26506272.1 

IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

WESTERN DIVISION 

UNITED STATES OF AMERICA, 

Plaintiff, 

v. 

YANJUN XU, 

a/k/a Xu Yanjun, 

a/k/a Qu Hui, 

a/k/a Zhang Hui, 

Defendant. 

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Case No. 1:18-cr-00043 

Judge Timothy S. Black 

DEFENDANT’S REPLY IN SUPPORT 

OF MOTION TO DISMISS COUNTS I 

AND II OF THE INDICTMENT 

ORAL ARGUMENT REQUESTED 

[REDACTED] 

INTRODUCTION 

An indictment must describe the alleged offense “with reasonable particularity of time, 

place, and circumstances.” United States v. Cruikshank, 92 U.S. 542, 558 (1875). Criminal Rule 

7 provides that the indictment must include, inter alia, a “definite written statement of the 

essential facts constituting the offense.” Each count must allege only one criminal offense. 

Fed.R.Crim.P. 12(b)(3)(B)(i). These formal requirements are meant to ensure that an indictment 

serves its constitutional functions: to “fairly inform[ ] a defendant of the charge against which he 

must defend,” to “enable[ ] him to plead an acquittal or conviction in bar of future prosecutions 

for the same offense,” and to protect the defendant’s right to a unanimous jury verdict. Hamling 

v. United States, 418 U.S. 87, 117 (1974) (notice and double jeopardy); Russell v. United States, 

369 U.S. 749, 764 (1962) (same); United States v. Kakos, 483 F.3d 441, 443 (6th Cir. 2007) 

(unanimity). 

The government asserts in its Memorandum in Opposition to Defendant’s Motion to 

Dismiss Counts 1 and 2 (“Response”) that an indictment satisfies both the formal and functional 

requirements as long as one may “infer” a singular agreement (and only a singular agreement) 

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among unnamed, unknown co-conspirators to steal unidentified secrets from unidentified victims 

“around the world” over a five-year timeframe. To the extent that the Indictment is vague, the 

government says, it may cure that vagueness through discovery and trial evidence. The 

government’s position is untenable on its face, but the Response and the circumstances of this 

case make it all too clear that the Indictment here is inadequate. 

The government asserts that the Indictment can give adequate notice and double jeopardy 

protection without having to allege or prove much of anything. The government first declares 

that under Hamling v. U.S. 418 U.S. 87, 117 (1974) and U.S. v. Anderson, 605 F.3d 404, 412 (6th 

Cir. 2010), an indictment is sufficient as long as it recites the statutory language. (Opp’n at 1-4.) 

But neither case stands for that proposition. The government then asserts that because the 

“essence of the crime is the agreement to commit the crime,” it does not have to identify with 

any particularity the co-conspirators (i.e. those with whom the agreement was formed), the thing 

to be stolen (i.e. the crime to be committed), or the victim of the conspiracy (i.e. against whom 

the crime is to be committed). (Opp’n at 4-9.) 

But when the government moves to its argument on duplicity in the Indictment, the 

government then asserts that it does not have to prove an agreement at all—the agreement may 

be “inferred.” (Opp’n at 9.) But inferred from what? Remarkably little, says the government. The 

conspirators do not have to be directly associated, do not have to know each other, do not have to 

be members of the conspiracy at the same time or in the same place, and do not have to target the 

same objects or victims. (Opp’n at 9-12.) It is enough, according to the government, that the coconspirators assent to the same “common enterprise.” (Opp’n at 10.) One is left to wonder what 

could possibly be “common” under those circumstances. 

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The government all but admits that it holds all of the informational cards, but promises to 

fill in the gaps in the Indictment with discovery and its trial evidence. But as Mr. Xu has outlined 

in his motions for Brady material and for a bill of particulars, the government has already made 

discovery review incredibly difficult in this case. Even setting the government-imposed hurdles 

to one side, the government’s “indict first, fill in the gaps later” approach is antithetical to the 

purposes of an indictment. The government cannot argue that the Indictment is sufficiently clear 

because post-indictment discovery has filled in the gaps in the fifteen months since Mr. Xu was 

extradited and confined in prison. See United States. v. Landham, 251 F.3d 1072, 1080 (6th Cir. 

2001) (“Further, courts evaluating motions to dismiss do not evaluate the evidence upon which 

the indictment is based.”) Further, deferring to the government’s interpretation of the Indictment 

“would clearly infringe upon the grand jury’s function.” United States v. Ferguson, 681 F.3d 

826, 831 (6th Cir. 2012). The very point of an indictment, and the grand jury’s role in issuing it, 

is to protect criminal defendants from the whims of the prosecution. See United States v. 

Williams, 504 U.S. 36, 47 (1992) (“In fact the whole theory of its function is that it belongs to no 

branch of institutional government, serves as a kind of buffer or referee between the Government 

and the people.”). 

The government offers a case citation or two for each of its specific propositions of law, 

and each may be accurate on its own.1 But taken together, the government has stripped all form 

and function out of the Indictment. Mr. Xu cannot be on notice of the charges against him if, as 

the government argues (a) the co-conspirators do not have to be known even to the grand jury 

that handed down the Indictment, (b) the co-conspirators do not have to be members of the 

1

 Though, as explained below, the government’s Response is filled with truncated and inaccurate 

recitations of many of the cases it cites. 

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conspiracy in the same place, at the same time, or for the same target as Mr. Xu, (c) the coconspirators do not have to know or be acquainted with Mr. Xu, (d) the agreement between these 

unknown and potentially unconnected individuals may be “inferred,” (e) the Indictment does not 

have to identify the objects to be stolen, and (f) the Indictment does not have to identify the 

victim to be robbed. 

This no ordinary prosecution. The government extradited Mr. Xu from Belgium, pursuant 

to the U.S.-Belgium extradition treaty. Under the Rule of Specialty provisions in that treaty, the 

government may try Mr. Xu for only “the offense for which the extradition has been granted or a 

differently denominated offense based on the same facts on which extradition would be granted.” 

U.S.-Belgium Extradition Treaty, Art. 15. The government is therefore obligated to give Mr. Xu 

enough information to invoke the Rule of Specialty in future proceedings.2

The government’s Response otherwise says remarkably little. The Response repeatedly 

asserts that the Indictment is sufficient, but does little to substantiate that assertion. The 

government insists that the Indictment must only recite the statutory language, but Criminal Rule 

7 requires, inter alia, a “definite written statement of the essential facts constituting the offense 

charged.” Among the “essential facts” constituting a conspiracy to steal trade secrets are 

someone to conspire with and something to steal; the government refuses to identify either, 

promising to fill in its story later. Rather than give Mr. Xu adequate notice and the opportunity to 

avoid double jeopardy, the Indictment creates yawning gaps through which the government may 

conduct a trial by surprise. The Fifth and Sixth Amendments demand more. 

2

 This is not idle speculation. 

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ARGUMENT 

I. Counts I and II must be dismissed as unconstitutionally vague. 

A. An indictment is not clear simply because it recites the text of the criminal 

statute. 

An indictment must describe the alleged offense “with reasonable particularity of time, 

place, and circumstances, United States v. Cruikshank, 92 U.S. 542, 558 (1875). Criminal Rule 7 

provides that the indictment must include, inter alia, a “definite written statement of the essential 

facts constituting the offense.” In its Response, the government simply ignores these 

requirements, instead asserting that an indictment is sufficient as long as it recites the statutory 

language. (Opp’n at 1-4) (citing Hamling v. United States, 418 U.S. 87, 117 (1974) and United 

States v. Anderson, 605 F.3d 404, 412 (6th Cir. 2010).) But neither Hamling nor Anderson stand 

for that proposition. 

The Hamling Court opined that the statutory language was adequate only if the words of 

the statute “fully, directly, and expressly, without any uncertainty or ambiguity, set forth all the 

elements necessary to constitute the offense intended to be punished.” Hamling, 418 U.S. at 117. 

The Court observed that “[u]ndoubtedly the language of the statute may be used in the general 

description of an offense, but it must be accompanied with such a statement of the facts and 

circumstances as will inform the accused of the specific offense, coming under the general 

description, with which he is charged.” Id. at 117-118 (quoting United States v. Hess, 124 U.S. 

483, 487 (1888)). Contrary to the government’s argument, the Hamling Court did not announce a 

blanket rule that an indictment need only recite the words of the statute. Hamling is instead 

entirely consistent with the Supreme Court’s earlier pronouncement in Russell that “an 

indictment not framed to apprise the defendant with reasonable certainty, of the nature of the 

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accusation against him is defective, although it may follow the language of the statute.” Russell, 

369 U.S. at 765 (cleaned up). 

On page 3 of its Response, the government erroneously describes Anderson as follows: 

In Anderson, the Sixth Circuit noted that the indictment clearly 

tracked the language of the statute, included the relevant time 

period, and therefore contained the elements of the offense. 

Because both of the Hamling requirements were satisfied, the Sixth 

Circuit held that the indictment stated an offense. 

(Opp’n at 3.) 

The government tells a little less than half of the Anderson story. In Anderson, the 

government charged the owner of a healthcare facility with Medicaid fraud. Anderson, 605 F.3d 

at 407. The Court found that reciting the language of the Medicaid fraud statute satisfied only the 

first functional purpose of the indictment (or the first Hamling requirement, in the government’s 

Response): giving the defendant notice of the charges against him. But it did so only because—

as Hamling commands—the Medicaid fraud statute fully and unambiguously sets forth all of the 

elements of the offense.3Id. at 411 (“Given these specific allegations, Anderson was fairly 

informed of the charge against which she had to defend.”) But Anderson did not announce a 

blanket rule that any and all indictments that merely parrot the statute will adequately state the 

nature of the charges against the defendant. 

Nor did Anderson announce a rule that reciting the statutory language will meet both

Hamling requirements. Rather, the indictment in Anderson satisfied its second functional 

purpose—giving the defendant enough information to plead prior acquittal or conviction—only 

3

 Anderson was charged with one count of Medicaid fraud in connection with her ownership of a 

single healthcare facility. Needless to say, that is a far cry from an international conspiracy 

involving co-conspirators “known or unknown to the grand jury” and the entire Chinese 

intelligence apparatus. 

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because it “also included the relevant time period and the specific event that triggered the charge 

against [the defendant].” Id. Notably, the government’s recitation of Anderson omits the 

reference to the “specific event” that triggered the prosecution. (Opp’n at 3.) 

Both Hamling and Anderson confirm what the Supreme Court had already commanded in 

Cruikshank and Russell: an indictment must go beyond threadbare recitations of statutory text—

“it must descend to particulars. . . . [f]or this, facts are to be stated, not conclusions of law alone. 

. . . with reasonable particularity of time, place, and circumstances.” Cruikshank, 92 U.S. at 558. 

And as explained below, the relevant “particulars” here are the identity of Mr. Xu’s alleged coconspirators, the targets and scope of the conspiracy, and the alleged trade secrets to be stolen. 

B. The Indictment does not provide Mr. Xu with adequate notice of the alleged 

co-conspirators. 

As to the identity of the co-conspirators, the government’s response begins with a straw 

man. The government asserts that the Indictment “does not need to identify the names of coconspirators.” (Opp’n at 4.) Mr. Xu acknowledged in his motion to dismiss that the Indictment 

can refer to un-named co-conspirators. (Motion to Dismiss (“MTD”) at 7.) But it does not follow 

that the Indictment may refer to wholly unidentified co-conspirators—much less co-conspirators 

“unknown to the grand jury.” Mr. Xu merely asked the government to identify the alleged coconspirators with enough particularity to allow him to prepare a defense and plead prior acquittal 

or conviction to future prosecutions. (Id.) Moreover, the government must identify the coconspirators with enough particularity for Mr. Xu and the Court to ensure that the government 

abides by the Rule of Specialty in the extradition treaty it used to bring Mr. Xu to the United 

States in the first place. Surely that level of particularity can be found somewhere between 

naming the co-conspirators (the government’s strawman) and referring to “others known and 

unknown to the grand jury” (the Indictment). 

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Having refuted an argument Mr. Xu never made, the government next asserts that it has

adequately identified Mr. Xu’s alleged co-conspirators: “C.F. and others known and unknown to 

the grand jury.” (Opp’n at 5.) But “others known and unknown to the grand jury” could include 

literally anyone on earth. The government cannot say with a straight face that the Indictment 

meaningfully identifies for Mr. Xu individuals that were never identified to the grand jury that 

handed down the Indictment. See Russell, 369 U.S. at 770 (explaining that a bill of particulars 

cannot save an invalid indictment “[f]or a defendant could then be convicted on the basis of facts 

not found by, and perhaps not even presented to, the grand jury which indicted him.”) 

The government purports to narrow the pool of co-conspirators to, inter alia, unidentified 

individuals affiliated with the entire Chinese intelligence apparatus, two trade associations, and a 

university approximately twice the size of Northern Kentucky University. (Opp’n at 5.) Which is 

to say, at best the government in the Indictment “identifies” potential co-conspirators that could 

number in the hundreds or thousands. As a practical matter, that provides no more clarity or 

notice to Mr. Xu than “others known and unknown to the grand jury” does. That is a particularly 

glaring shortcoming in light of the government’s unsubstantiated assertion in its Response that 

all of the co-conspirators knew each other, communicated, and regularly worked together. 

(Section II, infra.) 

C. The Indictment does not allege a criminal agreement prior to March 2017. 

As Mr. Xu explained in his motion to dismiss, “[t]he only factual allegations included in 

the Indictment to support the existence of an agreement prior to March 2017 are two isolated 

‘communications’ from December 2013 and April 2014 which, on their face, do not describe an 

agreement at all, much less one to engage in illegal conduct.” (MTD at 8.) The motion to dismiss 

explains in detail why neither communication reveals an agreement to do anything—certainly 

not to steal trade secrets in violation of the EEA—and why neither communication relates in any 

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way to the core allegations of the Indictment regarding an alleged conspiracy during 2017 and 

2018 to obtain technology from GE Aviation. (Id. at 8-9.) 

 The government does not respond to that argument at all. Indeed, the Response does not 

even appear to acknowledge that Mr. Xu specifically challenged the pre-March 2017 allegations. 

(Opp’n at 5-7.) The government’s Response consists entirely of quoting from the Indictment, but 

with no explanation of why the statements in the Indictment are sufficient to allege a 

conspiratorial agreement based on two “communications.” Repetition is no substitute for 

argument.4

D. The Indictment does not meaningfully identify the scope of the alleged 

conspiracy. 

Mr. Xu argued in the motion to dismiss that the government must identify the alleged 

victims and geographic scope of the conspiracy with some meaningful particularity. (MTD at 10-

11.) In particular, Mr. Xu pointed out that the Indictment itself is inconsistent on the universe of 

potential victim companies, and that the vagueness of the Indictment makes it impossible to 

determine what charges he must prepare for, and likewise makes it impossible to plead prior 

conviction or acquittal to future prosecution on the basis of this Indictment. But as if to validate 

Mr. Xu’s concerns about the government exploiting the vagueness of the Indictment, the 

government’s Response expands the pool of potential victims beyond “companies” to include 

“companies and countries.” (Opp’n at 6, 12.) That is precisely the kind of creeping accusations—

or rather, constructive amendment—that Mr. Xu feared from the government’s initial broad and 

4

 The Response begins on this point by asserting that there are two parallel conspiracies alleged 

in the Indictment. (Opp’n at 5.) But that does nothing to explain how the 2013 and 2014 

communications establish or even relate to either alleged conspiracy (though the government 

apparently believes that the communications established both “distinct” conspiracies). See

Indictment, ¶¶ 13, 17. 

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non-specific allegations.5 At minimum, the government’s Response suggests that it believes the 

alleged conspiracy is broader than what is alleged in the Indictment, and intends to argue as 

much at trial. Mr. Xu surely cannot adequately prepare a defense to charges the government 

appears to be constructively amending in real time. 

Rather than respond to that argument, the government again constructs a straw man, 

arguing that it does not have to “identif[y] by name” all intended victims. (Opp’n at 7.) Mr. Xu 

asked for no such thing; he merely asks the government to describe his alleged offense with 

reasonable particularity—which surely exists somewhere between naming every potential victim 

and undifferentiated “non-Chinese companies and countries.” 

The government also asserts in its response that it does not have to define the geographic 

scope of a conspiracy. (Opp’n at 7). That single sentence is the whole of the government’s 

argument, and it is incorrect.6 An indictment must describe the alleged offense with “reasonable 

particularity of time, place, and circumstances.” Cruikshank, 92 U.S. at 558 (emphasis added). 

Mr. Xu only asks what the law requires: that the government describe the offense with 

enough particularity to allow Mr. Xu to prepare a defense and to ascertain in a future prosecution 

whether he may plead prior acquittal or conviction. The government has alleged that Mr. Xu 

conspired with the entire Chinese intelligence apparatus to steal information from aviation 

companies around the world. The government also believes that Mr. Xu targeted GE Aviation to 

steal information of some kind. That is, the Indictment alleges a global conspiracy, borne out of a 

5

 No matter how broadly the government reads the Indictment, a conspiracy to steal trade secrets 

from “countries” is outside the factual basis for his extradition, and thus any amendment of the 

Indictment along those grounds—whether constructive or express—would violate the Rule of 

Specificity in the U.S.-Belgium Extradition Treaty. 

6

 The government goes on to state that it has provided the defense with thousands of pages of 

discovery. But for the reasons stated in section I.F., infra, discovery cannot cure a defective 

indictment. 

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particular event. But suppose that later this year, the government discovers that members of MSS 

conspired to steal information from Lockheed-Martin between 2013 and 2018, and the 

government then seeks to charge Mr. Xu with conspiracy to steal trade secrets in connection with 

that conspiracy. Could Mr. Xu plead prior acquittal or conviction to those charges based on the 

Indictment here? 

E. The Indictment does not identify the trade secrets targeted by the alleged 

conspiracy. 

As explained in Mr. Xu’s motion to dismiss, if the government charges a defendant with 

a theft offense, it must identify the stolen articles. Cruikshank, 92 U.S. at 558. Consistent with 

that rule, an indictment under the EEA must identify with specificity the trade secrets that the 

defendant allegedly set out to steal. United States v. Case, No. 3:06-cr-210, 2007 WL 1746399, 

at *3 (S.D. Miss June 15, 2007); 142 Cong. Rec. S12201, S12213 (daily ed. Oct. 2, 1996). 

The government’s Response begins with misdirection, asserting that it does not have to 

prove an actual theft of a trade secret or prove “the actual trade secrets that were targeted.” 

(Opp’n at 8.) The government relies on and misstates the holdings of United States v. Yang, 281 

F.3d 534 (6th Cir. 2002); United States v. Hsu, 155 F.3d 189 (3d Cir. 1998)7; and United States 

v. Liew 2013 WL 2605126 (N.D. Call 2013). Yang and Hsu stand for the proposition that legal 

impossibility is not a defense to a conspiracy to steal trade secrets conviction. Yang, 281 F.3d at 

541; Hsu 155 F.3d at 202-03.8 That is, if a defendant believes that the information he set out to 

steal is a trade secret, then he may be convicted of conspiracy to steal trade secrets, even if the 

7

 The government refers to Hsu as a Seventh Circuit case from 2002. 

8 Liew adopted the government’s erroneous interpretation of Yang and Hsu. 2013 WL 2605126, 

at *5. 

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information to be stolen is not actually a trade secret. Id. But neither case absolves the 

government of its obligation to identify what the defendant allegedly set out to steal. 

The government then flatly misrepresents United States v. Case. The government states 

that “[i]n Case, the defendant only challenged the substantive offense for the actual theft of a 

specific trade secret. The conspiracy charge in Case was not challenged on the same basis.” 

(Opp’n at 8.) The district court in Case saw things differently: 

Defendants urge that the indictment is unconstitutionally vague. 

Specifically, they contend that Counts 2 and 3 [theft of trade 

secrets] are insufficient as neither count purports to meaningfully 

identify the trade secret which was allegedly stolen or copied. . . . 

Finally, they argue that because the objects of the conspiracy fail 

due to vagueness, the conspiracy count [conspiracy to steal trade 

secrets] must likewise fall.

United States v. Case, No. 3:06-cr-210, 2007 WL 1746399, at *2 (S.D. Miss. June 15, 

2007). See also id. at *5 (“The court next reaches defendants’ argument that because the 

substantive counts are subject to dismissal, the conspiracy count necessarily falls.”). The court 

found that the substantive theft counts had to be dismissed as unconstitutionally vague. The 

government could not allege only that the defendants stole “trade secrets” or “a trade secret,” nor 

could it describe the allegedly stolen secrets “by category.” Id. at *4. The court went on to say 

that it agreed in part with “defendants’ argument that because the substantive counts are subject 

to dismissal, the conspiracy count necessarily falls.” Id. at *5. The court permitted the conspiracy 

count to go forward solely because the “overt act” section specifically identified the secrets to be 

stolen: “an Eaton [the victim company] design drawing of a spline shaft and piston” and “Eaton 

CADs.” Id. at *6. The Indictment here is devoid of anything approaching that level of specificity. 

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F. Post-Indictment discovery cannot cure a deficient Indictment. 

The government asserts that post-Indictment discovery has cured any vagueness in the 

Indictment by providing details about the co-conspirators and their interactions. (Opp’n at 5, 8.) 

As both a legal matter and a practical matter, the government is mistaken. 

Courts evaluate an indictment based on what it contains, and not on the way the 

government later interprets it or on the evidence the government later produces. See United 

States v. Ferguson, 681 F.3d 826, 831 (6th Cir. 2012); United States v. Landham, 251 F.3d 1072, 

1080 (6th Cir. 2001) (“Further, courts evaluating motions to dismiss do not evaluate the evidence 

upon which the indictment is based.”). And a post-indictment bill of particulars cannot save an 

impermissibly vague indictment. Russell, 369 U.S. at 770. As the Supreme Court explained in 

Russell, the Fifth Amendment requires a prosecutor to secure an indictment from a grand jury 

before hauling a defendant to court, so allowing the prosecutor to backfill a vague indictment—

or forcing the court to do so—“would deprive the defendant of a basic protection which the 

guaranty of the intervention of a grand jury was designed to secure.” Russell, 369 U.S. at 770. It 

naturally follows that if the government cannot clarify an indictment with a bill of particulars (a 

formal document in which the government details its theory of the case), then it cannot 

coherently clarify an indictment via rolling a production of the discovery in tiers, several of 

which contain hundreds of pages of discovery (much of it in a foreign language) over fifteen 

months. And as the Court is already aware, the government objects to even providing a bill of 

particulars. 

On the practical side, the numerous complex logistical challenges make discovery access 

and review unusually problematic in this case. The government has refused to translate 

documents outside those that it intends to use in its case in chief (already the subject of a pending 

motion). These issues are compounded by language barriers, the restrictions of a protective 

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order, the ongoing production of huge volumes of discovery, and Mr. Xu’s detention in a facility 

four hours away from his attorneys which severely limits his ability to communicate with 

counsel or assist in the preparation of his defense. And the government has refused to 

affirmatively search for and identify Brady and Giglio material. 

To the extent that discovery is relevant to the indictment, it only confirms the core 

deficiency in the indictment. 

9

II. The Indictment must be dismissed as duplicitous. 

“An indictment is duplicitous if it sets forth separate and distinct crimes in one count.” 

United States v. Kakos, 483 F.3d 441, 443 (6th Cir. 2007) (citation omitted). “The overall vice of 

duplicity is that the jury cannot in a general verdict render its finding on each offense, making it 

difficult to determine whether a conviction rests on only one of the offenses or on both,” 

depriving the defendant of his right to a unanimous jury verdict. Id. A duplicitous indictment 

also deprives the defendant of adequate notice of the charges against him, invites erroneous 

evidentiary rulings (i.e. evidence relevant to only one charge may be admitted as to all charges in 

9

 Discovery and the extradition papers in this case indicate that the government arrested Mr. Xu 

in connection with an alleged conspiracy targeting GE Aviation. The Rule of Specialty would 

likely limit the government to a prosecution based on GE-related facts. 

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the indictment), prejudices the defendant at sentencing and on appeal, and potentially exposes 

him to double jeopardy. Id. at 443-44.10

A. The Indictment does not identify a single agreement forming a singular 

conspiracy to steal trade secrets. 

Mr. Xu explained in his motion to dismiss that the government has failed to charge a 

single conspiracy here—that is, the indictment does not allege a singular agreement to pursue a 

common unlawful end. The government begins its response by arguing that it does not have to 

prove an “agreement” at all; the agreement “can be inferred.” (Opp’n at 9.) That is a curious 

position for the government, given that it spent the preceding 8 pages of its Response arguing 

that it does not need to provide any details about the alleged conspiracy because “the essence of 

a conspiracy is an agreement.” (Opp’n at 1.) In any event, the government truncates the holding 

from United States v. Segines, 17 F.3d 847 (6th Cir. 1994), on which it relies. 

Segines was an appeal from a trial—already a distinct procedural posture from this 

case—involving cocaine distribution. The Sixth Circuit had ordered a new trial based on 

improper judicial behavior. The defendants argued that the case should be dismissed altogether 

because they distributed drugs in different locations, and thus the government failed to show that 

they were involved in the same conspiracy. The Sixth Circuit explained that “in a ‘chain’ 

conspiracy, the agreement can be inferred from the interdependent nature of the criminal 

enterprise. Conspiracies to distribute narcotics are often ‘chain’ conspiracies.” Segines, 17 F.3d 

at 856 (cleaned up). For that reason, the court said, “[t]he law of this circuit permits the 

defendants to be retried on the conspiracy count as outlined in the original indictment. We 

emphasize, however, that the trial judge may decide at his discretion whether or not to issue a 

10 The government makes no argument as to the prejudice caused by the duplicitous indictment 

here. 

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multiple conspiracies instruction to the jury.” Id. In sharp contrast, the government has not 

charged Mr. Xu with a narcotics offense or anything else that might be plausibly described as a 

“chain conspiracy.” Even if it had, the government has not described the “interdependent nature 

of the criminal enterprise” from which an agreement may be inferred; it instead relies in large 

part on two “communications” which do not reflect an agreement at all. 

The rest of the government’s citations follow the same pattern. The government cites 

United States v. Ghazaleh, 58 F.3d 240 (6th Cir. 1995); United States v. Maliszewski, 161 F.3d 

992 (6th Cir. 1998); and United States v. Hughes, 895 F.3d 1135 (6th Cir. 1990) to support its 

argument that the co-conspirators need not reach an agreement to commit a crime, so long as 

they are all working towards the same purpose. But, like Segines, all three cases involve drug 

distribution schemes and the “chain conspiracy” rule. 

B. At most, the allegations in the Indictment allege a rimless wheel conspiracy. 

After arguing that co-conspirators do not have to know each other in order to form a 

single conspiracy, the government then asserts that the conspiracies alleged in the indictment are 

not rimless wheel conspiracies because all of the co-conspirators (or at least the MSS coconspirators) “knew each other, communicated with each other, and worked with each other on a 

regular basis towards the illegal conspiratorial objective.” (Opp’n at 11.) There are three 

problems with the government’s position (setting aside its inconsistency with the immediately 

preceding paragraphs). 

First, Mr. Xu noted in his motion to dismiss that there are three distinct groups of alleged 

co-conspirators: CF, Mr. Xu’s colleagues in the 2013 communications, and Mr. Xu’s colleagues 

in the 2014 communications. Nothing in the indictment ties any of those groups together; the 

indictment does not allege any relationship between CF and Mr. Xu until 2017, and it does not 

allege any relationship between CF and the 2013 or 2014 colleagues (or between the 2013 and 

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2014 colleagues themselves) at all. The indictment is just what the Swafford court described as 

rimless wheel conspiracy: “one in which various defendants enter into separate agreements with 

a common defendant, but where the defendants have no connection with one another, other than 

the common defendant’s involvement in each transaction.” United States v. Swafford, 512 F.3d 

833, 842 (6th Cir. 2008) (citation omitted). 

Second, the indictment does not allege that the MSS co-conspirators all knew each other, 

communicated, or regularly worked together. Contrary to the government’s insinuation, that is 

not merely Mr. Xu’s litigation position. The government cannot point to any allegation anywhere 

in the indictment that shows that the three distinct groups of co-conspirators—CF, Mr. Xu’s 

colleagues in the 2013 communications, and Mr. Xu’s colleagues in the 2014 communications—

knew each other, much less agreed to the same singular illegal enterprise. Instead, the 

government states that the relationships among the MSS co-conspirators “is shown in the 

discovery” and “will be presented at trial.” (Opp’n at 11.) As explained above, post-indictment 

discovery is no substitute for a valid indictment. Nor, for that matter, is a Response to a motion 

to dismiss, or a subsequent trial-by-ambush. 

Third, the indictment does allege that Mr. Xu conspired with individuals “unknown to the 

grand jury.” The government can hardly state now with absolute certainty that these unknown 

individuals knew, communicated with, or regularly worked with Mr. Xu. Nor can the 

government explain how the grand jury concluded that individuals unknown to the grand jury 

“agreed to participate in what [they] believed to be a collective venture toward a common goal.” 

(Opp’n at 11.) Instead, it appears that the government has reserved for itself the right to construct 

its case on the fly. Rather than prepare an indictment, the government has proposed an MLB 

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trade: “temporary” incarceration of Mr. Xu for conspiring with individuals to be named later, to 

steal objects to be named later. 

The government waves off the cases cited in Mr. Xu’s motion to dismiss as “inapposite” 

without explaining why. (Opp’n at 12.) The government simply reasserts its position from two 

paragraphs before, but with a bit less precision: “[t]he co-conspirators knew each other, 

communicated with each other, and worked towards the common goal of illegally stealing 

aviation trade secrets.” (Id.) But repetition is not an argument. Moreover, just two paragraphs 

before, the government acknowledged that this supposed relationship between unnamed, 

unknown co-conspirators would be revealed in discovery and at trial—not in the indictment 

(again, it is telling that the government could not even point to the paragraph in the indictment 

that establishes these relationships). If the indictment does not allege a rimless wheel conspiracy, 

the government is obligated to point out where the indictment—not discovery, and certainly not 

the trial evidence—encloses the spokes. Med. Ctr. at Elizabeth Place, LLC v. Atrium Health Sys., 

922 F.3d 713, 732 (6th Cir. 2019) (“There is no ‘rim’ conspiracy without alleged agreement

among the parties at the rim.”). 

The government does of course reference two communications in the indictment from 

2013 and 2014. Mr. Xu argued at length in the motion to dismiss that neither communication 

reflects an agreement to do anything, much less anything criminal. But the government asserts 

that those isolated communications establish two “parallel but distinct” conspiracies. (Indictment 

at ¶¶ 13, 17.) One is left to wonder how the government can argue that one conversation could 

establish two distinct conspiracies in those paragraphs, while also arguing that the entire Chinese 

intelligence apparatus “knew each other, communicated with each other, and worked towards” 

one common goal for one conspiracy. 

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C. Mr. Xu is entitled to choose the remedy for a duplicitous Indictment. 

The government is correct to say that there are several potential remedies for a 

duplicitous indictment. (Opp’n at 12.) But if a defendant challenges a duplicitous indictment 

before trial, Kakos puts the choice of remedies in the hands of that defendant: “[a] defendant

moving pursuant to Rule 12 can request that a duplicitous indictment be dismissed, he can 

attempt to force the government to elect the charge within the count upon which it will rely, or 

he can ask the court to particularize the distinct offenses contained within a count.” United States 

v. Kakos, 483 F.3d 441, 444 (6th Cir. 2007) (internal citations omitted). The court steps in to 

choose the remedy only if the defendant waits until trial to raise the issue, because “a defendant's 

objections to the indictment made after trial has begun are properly addressed not to the 

indictment itself but to the harm stemming from the duplicitous indictment.” Id.

CONCLUSION 

The government filed a vague and duplicitous indictment, then purported to fill in the 

gaps with voluminous, rolling discovery, all while keeping the defendant “temporarily” detained 

for fifteen months (and counting), hours away from his attorneys. The Fifth and Sixth 

Amendments demand more. As such, Mr. Xu respectfully requests that the Indictment be 

dismissed as to Counts I and II. 

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Respectfully submitted, 

/s/ Robert K. McBride 

Ralph W. Kohnen (0034418) 

Jeanne M. Cors (0070660) 

Robert K. McBride (pro hac vice)

Taft Stettinius & Hollister LLP 

425 Walnut Street, Suite 1800 

Cincinnati, Ohio 45202-3957 

Telephone: (513) 381-2838 

Fax: (513) 381-0205 

kohnen@taftlaw.com 

cors@taftlaw.com 

rmcbride@taftlaw.com 

Florian Miedel (pro hac vice)

Miedel & Mysliwiec LLP 

80 Broad Street, Suite 1900 

New York, NY 10004 

Telephone: (212) 616-3042 

Fax: (800) 507-8507 

fm@fmamlaw.com 

COUNSEL FOR DEFENDANT 

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CERTIFICATE OF SERVICE 

I hereby certify that on January 10, 2019 a copy of the foregoing was filed electronically. 

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

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

/s/ Robert K. McBride

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