters with the translation into English,

which we had talked about and he was amenable to, when he ran

that up the chain he was told that, irrespective of whether we

provide a translation, the policy is still going to require

that they obtain their own translation.

THE COURT: And you're not eager to pay for that?

MS. CORS: I wasn't even, first of all, aware that

that could be an option. I think, you know, we would suggest

that we would prefer not to pay for that to allow our client to

have letters from home. I mean, he's already incurring a lot

of expense to get us up there.

MR. KOHNEN: I think it's the least the Department of

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Justice can do.

THE COURT: Did you want to be heard on the issue that

we're discussing here?

MR. MANGAN: We haven't been privy to a lot of these

discussions, so I -- and since the Court is already planning to

speak with Mr. Clore, I think I'd only muddy the waters. I

think you might be better off going straight to the horse's

mouth.

THE COURT: Do you wish that I refer to him as such?

(Laughter.)

MR. MANGAN: Depends which end he prefers.

THE COURT: Thank you, Mr. Mangan.

You had a question, perhaps?

THE LAW CLERK: The Monday and Tuesday visits, is it

easier to have -- so if we discuss possibly having more days

set aside, is it easier to have full days, so like two days but

you can stay there from, you know, 7:00 AM to 5:00 PM, or is

it, you know, just a few hours every day, or what would be more

helpful?

MR. McBRIDE: My suggestion, since I'm the person who

is actually reviewing the discovery with Mr. Xu, is -- I have a

couple of issues I think might interfere with longer days.

First, the BOP does have limited personnel. They also have a

routine. They have inmates and detainees that must be fed.

Quite frankly, after four hours of going over the

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information -- 

Which are pretty intense, because we have to have the

interpreter there. And I'm talking now about the English

translations. 

-- I think four hours, five hours is probably the max. in

any one session you can spend with him. If we're to have two

four-hour blocks, I don't know there's any facility for us to

eat. We'd have to leave, and then we have to come back through

the security procedures, which themselves take at least a half

an hour to access a day, and it requires the BOP to have an

individual there at the desk checking our credentials, putting

us through the scanner, putting all the materials through.

My suggestion is if we could get more four- to five-hour

blocks in succession, maybe Monday to Wednesday or even

Thursday, that would be easier for us to go up, spend four or

five days there with the interpreter, three or four days with

the interpreter -- we always go up on Sunday evening -- and

then being able to do a large block of discovery day after day

after day, and then maybe returning the next week or the week

after as the logistics permit.

THE LAW CLERK: Okay.

THE COURT: Well, we have a sense for the things we

should discuss with the BOP official today.

Was there more on your conversation plate, Mr. Kohnen?

MR. KOHNEN: We probably could --

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THE COURT: Could talk all day?

MR. KOHNEN: -- talk for the rest of the day on some

of the issues, Your Honor. But what I will tell you is -- what

I'll stop at is we are getting tremendous pressure from Mr. Xu,

from his family, and at least at this point murmurings, which

will turn into drumbeats, from the Chinese consulate to get

this case tried. Mr. Xu's family -- I'm not going to comment

about Mr. Xu's communications with us on the subject -- is

borderline apoplectic when they heard an estimate that this

case likely wouldn't be tried until a year from now.

We want to do everything we can to get this case moving and

to get this case set for trial. There was a little debate

among the defense lawyers this morning when we met as to

whether or not we should ask the Court for a trial date today.

I don't remember what the consensus was, but I do want to just

at least go that far to let you know how serious we are about

that.

We, as Ms. Cors indicated, have a plan to streamline the

review of this absolutely massive amount of material that the

government has dropped on us. We're done whining about it.

This is the last, if things go as planned. And we've got a

plan for Mr. Xu to triage it and work with his own data and

identify where the many needles are in these massive haystacks. 

But we're going to start a drumbeat of our own pretty soon

to get a trial date set that everybody should meet for more

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reasons than I have to say, all of which I'm sure the Court can

imagine.

Anything else, guys?

THE COURT: Well, in that regard, what happens next in

this litigation? What is the path to trial? What needs to

occur?

MR. KOHNEN: We've got plans for pretrial motions.

We've refrained from filing them because of the complicated

case findings and the ends of justice findings, realizing that

we're all really still just trying to get our feet under us.

THE COURT: Right.

MR. KOHNEN: We don't anticipate that we're going to

bombard the government and the Court with a flurry of motions.

We are going to ask for Brady and Jencks material early,

because we think it's critically important, particularly if, as

part of the CIPA process, the Court and the government are

going to expect us to make some semblance of a defense or

theories of defense as part of that process.

We're going to be asking the Court for permission to send

out Rule 17 subpoenas. We're going to probably file some

motions for orders in limine, probably file a motion for a gag

order -- the United States Attorney has referred in media to

our client as a spy; we can't have that anymore -- and things

of that nature.

Anything else I'm missing, Bob?

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MR. McBRIDE: No, sir.

MR. KOHNEN: We're going to be asking for notice of

404(b) evidence as soon as possible so that we can address that

as well.

For the Court's information, and I think as we put in the

letter, nothing we've seen yet in the discovery was obtained

through any method other than traditional law enforcement

tools. The CIPA process, the very small amount that I expect

we'll be exposed to, may change that, but at this point we

don't have reason to believe that.

So it's not as complicated as we could convince ourselves

it is.

THE COURT: What does the government see as the way

forward to trial?

MR. MANGAN: Obviously, there's, it sounds like, a

series of motions that we will need to address at some point.

THE COURT: Right.

MR. MANGAN: There's -- you know, we've just filed the

CIPA 4 filing. The Court needs whatever time the Court decides

it needs to review that. And then I believe as part of that

process you need, outside of our view, you know, their

statement of what they have as anticipated defenses. I don't

know how long the defense needs to get that to you. But I

think on sort of the core non-classified discovery, I think the

issues have been more about these logistics that we already

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talked about as opposed to getting ready for trial.

The core part of it, in terms of what you see in the

Indictment, was produced to them very early on in the first

tier of discovery. So what we're talking about now is sort of

these other issues, sort of, that start broadening his

activities.

We think that part of it is addressing the CIPA portion of

it, but then secondarily setting up whatever motion deadlines

need to be set, whether there's going to be experts or not. I

don't know if that was one of the issues that Ralph raised, but

certainly if either side is going to be doing that, we need to

put a deadline in place for that, and then we'd be ready for a

trial.

But, to me, that's how we see it. There's a CIPA issue,

and then we've got these other motion deadlines or expert

deadlines that would need to be put in place.

THE COURT: And when would you expect to be able to

present to the Court your CIPA statement, which is nature of

the defense or something?

MR. KOHNEN: Yeah.

THE COURT: You're the one who is eager to move this

along.

MR. KOHNEN: Right. And we've been discussing that

internally.

THE COURT: I'm sure.

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MR. KOHNEN: I'm not really in a position to say that

we've come up with anything.

THE COURT: Okay.

MR. KOHNEN: But I will tell you that probably any

articulation of our theories of defense are going to be pretty

broad. I'm tempted to say our theory of defense is going to be

that the government is going to fail to meet their burden of

proof --

THE COURT: Right.

MR. KOHNEN: -- and leave it at that, because we don't

really want to be pigeonholed. We know, of course, that those

theories can be supplemented and then that can prompt the Court

to decide whether or not to release additional information

which only it has ex parte.

As soon as we're asked for it, we'll get a response to the

Court.

THE COURT: Do you think it would be helpful for the

parties, outside the Court's presence, to come up with a

proposed calendar going forward, including motion deadlines,

just to start to get some focus on where you're headed?

How long does the government think it would take to present

this case, a couple of days?

MR. MANGAN: The actual trial might go a little longer

than that, but I don't think we're talking a month either.

We'd like to probably maybe have some time to caucus with our

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folks in D.C., both about the trial length but also about

proposed schedule. We don't mind, you know, offline talking

with the defense about just some ideas and find out if we're in

the same ballpark or not. We haven't done that yet.

THE COURT: Well, the sooner you do that, the better.

My trial calendar is overwhelmingly stacked up.

MR. KOHNEN: We were worried about that, Judge.

THE COURT: That was a joke.

MR. KOHNEN: Oh.

THE COURT: It's stacked up.

THE LAW CLERK: I don't know that it's a joke. 

THE COURT: The law clerk -- 

MR. McBRIDE: May disagree with you.

(Laughter.)

THE COURT: I'm going to caucus with my law clerk.

THE LAW CLERK: It may be easier to wait to set a

motion deadline or to even discuss a motion deadline until you

know how long it will take for your client to get the

discovery.

I mean, you know, once he starts to look it over, he may

tell you that, you know, it's going to take him a month to look

over everything. So it may be easier to wait until, you know,

the laptop issue is accomplished before --

THE COURT: I think that makes eminent good sense, and

I misspoke previously.

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MR. KOHNEN: I agree. And I also think that might

prompt us all to keep our eyes on that prize.

THE COURT: Right. I was just trying to get a sense.

When are you going to try this? It's April. This summer, next

fall?

MR. KOHNEN: We sure want to -- we'd like to do it

probably not long after Labor Day.

MS. CORS: I mean, just to add, in terms of the

discovery -- and I could be wrong, but my assumption is that

once our client has full access to these materials, he is going

to be able to parse through it very quickly and know what is

extraneous, what is relevant for us to look at more quickly

pretty promptly. 

And again, he's got full days. So I would even be

surprised if he would need a full month to identify relevant

material. He might, but he's not going to need six months.

THE COURT: I have a better sense for potential time

playing out, and we will try this when it's ready.

MR. KOHNEN: That's all we can ask, Judge. Thank you.

THE COURT: Was there more on the plaintiff's

agenda -- or defense agenda today?

MR. KOHNEN: No. Thanks, Judge, for your time. And

again, thanks for accommodating us in this environment.

THE COURT: I thought you were remarkably restrained.

MR. KOHNEN: Thank you, Your Honor.

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MR. MANGAN: I disagree, but --

(Laughter.)

MR. MANGAN: -- we're on the record.

THE COURT: Was there more that the government wanted

to address today?

MR. MANGAN: I don't think so. No, Your Honor. I

think we would just need a new status report date and an ends

of justice to that date.

THE COURT: Indeed.

When do you propose? Maybe the defense would have a sense?

MR. KOHNEN: Mr. McBride, I'll defer to you.

MR. McBRIDE: Your Honor, I would respectfully suggest

another 60 days.

THE COURT: Very well. It's mid-April, mid-May,

mid-June.

THE LAW CLERK: Can I turn off your flashlight?

THE COURT: I can't turn it off. I don't know what

the problem is.

MR. McBRIDE: I have that same problem, Judge.

THE COURT: Thank you, sir.

MS. CORS: Actually, I do too. I have to have my kids

do it.

THE LAW CLERK: Wait. Okay. I don't know how to use

your phone.

THE COURT: I was looking at Flag Day. You can look

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at whatever you choose. 

MR. KOHNEN: It's funny. I was right there too.

MR. MIEDEL: Flag Day, the 14th, that sounds good.

MR. KOHNEN: I'm going to be in --

THE LAW CLERK: I think we're in trial.

THE COURT: Okay. I was teasing. You can look at the

calendar and make a proposal.

MR. KOHNEN: I'm going to be in San Francisco on Flag

Day.

(Mr. Kohnen and Ms. Cors confer privately.)

MR. KOHNEN: Judge, one thing I think we can deal with

in between is, we'd like the Court's permission to bring sort

of a subset of all the counsel of record to the status reports

and things of that nature to save travel schedule and our

client's money.

THE COURT: The gentleman from New York needs to be

here every time we convene.

MR. MIEDEL: No question.

MR. KOHNEN: He looks forward to it. He starts

calling us weeks ahead of time. It's become a bit of an

annoyance, frankly, but -- 

(Laughter.)

THE COURT: I was teasing. I think this makes some

sense.

MR. KOHNEN: Okay.

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THE COURT: What do you propose? Do you just want

to -- 

MR. KOHNEN: I think, Your Honor, we're just going to

do it ad hoc.

THE COURT: Fine.

MR. KOHNEN: We may, you know, give your chambers a

heads-up that somebody's not going to attend and see how that

goes initially.

Frankly, your chambers have been really accommodating, and

we appreciate that too.

THE COURT: Very well. So which of the four lawyers

really doesn't want to come back and see me?

MR. KOHNEN: Well, Your Honor, I don't feel this way,

but there's been a consensus that I might stay in the office.

So I don't know. We'll see.

THE COURT: Well, whatever you choose.

MR. MANGAN: Do we get a vote? Do we get a strike?

Can we have a couple strikes?

(Laughter.)

THE COURT: Good for you, Mr. Mangan.

MR. KOHNEN: I guess I can go to San Francisco on Flag

Day anyway, huh?

THE COURT: What do you --

THE LAW CLERK: June 17th or 18th.

MS. CORS: That's fine.

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MR. MANGAN: That's fine for us.

THE LAW CLERK: Is there a preference? 

MR. KOHNEN: Can we do the 18th?

THE LAW CLERK: Sure. 1:00 o'clock?

MR. MANGAN: Sure.

THE COURT: Well, on that date and time someone will

appear on behalf of the defendant and the government will

convene with us, and hopefully we will have made substantial

progress.

This was helpful for me personally today, and I appreciate

it. I should observe that I appreciate your approach, Mr.

Kohnen.

MR. KOHNEN: Thank you, Judge.

THE COURT: I think it was much smoother to have a

conversation in chambers rather than a moot court session in

the courtroom. And I'm enormously impressed with the

cooperation that's going on. I think both sides are trying to

get this moved forward, and it's a credit to all of you.

I don't suppose you've discussed outside the Court's

presence resolving the matter in some way other than a trial?

MR. KOHNEN: No, we have not, Your Honor.

THE COURT: I wouldn't stand in the way. So having

said that, perhaps we have done what we can today.

Is there more from the government?

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

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THE COURT: More from the defense?

MR. KOHNEN: No. Thank you, Judge.

THE COURT: Very well. Well, as you well know, I

don't often get a chance to say it, but -- 

We're going to do an ends of justice finding. The ends of

justice served by granting the requested continuance outweigh

the interests of the defendant and the public in a speedy

trial. Due to the complexity and voluminousness of discovery

and pretrial preparation, failing to grant the continuance

would likely result in a miscarriage of justice. 

So time is tolled from today until the new date. The Court

continues to be of the mind, as previously certified, that this

is complex litigation.

Having said all that, I was getting geared up for my

closing statement. I don't get a chance to say it often. With

the exception of Mr. Kohnen, you're free to go.

(Laughter.)

THE COURT: Actually, you can go too, Ralph. 

MR. KOHNEN: Thanks. Thanks, Judge.

(Proceedings concluded at 11:41 AM.)

- - - 

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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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