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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

* * *

UNITED STATES OF AMERICA, : Case No. 1:18-cr-0043

:

Plaintiff, :

:

- v - : Jury Instructions

:

YANJUN XU, also known as XU : Wednesday, November 3, 2021

YANJUN, also known as QU HUI, : 9:30 a.m.

also known as ZHANG HUI, :

: Cincinnati, Ohio

Defendant. :

* * *

EXCERPT OF TRANSCRIPT OF PROCEEDINGS

BEFORE THE HONORABLE TIMOTHY S. BLACK, DISTRICT JUDGE

For the Plaintiff: TIMOTHY S. MANGAN, ESQ.

EMILY N. GLATFELTER, ESQ.

Assistant United States Attorneys

221 East Fourth Street, Suite 400

Cincinnati, Ohio 45202

and

MATTHEW J. McKENZIE, ESQ.

United States Department of Justice

National Security Division

950 Pennsylvania Avenue NW

Washington, D.C. 20530

and

JACQUELINE K. PRIM

Special Assistant, Paralegal

United States Department of Justice

National Security Division

950 Pennsylvania Avenue NW

Washington, D.C. 20530

For the Defendant: RALPH W. KOHNEN, ESQ.

JEANNE MARIE CORS, ESQ.

SANNA-RAE TAYLOR, ESQ.

Taft Stettinius & Hollister

425 East Walnut Street, Suite 1800

Cincinnati, Ohio 45202

and

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ROBERT K. McBRIDE, ESQ.

AMANDA JOHNSON, ESQ.

Taft Stettinius & Hollister

50 East RiverCenter Boulevard

Suite 850

Covington, Kentucky 41011

and

FLORIAN MIEDEL, ESQ.

Miedel & Mysliwiec, LLP

80 Broad Street, Suite 1900

New York, New York 10004

Also Present: Mae Harman, Interpreter

Robin Murphy, Interpreter

Yanjun Xu, Defendant

Law Clerk: Cristina V. Frankian, Esq.

Courtroom Deputy: Rebecca R. Santoro

Court Reporter: M. Sue Lopreato, RMR, CRR

Potter Stewart U.S. Courthouse

Southern District of Ohio

100 East Fifth Street

Cincinnati, Ohio 45202

513.564.7679

- - -

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P R O C E E D I N G S

(In open court at 9:31 a.m.)

* * *

THE COURT: It's 9:26, 9:28, we're back in the

courtroom on the record in the criminal trial of the United

States versus Xu. The jury is not yet present.

The government team appears present, the defense as well,

including the defendant and two interpreters. We're on the

record outside the presence of the jury.

I want to enter an order relating to coconspirator

statements. I conditionally admitted them. Now that the

government has rested, the Court finds fully that the

coconspirator statements are admissible pursuant to

Rule 801(d)(2)(E).

That rule provides that the statements of a coconspirator

made during the course and in furtherance of a conspiracy are

not hearsay; however, a predicate for the admission of alleged

hearsay statements of a coconspirator is proof of the

existence of a conspiracy as determined by a trial court,

based upon a preponderance of the evidence, United States v.

Barrett, Sixth Circuit.

The district court may admit the challenge statements

subject to the condition that the government will later

demonstrate that the requirements of the rule have been met,

United States v. Pressley. That's what I've done here.

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The Court should rule on the admissibility of hearsay

evidence at the close of the government's case in chief.

That's what I'm doing here.

Here the Court finds that the government sufficiently met

its burden by a preponderance of the evidence, as supported by

corroborating evidence and testimony. The defendant was a

member of that conspiracy and that the statements were made in

furtherance of the conspiracy.

Accordingly, the coconspirator statements are admissible

pursuant to Rule 801(d)(2)(E), and conspiracy should be

plural.

It is so ordered.

Last night, the Court's law clerk, by email, memorialized

my finding regarding the government's oral motion to limit

certain statements by the defense in closing. I wish to

memorialize it as a Court order.

The Court has determined that it will not limit the

defense's closing arguments in advance; however, should

defense counsel make argument that could reasonably be

construed as implying that the jurors may consider either

ignorance of the law, i.e., that IP laws of other countries

are different, or entrapment, i.e., that the defendant was

tricked into violating the law, the Court will be responsive

to an objection from the government, and I will interrupt

closing to instruct the jury to disregard any such arguments.

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It is so ordered.

The government has rested. The exhibits have been

admitted into evidence as we went along. Stipulations are no

longer relevant because we deal with them in the instructions

or in the course of the trial.

Is there anything further from the government?

MR. MANGAN: No, Your Honor.

THE COURT: Very well. And as to the defense, I

would propose, when the jury comes in, to remind them that the

government has rested, and then ask where are we from the

defendant's perspective, unless defense wants me to address it

differently.

Is that amenable to the defense?

MR. KOHNEN: Yes, it is. Thank you, Judge.

THE COURT: So you're going to rest in the presence

of the jury?

MR. KOHNEN: That's ideal. Thank you. Yes, Judge.

THE COURT: Very well. At that point, I will advise

them that the evidence is closed, that we are proceeding to

jury instructions, which will be followed today by the

government's closing argument, the defendant's closing

argument, and the government's final rebuttal, if any, as

reserved. I will then charge the jury, read the jury

instructions.

At the completion of reading the jury instructions, I

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propose to release the alternates, and then take a 15-minute

break and come back for the government's closing argument that

I would like to complete in one fell swoop, and then

presumably break for lunch.

After lunch, we do the defendant's closing argument, the

government's rebuttal, if any, and then we would send the jury

to deliberate mid- -- early, midafternoon.

I would advise them that we will check with them as to

their preferences at the standard release time of 4:30. I'm

likely to advise them to take as much time or days as they

need.

Does that proposed chronology provoke any comment or

questions, first from the government?

MR. MANGAN: Your Honor, if I understood you right,

our understanding is that the alternates would stay through

closing arguments and only be released at the end, when they,

the jury of 12, goes to deliberate.

THE COURT: I agree. That was my mistake. Thank you

for speaking up.

MR. MANGAN: Otherwise, that's fine, Your Honor.

Do you wish the government to set a certain amount that

we wish to reserve for rebuttal? We do want to do a rebuttal,

so I wanted to make that clear.

THE COURT: Yes. I think you should -- I'm not

limiting you on timeline, I just think you ought to indicate

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that you reserve adequate time for rebuttal. Is the

government comfortable with that?

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

THE COURT: Defense as well?

MR. KOHNEN: Yes, Your Honor. The schedule fits.

Thank you.

THE COURT: And is the government moving to formally

admit evidence in the jury's presence, or do I just state that

the evidence is -- the exhibits have been admitted and will be

available to them and the evidence is closed?

MR. MANGAN: I think the statement that you just said

would be fine, Your Honor.

THE COURT: And which statement was that?

MR. MANGAN: The statement that the evidence has been

admitted and will be available for the jury at the close.

THE COURT: And is the government comfortable -- are

the defense comfortable with that?

MR. KOHNEN: Yes, Your Honor.

THE COURT: Well, I would propose to get the jury.

Is the government ready?

MR. MANGAN: Yes, we are.

THE COURT: And the defense?

MR. KOHNEN: Yes, Judge.

THE COURT: Very well. Let's call for the jury.

(Jury in at 9:40 a.m.)

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THE COURT: You my all be seated. Thank you. The

15 members of the jury have rejoined us in the courtroom after

a break over the weekend until today. Thank you for your

patience and understanding. Thank you for your continuing

work.

As you recall, when we were last here Friday, the

government rested, having presented its case.

How does the defense intend to proceed?

MR. KOHNEN: Your Honor, the defense rests.

THE COURT: Very well. The evidence is closed. The

exhibits are in evidence and will be provided to you in hard

copy in your jury deliberation room.

I'm going to instruct you in the law at this time, and we

will take a break after that.

We've prepared written copies of what I'm going to read

to you for each of you, in the event that you find that

helpful.

Could we distribute the jury instructions to the jurors,

Ms. Santoro?

COURTROOM DEPUTY: Yes.

THE COURT: After the jury instructions have been

read to you, we'll take a break, and you'll come back, you'll

hear closing argument. The government goes first, followed by

the defense. The government gets the last word. Closing

argument is not evidence. It's designed to argue their

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position upon the evidence.

Do they have the verdict forms as well, Ms. Santoro?

COURTROOM DEPUTY: Yes, Judge.

THE COURT: Very well. Everybody has their own

packet. Now look at me for a minute. I told you this once

before about reading stuff aloud. Last time it occurred for

me was when my mother was trying to get me to go to sleep.

I need you to bear with me, and listen and read carefully

the jury instructions. You'll have a copy going back up with

you to the jury room. But forgive me, I'm going to read it

all. I'm going to start on page 1.

Members of the jury, now it is time for me to instruct

you about the law that you must follow in deciding this case.

I will start by explaining your duties and the general rules

that apply in every criminal case.

Then I will explain the elements, or parts of the crimes

that the defendant is accused of committing. Then I will

explain some rules that you must use in evaluating particular

testimony and evidence. Last, I will explain the rules that

you must follow during your deliberations in the jury room and

the possible verdicts that you may return.

Please listen carefully to everything I say. As to

jurors duties, you have two main duties as jurors. First, you

must decide what the facts are from the evidence, which you

saw and heard here in court. Deciding what the facts are is

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your job, not mine, and nothing that I have said or done

during this trial was meant to influence your decision about

the facts in any way.

Second, your duty is to take the law that I give you,

apply it to the facts, and decide if the government has proved

or not proved the defendant guilty beyond a reasonable doubt.

It's my job to instruct you about the law, and you're

bound by the oath that you took at the beginning of the trial

to follow the instructions that I give you, even if you

personally disagree with them.

This includes the instructions that I gave you before and

during the trial, and these instructions. All the

instructions are important. You should consider them together

as a whole.

The lawyers may talk to you about the law during their

closing arguments, but if what they say is different from what

I say, you must follow what I say. What I say about the law

controls.

Perform these duties fairly. Do not let any bias,

sympathy, or prejudice that you may feel toward one side or

the other influence your decision in any way.

As to the presumption of innocence, the burden of proof

and reasonable doubt. As you know, the defendant has pleaded

not guilty to the crimes charged in the document called an

indictment. The indictment is not evidence, any evidence at

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all, of guilt. It's just the formal way that the government

tells the defendant what crimes he is accused of committing,

but does not even raise any suspicion of guilt.

Instead, the defendant starts the trial with a clean

slate, with no evidence at all against him, and the law

presumes that he is innocent. This presumption of innocence

stays with him unless the government presents evidence here in

court that overcomes the presumption and convinces you beyond

a reasonable doubt that he is guilty.

This means that the defendant has no obligation to

present any evidence at all, or to prove to you in any way

that he is innocent. It is up to the government to prove that

he is guilty, and this burden stays on the government from

start to finish. You must find the defendant not guilty

unless the government convinces you beyond a reasonable doubt

that he is guilty.

The government must prove every element of the crimes

charged beyond a reasonable doubt. Proof beyond a reasonable

doubt does not mean proof beyond all possible doubt. Possible

doubts or doubts based purely on speculation are not

reasonable doubts. A reasonable doubt is a doubt based on

reason and common sense. It may arise from the evidence, the

lack of evidence, or the nature of the evidence.

Proof beyond a reasonable doubt means proof which is so

convincing that you would not hesitate to rely and act on it

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in making the most important decisions in your own lives. If

you're convinced that the government has proved the defendant

guilty beyond a reasonable doubt, say so by returning a guilty

verdict. If you're not convinced, say so by returning a not

guilty verdict.

As for improper considerations. As I will explain more

fully in a moment, your verdict must be based solely upon the

evidence developed at trial or the lack of evidence.

In reaching your decision as to whether or not the

government met its burden of proof, it would be improper for

you to consider any personal feelings that you may have about

the race or national origin of the defendant.

It would be equally improper for you to allow any

personal feelings you might have about the nature of the

crimes charged to interfere with your decisionmaking process.

To repeat, your verdict must be based exclusively upon

the evidence or the lack of evidence in the case. And you

must always remember that the defendant is presumed innocent,

and the government bears the burden of proving guilt beyond a

reasonable doubt.

As to evidence defined. You must make your decision

based solely on the evidence that you saw and heard here in

court. Do not let rumors, suspicions, or anything else that

you may have seen or heard outside of court influence your

decision in any way.

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The evidence in this case includes only what the

witnesses said while they were testifying under oath, the

exhibits that I allowed into evidence, and the stipulations

the lawyers agreed to.

Nothing else is evidence. The lawyers' statements and

arguments are not evidence. The questions the lawyers asked

are not evidence. The lawyers' objections are not evidence.

My legal rulings are not evidence. And any comments I may

have made or questions I may have asked are not evidence.

During the trial, I did not let you hear the answers to

some of the questions that the lawyers asked. You must

completely ignore those questions. Do not even think about

them. Do not speculate what a witness might have said. These

things are not evidence. You're bound by your oath not to let

them influence your decision in any way. Make your decision

based solely on the evidence, as I have defined it here, and

nothing else.

As to consideration of the evidence. Once again, you're

to consider all the evidence that you saw and heard in this

case. You should use your common sense in weighing that

evidence. Consider the evidence in light of your every day

experiences with people and events, and give the evidence

whatever weight you believe it deserves. If your experience

tells you that certain evidence reasonably leads to a

conclusion, you're free to reach that conclusion.

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As to direct and circumstantial evidence. I'm going to

remind you of the difference between them. Direct evidence is

simply evidence like the testimony of an eyewitness which, if

you believe it, directly proves a fact.

If a witness testified that he saw it raining outside,

and you believed him, that would be direct evidence that it

was raining.

Circumstantial evidence is simply a chain of

circumstances that indirectly proves a fact. If someone

walked into the courtroom wearing a raincoat covered with

drops of water and carrying a wet umbrella, that would be

circumstantial evidence from which you could conclude that it

was raining.

It's your job to decide how much weight to give the

direct and circumstantial evidence. The law makes no

distinction between the weight that you should give to either

one, nor does the law say that one is any better evidence than

the other. You should consider all the evidence, both direct

and circumstantial, and give it whatever weight you believe it

deserves.

As to credibility of witnesses. Another part of your job

as jurors is to decide how credible or believable each witness

was. This is your job, not mine or anyone else's. It's up to

you to decide if a witness's testimony was believable, and how

much weight you think it deserves. You're free to believe

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everything that a witness said, or only part of it, or none of

it at all. But you should act reasonably and carefully in

making these decisions.

Let me suggest some ways for you to consider in

evaluating each witness's testimony. Ask yourself if the

witness was able to clearly see or hear the events. Sometimes

even an honest witness may not have been able to see or hear

what was happening and may make a mistake.

Ask yourself how good the witness's memory seemed to be.

Did the witness seem able to accurately remember what

happened.

Ask yourself if there was anything else that may have

interfered with the witness's ability to perceive or remember

the events.

Ask yourself how the witness acted while testifying. Did

the witness appear honest, or did the witness appear to be

lying.

Ask yourself if the witness had any relationship to the

government or the defendant, or anything to gain or lose from

the case that might influence the witness's testimony.

Ask yourself if the witness had any bias or prejudice or

reason for testifying that might cause the witness to lie or

to slant the testimony in favor of one side or of the other.

Ask yourself if the witness testified inconsistently

while on the witness stand, or if the witness said or did

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something, or failed to say or do something, at any other time

that is inconsistent with what the witness said while

testifying.

If you believe that the witness was inconsistent, ask

yourself if this makes the witness's testimony less

believable. Sometimes it may; other times it may not.

Consider whether the inconsistency was about something

important or about some unimportant detail. Ask yourself if

it seemed like an innocent mistake, or if it seemed

deliberate.

And ask yourself how believable the witness's testimony

was in light of all the other evidence. Was the witness's

testimony supported or contradicted by evidence that you find

believable.

If you believe that a witness's testimony was

contradicted by other evidence, remember that people sometimes

forget things, and even two honest people who witness the same

event may not describe it in exactly the same way.

These are only some of the things that you may consider

in deciding how believable each witness was. You may also

consider other things that you think shed some light on the

witness's believability.

Use your common sense and your everyday experience in

dealing with other people, and then decide what testimony you

believe and how much weight you think it deserves.

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As to number of witnesses. Sometimes jurors wonder if

the number of witnesses who testified makes any difference.

Do not make any decisions based on the number of witnesses who

testified.

What is important is how believable the witnesses were,

and how much weight you think their testimony deserves.

Concentrate on that, not the numbers, and keep in mind that

the defendant is not obligated to present any evidence at all.

The government have agreed or stipulated to certain

facts, therefore, when I instruct you that a fact has been

stipulated to or agreed upon, you must accept the fact as

proved.

As to the lawyers' objections. The lawyers for both

sides objected to some of the things that were said or done

during the trial. Do not hold that against either side. The

lawyers have a duty to object whenever they think that

something's not permitted by the rules of evidence. Those

rules are designed to make sure that both sides receive a fair

trial.

And do not interpret my rulings on their objections as

any indication of how I think the case should be decided. My

rulings were based on the rules of evidence, not on how I feel

about the case. Remember that your decision must be based

only on the evidence that you saw and heard here in court.

Defining the crimes. I've now concluded the part of my

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instructions in explaining your rules and the general rules

that apply in every criminal case.

In a moment, I will explain the elements of the crimes

that the defendant is accused of committing. But before I do

that, I want to emphasize that the defendant is only on trial

for the particular crimes charged in the indictment. Your job

is limited to deciding whether the government has proved the

crimes charged in the indictment.

Also, keep in mind that whether anyone else might have

also been involved or should be prosecuted for any of the

crimes is not a proper matter for you to consider. The

possible involvement of others is no defense to a criminal

charge. Your job is to decide if the government has proved

this defendant, Yanjun Xu, guilty or not.

Now as to separate considerations when multiple charges.

The defendant has been charged with more than one offense.

The number of charges is no evidence of guilt, and this should

not influence your decision in any way. It's your duty to

separately consider the evidence that relates to each charge,

and to return a separate verdict for each one

For each charge, you must decide whether the government

has presented proof beyond a reasonable doubt that the

defendant is guilty of that particular charge.

Your decision on one charge, whether it's guilty or not

guilty, should not influence your decision on any of the other

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charges.

All right. Here's an overview.

Counts 1 and 2 of the indictment charge the defendant

with two distinct counts of conspiracy; specifically,

conspiracy to commit economic espionage, Count 1; and

conspiracy to commit trade secret theft, Count 2.

Counts 3 and 4 of the indictment charge the defendant

with two distinct counts of attempt; specifically, attempt to

commit economic espionage, Count 3; and attempt to commit

trade secret theft, Count 4.

The defendant is not charged with actually committing the

crimes of economic espionage and/or trade secret theft, but

it's also a crime to conspire or attempt to commit economic

espionage and trade secret theft.

However, before I instruct you on the elements of

conspiracy and attempt, you must understand the underlying

crimes of economic espionage and trade secret theft so that

you can go on to consider whether the government has proved

beyond a reasonable doubt that the defendant committed the

charged crimes of conspiracy or attempt.

So I'll start by explaining the crimes of economic

espionage and trade secret theft. Again, these are not the

crimes that the defendant is charged with committing. You

merely need to know what they are so that you can fully

deliberate as to the actual charged offenses, which I will

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explain momentarily.

As to economic espionage and trade theft secret. First,

economic espionage. A person commits the crime of economic

espionage if he intending or knowing that the offense will

benefit any foreign government, foreign instrumentality or

foreign agent, knowingly does any of the following: Steals,

or without authorization appropriates, takes, carries away, or

conceals, or by fraud, artifice, or deception obtains a trade

secret; or without authorization copies, duplicates, sketches,

draws, photographs, downloads, uploads, alters, destroys,

photocopies, replicates, transmits, delivers, sends, mails,

communicates, or conveys a trade secret; or receives, buys, or

possesses a trade secret, knowing the same to have been stolen

or appropriated, obtained, or converted without authorization.

As to trade secret theft. A person commits the crime of

trade secret theft if he, with intent to convert a trade

secret, it is related to a product or service used or intended

for use in interstate or foreign commerce to the economic

benefit of anyone other than the owner thereof, and intending

or knowing that the offense will injure any owner of that

trade secret knowingly does any of the following:

A, steals, or without authorization appropriates, takes,

carries away, or conceals, or by fraud, artifice, or deception

obtains such information.

Or B, without authorization copies, duplicates, sketches,

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draws, photographs, downloads, uploads, alters, destroys,

photocopies, replicates, transmits, delivers, sends, mails,

communicates, or conveys such information.

Or C, receives, buys, or possesses such information,

knowing the same to have been stolen or appropriated,

obtained, or converted without authorization.

Okay. Charged offenses. Now that I have explained the

crimes of economic espionage and trade secret theft, I can

tell you about the actual charges the defendant faces.

Again, the defendant is not charged with actually

committing the crimes of economic espionage and trade secret

theft, but it is also a crime to conspire or attempt to commit

economic espionage and/or trade secret theft. That is what

the indictment charges the defendant with here, and that is

what the government must prove, crimes of conspiracy and

attempt.

Specifically, the indictment charges the defendant with

four counts:

One, conspiracy to commit economic espionage.

Two, conspiracy to commit trade secret theft.

Three, attempt to commit economic espionage.

And, four, attempt to commit trade secret theft.

I will now give you the elements of each of these four

charged counts. You must consider each of the four charged

counts and determine whether or not the government has met its

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burden to prove every element of that count beyond a

reasonable doubt.

First, I will give you a brief overview and some rules

regarding the crime of conspiracy, and I will read to you the

allegations and the elements for the two conspiracy counts,

Counts 1 and 2. Then I'll give you further instructions that

are relevant to Counts 1 and 2.

After that, I'll give you a brief overview regarding the

crime of attempt, and I will read to you the allegations and

the elements of the two attempt counts, Counts 3 and 4. I

will then give you further instructions that are relevant to

Counts 3 and 4.

Finally, I will provide you with some general

instructions and explain some relevant terms that are

applicable to all four counts.

I've chosen to state these at the end so as to avoid

repeating them for you over and over but, bear in mind, you'll

need to refer to these instructions as well as you deliberate.

If you decide that the government has met its burden to

prove each of the elements of a particular count beyond a

reasonable doubt, then you must render a verdict of guilty as

to that particular count.

If you decide that the government has not proved each of

the elements of a particular count beyond a reasonable doubt,

then you must render a verdict of not guilty as to that

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particular count.

As to conspiracy generally. Conspiracy is a kind of

criminal partnership. It's a crime for two or more persons to

conspire or agree to commit a criminal act and to perform an

overt act to advance that conspiracy, even if they never

actually achieve their ultimate goal.

Now, some of the people who may have been involved in

these events are not on trial. This does not matter. There's

no requirement that all members of a conspiracy be charged and

prosecuted or tried together in one proceeding.

Also, there's no requirement that the names of the other

conspirators be known. An indictment can charge a defendant

with a conspiracy involving people whose names are not known,

as long as the government can prove that the defendant

conspired with one or more of them. Whether they are named or

not named does not matter.

The defendant is charged with two counts of conspiracy in

this case. One conspiracy count is charged in Count 1, the

other is charged in Count 2. The charges are distinct

offenses and you must consider each of them carefully.

As to Count 1, conspiracy to commit economic espionage.

Count 1 of the indictment charges the defendant, Yanjun Xu,

with conspiracy to commit economic espionage, in violation of

federal law.

As to the allegations relating to the object of the

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conspiracy, the indictment alleges that from in or about 2013,

and continuing until at least April 1, 2018, in the Southern

District of Ohio and elsewhere, the defendant, Yanjun Xu, aka

Xu Yanjun, aka Qu Hui, aka Zhang Hui, and coconspirator Chen

Feng, along with others known and unknown, did knowingly

combine, conspire, confederate or agree to, (a), steal, or

without authorization appropriate, take, carry away, or

conceal, or by fraud, artifice, or deception, obtain a trade

secret; or without authorization copy, duplicate, download,

upload, photocopy, replicate, transmit, deliver, send, mail,

communicate, or convey a trade secret; or, (c), receive, buy,

or possess a trade secret, knowing the same to have been

stolen or appropriated, obtained, or converted without

authorization, and did so intending and knowing that the

offense will benefit the Chinese government or any agent,

agency, ministry, bureau, or institution within its control,

namely Yanjun Xu, other MSS officers, NUAA, and the People's

Republic of China.

As to the elements, conspiracy to commit economic

espionage. For you to find the defendant guilty of the

offense of conspiracy to commit economic espionage, you must

find that the government has proved each and every one of the

following elements beyond a reasonable doubt:

First, that from in or about 2013, and continuing at

least until April 1, 2018, two or more persons conspired, or

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agreed, to commit the crime of economic espionage. See

page 16 in the allegations above.

Second, that the defendant knowingly and voluntarily

joined the conspiracy.

And, third, that a member of the conspiracy performed at

least one overt act for the purpose of advancing or helping

the conspiracy.

If you're convinced that the government has proved all of

these elements beyond a reasonable doubt, say so by returning

a guilty verdict on Count 1.

If you have a reasonable doubt about any one of these

elements, then you must find the defendant not guilty of

Count 1.

As to Count 2, conspiracy to commit trade secret theft.

Count 2 charges the defendant, Yanjun Xu, with conspiracy to

commit trade secret theft, in violation of federal law.

As to the allegations relating to the object of the

conspiracy, the indictment states that from in or about 2013,

and continuing to at least April 1, 2018, in the Southern

District of Ohio and elsewhere, the defendant, Yanjun Xu, the

defendant, also known as Xu Yanjun, Qu Hui, Zhang Hui, and

coconspirator Chen Feng, along with others known and unknown,

did knowingly combine, conspire, confederate, or agree to,

(a), steal, or without authorization appropriate, take, carry

away, or conceal, or by fraud, artifice, or deception obtain a

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trade secret; or (b), without authorization copy, duplicate,

download, upload, photocopy, replicate, transmit, deliver,

send, mail, communicate, or convey a trade secret; or (c),

receive, buy, or possess a trade secret, knowing the same to

have been stolen or appropriated, obtained, or converted

without authorization, and did so with intent to convert a

trade secret to the economic benefit of anyone other than the

owner of the trade secret, and intending and knowing that the

offense will injure any owner of that trade secret.

As to the elements. For you to find the defendant guilty

of the offense of conspiracy to commit trade secret of theft,

you must find that the government has proved each and every

one of the following elements beyond a reasonable doubt.

First, that from in or about 2013, and continuing until

at least April 1, 2018, two or more persons conspired, or

agreed, to commit the offense of trade secret theft. See

page 16 in the allegations above.

Second, that the defendant knowingly and voluntarily

joined the conspiracy.

And, third, that a member of the conspiracy performed at

least one overt act with a purpose of advancing or helping the

conspiracy.

If you are convinced that the government has proved all

of these elements beyond a reasonable doubt, say so by

returning a guilty verdict on Count 2.

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If you have a reasonable doubt about any one of these

elements, then you must find the defendant not guilty of

Count 2.

Counts 1 and 2, general instructions and relative terms.

Now I will provide you with some instructions on the law and

explain some of the terms relevant to Counts 1 and 2.

One, proof regarding trade secrets. For purposes of

Counts 1 and 2, it is not necessary for the government to

prove that any trade secrets were actually, one, stolen,

without authorization appropriated, taken, carried away, or

concealed, or obtained by fraud, artifice, or deception.

Two, copied, duplicated, or sketched, drawn, altered,

photocopied, replicated, transmitted, delivered, sent,

communicated, or conveyed without authorization.

Or three, received, bought, or possessed without

authorization.

This is because the crime of conspiracy is complete upon

two or more persons entering into an agreement to violate the

law, and any of the -- and any member of the conspiracy

performing an overt act to advance the conspiracy.

For purposes of Counts 1 and 2, the government must only

prove that the conspiracy intended to target information that

the conspirators believed to be trade secrets. Whether or not

the targeted information actually was a trade secret is not

relevant.

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Two, as to agreement, with regard to the first element, a

criminal agreement. The government must prove that two or

more persons conspired or agreed to cooperate with each other

to commit the crime of economic espionage.

This does not require proof of any formal agreement,

written or spoken, nor does this require proof that everyone

involved agreed on all the details, but proof that people

simply met together from time to time and talked about common

interests or engaged in similar conduct is not enough to

establish a criminal agreement.

These are things that you may consider in deciding

whether the government has proved an agreement, but without

more, they're not enough.

What the government must prove is that there was a mutual

understanding, either spoken or unspoken, between two or more

people, to cooperate with each other to commit the crime of

economic espionage. This is essential.

What the government must prove is that there was a mutual

understanding. I believe I read that to you.

D, an agreement must be made -- can be proved indirectly,

by facts and circumstances which lead to a conclusion that an

agreement existed. But it's up to the government to convince

you that such facts and circumstances existed in this

particular case.

As to three, the defendant's connection to the

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conspiracy. If you are convinced that there was a criminal

agreement, then you must decide whether the government has

proved that the defendant knowingly and voluntarily joined

that agreement.

To convict a defendant, the government must prove that

the defendant knew the conspiracy's main purpose, and that he

voluntarily joined it intending to help advance or achieve its

goals.

This does not require proof that a defendant knew

everything about the conspiracy, or everyone else involved, or

that he was a member of it from the very beginning. Nor does

it require proof that a defendant played a major role in the

conspiracy, or that his connection to it was substantial. A

slight role or connection may be enough.

But proof that a defendant simply knew about a

conspiracy, or was present at times, or associated with

members of the group, is not enough, even if he approved of

what was happening or did not object to it.

Similarly, just because a defendant may have done

something that happened to help a conspiracy does not

necessarily make him a conspirator. These are things that you

may consider in deciding whether the government has proved

that a defendant joined a conspiracy, but without more, they

are not enough.

A defendant's knowledge can be proved indirectly by facts

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and circumstances which lead to a conclusion that he knew the

conspiracy's main purpose, but it's up to the government to

convince you that such facts and circumstances existed in this

case.

As to overt acts. The third element that the government

must prove is that a member of the conspiracy performed an

overt act for the purpose of advancing or helping the

conspiracy.

The government alleges a number of overt acts. However,

the government does not have to prove that all these acts were

committed. The government does not have to prove that any of

these acts were themselves illegal, but the government must

prove beyond a reasonable doubt that at least one of these

acts was committed by a member of the conspiracy, and that it

was committed for the purpose of advancing or helping the

conspiracy. This is essential.

I will now provide you a list of the overt acts that the

government has alleged. Bear in mind that these are merely

allegations for your consideration and relate to the third

elements of Counts 1 and 2.

In furtherance of the conspiracy and to achieve the

objects and purposes thereof, Defendant Xu and others

committed and caused to be committed the following overt acts,

among others, in the Southern District of Ohio and elsewhere:

A, on or about December 26, 2013, the defendant discussed

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an upcoming expert exchange with an MSS colleague. These are

allegations. Within the messages, defendant stated that "the

customer doesn't know our identities. I approached him with

the identity of Qu Hui, the deputy secretary-general of

Science and Technology Association."

The defendant's colleague acknowledged it and, quote, got

it. I'll make sure everybody here knows you're from the

Nanjing Science and Technology Association, end quote.

B, on or about April 22, 2014, defendant sent a message

to an MSS colleague regarding another upcoming, quote,

exchange, unquote, with an expert. The defendant reminded the

colleague of two things. Quote, one, the expert does not know

my true identity. I approached him with the same name under

Jiangsu Science and Technology Association; two, do not

mention about the materials, end quote.

C, beginning in at least by March 2017, unindicted

coconspirators Chen Feng began corresponding by email with

David Zheng, Z-h-e-n-g, employed by GE Aviation as an engineer

since 2012.

Unindicted coconspirator Chen Feng solicited Zheng to

come to NUAA in China for a, quote, exchange, end quote, based

on Zheng's engineering experience at GE Aviation. NUAA,

through unindicted coconspirator Chen Feng, offered to pay for

Zheng's travel expenses.

D, on May 10, 2017, unindicted coconspirator Chen Feng

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emailed Zheng that the, quote, Institute of Energy and Power,

end quote, had proposed that Zheng give a report on

GE Aviation's signature material design and manufacturing

technology.

Unindicted coconspirator Chen Feng wanted Zheng to focus

on highly technical topics, including the latest developments

in the application of GE Aviation's signature material used in

aero engines, as well as engine structure design analysis

technology and manufacturing technology development.

E, on May 15, 2017, in preparation for the trip to China

to present at NUAA, a message was sent to Zheng from one of

defendant's email accounts, but the email was signed using the

name of unindicted coconspirator, Chen Feng.

F, while Zheng was in China, unindicted coconspirator

Chen Feng introduced Zheng to the defendant. During this

meeting, the defendant introduced himself using his alias, Qu

Hui, and claimed to be from JAST in China.

Defendant gave a business card to Zheng that contained

his alias, Qu Hui, and contact information associated with

JAST, a cover affiliation for defendant.

G, on June 2, 2017, at the invitation and direction of

defendant and unindicted coconspirator Chen Feng, Zheng gave a

presentation at NUAA in China, which included details

regarding engines that were designed and produced by

GE Aviation.

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H, defendant had meals with Zheng both before and after

the NUAA presentation.

I, defendant and others caused Zheng to be paid $3,500 in

U.S. currency for the presentation and as reimbursement for

expenses incurred during Zheng's visit to Nanjing; e.g. meals

and hotel expenses.

J, after the trip to China, defendant continued to

communicate with Zheng. In fact, defendant invited Zheng to

return to NUAA the following year.

K, on November 21, 2017, unindicted coconspirator Chen

Feng expressed an interest in having Zheng travel to China to

exchange ideas and instruct them again at NUAA.

Unindicted coconspirator Chen Feng informed Zheng that he

had spoken with Qu Hui, defendant, from JAST, and that Qu Hui

would be able to help with travel expenses and handle the

details of the, quote, exchange, end quote.

L, on or about January 8, 2018, defendant wrote to Zheng,

quote, I will touch base with the scientific research

department here to see what technology is desired. I will let

you know what to prepare. For your end, please prepare the

plane ticket and date as soon as possible, end quote.

M, on or about January 23, 2018, defendant wrote to

Zheng, quote, okay. Try your best to collect and we can talk

by then. Domestically, there is more focused on the system

code, end quote. Defendant later elaborated that the

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information he wanted pertained to, quote, system

specification, design process, end quote, which is the

application of research data to engine production.

Defendant provided an email address for Zheng to use to

send the requested information. When Zheng informed defendant

that the email may be blocked if Zheng used the company

computer, defendant responded, quote, it might be

inappropriate to send directly from the company, right? end

quote.

N, on or about February 3, 2018, defendant caused Zheng

to send an excerpt of presentation from GE Aviation pertaining

to, quote, containment analysis, end quote, for a fan blade

encasement.

The document contained a label warning that the

presentation contained proprietary information from

GE Aviation.

O, on February 4, 2018, defendant wrote to Zheng and

acknowledged receiving the document from GE Aviation

pertaining to the, quote, containment analysis, end quote.

Defendant stated that he wanted Zheng to spend time talking

with the experts in China for a, quote, more precise

connection, end quote, and proposed a meeting date.

P, in the same message, defendant sent Zheng a list of

technical topics pertaining to composite materials in the

manufacture of fan blades and fan blade encasements that the

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defendant's organization was being interested in, after being

sent information that contained GE Aviation's proprietary

warning label.

Specifically, defendant wrote the, quote, attached file

is some domestic requirements that I know of. Can you take a

look and let me know if you're familiar with these, end quote.

The attached list stated the following: Regarding the

current development situation and future development situation

of foreign countries' structural materials for fan rotor

blades made from composite materials. A question followed.

Regarding the design criteria for the foreign countries'

composite material rotor fan blade, stator fan blade, and fan

casing. A list of questions followed.

Q, when Zheng directly advised defendant that some of the

posed questions involved GE Aviation's commercial secrets,

defendant replied they would discuss it when they met in

person.

R, in February 2018, Xu also began discussing with Zheng

the possibility of meeting in Europe during one of Zheng's

business trips.

S, on or about February 5, 2018, Xu asked Zheng to create

and sort a directory of the files on Zheng 's computer

relating to the files of GE Aviation.

Defendant asked Zheng to send a copy of the file

directory to Zheng's company-issued computer. Defendant sent

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specific directions for how Zheng should sort and save such a

directory.

T, on or about February 14, 2018, defendant caused Zheng

to send a computer file directly from Zheng's company-issued

computer to defendant.

U, on February 28, 2018, defendant requested to speak

with Zheng by telephone. During the phone call, defendant

referred to the file directory that Zheng sent at defendant's

request. Defendant told Zheng that, quote, they, end quote,

had looked at it and it is, quote, pretty good stuff, end

quote.

Defendant asked if Zheng would be able to bring it with

Zheng when Zheng traveled to Europe for their meeting. Xu

further stated, quote, the computer you will bring along is

the company computer, right? end quote.

Defendant also asked if the material Zheng intended to

bring could be exported out of the computer. When Zheng

informed defendant that it could be exported on to a portable

hard drive, defendant replied, quote, good, good, good, end

quote.

Defendant asked, quote, so, if possible, we will look

over the stuff. Can we do that? end quote. After Zheng

agreed to defendant's request, the defendant stated, quote, do

you understand? Carry the stuff along, end quote.

V, later in the conversation, on February 28, 2018,

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defendant told Zheng that what Zheng had sent so far was,

quote, good enough, end quote.

The defendant continued, quote, if we need something new

later, we can talk about that in person when we meet. What do

you think? All right. We really don't need to rush to do

everything in one time because if we're going to do business

together, this won't be the last time, right? end quote.

W, on March 4, 2018, Zheng informed defendant that some

of the documents identified on the company directory were

generated from a specific software and, as a result, some

documents could only be viewed and backed up when connected to

GE Aviation's network.

In response, defendant asked, quote, does that mean I

will not be able to view these documents after I bring them

back? end quote.

Zheng replied that Zheng did not know because Zheng had

never tried to open the files while in China.

X, on March 5, 2018, defendant sent Zheng a message

asking, quote, regarding the document directory you sent last

time, is it possible to dump it to a portable hard drive or

USB drive from work computer in advance? end quote.

Y, on March 10, 2018, defendant sent Zheng a message

stating, quote, since there's still time, download more data

and bring them back. Anything design related would work, end

quote.

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On or about April 1, 2018, defendant traveled to the

Kingdom of Belgium to meet Zheng for the purpose of discussing

and receiving the sensitive information he had requested.

Those are the overt acts alleged by the government. The

fact that I read them out loud doesn't change the fact that

they are allegations.

Now, as to attempt, generally. Attempting to commit

either economic espionage or a trade secret theft is a crime

under the law.

The defendant is charged with two counts of attempt in

this case. One attempt count is charged in Count 3, attempt

to commit economic espionage, and the other is charged in

Count 4, attempt to commit trade secret theft.

The charges are distinct offenses and you must consider

each of them carefully.

Count 3, attempt to commit economic espionage. As to the

allegation, the indictment alleges that from in or about

May 2017, and continuing to at least April 1, 2018, in the

Southern District of Ohio and elsewhere, the defendant, Yanjun

Xu, a/k/a Xu Yanjun, a/k/a Qu Hui, a/k/a Zhang Hui,

A, did knowingly attempt to steal or without

authorization appropriate, take, carry away, or conceal, or by

fraud, artifice, or deception, obtain trade secret information

owned by GE Aviation; or

B, did so intending and knowing that the offense will

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39

benefit the Chinese government and/or any agent, agency,

ministry, bureau, or institution within its control, namely

Yanjun Xu, other MSS officers, NUAA, and the People's Republic

of China.

As to the elements. For you to find the defendant guilty

of the attempting to commit economic espionage, you must find

that the government has proved each and every one of the

following elements beyond a reasonable doubt.

First, that from in or about May 2017, and continuing to

at least April 1, 2018, the defendant, Yanjun Xu, intended to

commit the crime of economic espionage. See page 16 and the

allegations above.

And, second, that the defendant performed some overt act

that was a substantial step towards committing the crime of

economic espionage. See page 16 and the allegations above.

If you are convinced that the government has proved all

of these elements beyond a reasonable doubt, say so by

returning a guilty verdict on Count 3.

If you have a reasonable doubt about any one of these

elements, then you must find the defendant not guilty of

Count 3.

As to Count 4, attempt to commit trade secret theft. As

to the allegations, the indictment says, alleges that from in

or about May 2017, and continuing to at least April 1, 2018,

in the Southern District of Ohio and elsewhere, the defendant

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did knowingly attempt to steal, or without authorization

appropriate, take, carry away, or conceal, or by fraud,

artifice, or deception, obtain trade secret information owned

by GE Aviation, which was related to or included in a product

or service used in or intended for use in interstate and

foreign commerce; and

B, did so with the intent to convert a trade secret to

the economic benefit of someone other than GE Aviation, and

intending and knowing that the offense would injure

GE Aviation.

As to the elements of Count 4. For you to find the

defendant guilty of the offense of attempting to commit trade

secret theft, you must find that the government has proved

each and every one of the following elements beyond a

reasonable doubt.

First, that from in or about May 2017, and continuing at

least until April 1, 2018, the defendant intended to commit

the crime of trade secret theft. See page 16 and the

allegations above.

And, second, that the defendant performed some overt act

that was a substantial step toward committing the crime of

trade secret theft. See page 16 and the allegations above.

If you're convinced that the government has proved all of

these elements beyond a reasonable doubt, say so by returning

a verdict of guilty on Count 4. If you have a reasonable

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doubt about any one of these elements, then you must find the

defendant not guilty of Count 4.

Now as to Counts 3 and 4, general instructions and

relevant terms. Let me explain some of the terms and provide

you with some instructions relevant to Counts 3 and 4.

Proof regarding trade secrets. For purposes of Counts 3

and 4, it's not necessary for the government to prove that any

trade secrets were actually stolen, without authorization

appropriated, taken, carried away, or concealed, or obtained

by fraud, or artifice, or deception.

Two, copied, duplicated, sketched, drawn, altered,

photocopied, replicated, transmitted, delivered, sent,

communicated, or conveyed without authorization, or three,

received, bought, or possessed without authorization.

This is because the crime of attempt is complete upon the

defendant intending to violate the law and performing an overt

act that qualifies as a substantial step toward committing the

crime.

B, for purposes of Counts 3 and 4, the government must

only prove that the defendant intended to target information

that the defendant believed to be trade secrets. Whether or

not the targeted information was actually a trade secret is

not relevant.

Two, as to substantial step. The second element requires

the government to prove that the defendant performed an overt

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act that was a substantial step toward committing the crime.

B, merely preparing to commit a crime is not a

substantial step. The defendant's conduct must go beyond mere

preparation, and must strongly confirm that he intended to

commit economic espionage for Count 3, or trade secret theft

for Count 4.

But the government does not have to prove that the

defendant did everything except the last act necessary to

complete the crime. A substantial step beyond mere

preparation is enough.

As to overt acts. The government alleges a number of

overt acts. The government does not have to prove that all

these acts were committed, and the government does not have to

prove that any of the acts were themselves illegal.

But the government must prove beyond a reasonable doubt

that the defendant committed at least one of these acts, and

that it was a substantial step toward committing the crime.

This is essential.

In determining whether the defendant performed an overt

act for purposes of Counts 3 and 4, please see the list which

I read and is provided on pages 25 to 29 of these

instructions, but exclude the acts listed under (c) and (d) of

the list.

I decline to read you aloud pages 25 to 29 again.

As to all counts. General instructions and relevant

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terms. Trade secret. The term trade secret means all forms

and types of financial, business, scientific, technical,

economic, or engineering information, including patterns,

plans, compilations, program devices, formulas, designs,

prototypes, methods, techniques, processes, procedures,

programs, or codes, whether tangible or intangible, and

whether or how stored, compiled, or memorialized physically,

electronically, graphically, photographically, or in writing

if,

A, the owner thereof has taken reasonable means to keep

such information secret; and,

B, the information derives independent economic value,

actual or potential, from not being generally known to, and

not being readily ascertainable through proper means by

another person who can obtain economic value from the

disclosure or use of the information.

As to general instructions. One, the dates of the

alleged offenses. The indictments charge that Counts 1 and 2

happened, quote, in or about 2013, and continuing to at least

April 1, 2018, end quote.

And Counts 3 and 4 happened, quote, in or about May 2017,

and continuing to at least April 1, 2018, end quote.

The government does not have to prove that the crime

happened on those exact dates. But as to each count, the

government must prove that the crime happened reasonably close

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to the dates alleged.

Two, inferring required mental state. Intent. I want to

explain something about proving a defendant's state of mind.

Ordinarily, there is no way that a defendant's state of

mind can be proved directly because no one can read another

person's mind and tell what that person is thinking.

But a defendant's state of mind can be proved indirectly

from the surrounding circumstances. This includes things like

what the defendant said or did not say, what the defendant did

or did not do, how the defendant acted or did not act, and any

other facts or circumstances in evidence that show what is in

the defendant's mind.

You may also consider the natural and probable results of

any acts that the defendant knowingly did or did not do, and

whether it's reasonable to conclude that the defendant

intended those results.

This, of course, is all for you to decide.

As to venue. There's one final element that the

government has to prove; that is, the government must also

prove, as to each individual count, that all or part of each

alleged offense occurred within the Southern District of Ohio.

This is referred to as venue.

As to venue, the government and the defense agree and

stipulate that the proper venue for all charges is here in the

Southern District of Ohio.

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This concludes the part of my instructions in explaining

the elements of the offense.

Next I'll explain some rules you must use in considering

some of the testimony and evidence.

Defendant's right not to testify. Defendant has an

absolute right not to testify. The fact that the defendant

did not testify cannot be considered by you in any way. Do

not even discuss it in your deliberations.

Remember that it's up to the government to prove the

defendant guilty beyond a reasonable doubt. It's not up to

the defendant to prove he's innocent.

As to law enforcement witnesses, the testimony of which

you heard. The fact that a witness may be employed as a

state, federal, or foreign law enforcement official does not

mean that his testimony is necessarily deserving of more or

less consideration, or greater or lesser weight than that of

an ordinary witness.

At the same time, it's quite legitimate for defense

counsel to try and attack the credibility of a law enforcement

witness on the grounds that his testimony may be colored by a

personal or professional interest in the outcome of the case.

It's your decision, after reviewing all the evidence,

whether to accept the testimony of the law enforcement witness

and to give to that testimony whatever weight, if any, you

find it deserves.

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Now, as to opinion testimony. You heard the testimony of

James Mulvenon, Nick Kray, Rizwan Ramakwadala, and James

Olson, who testified as opinion witnesses.

You do not have to accept these witnesses' opinion. In

deciding how much weight to give their testimony, you should

consider the witness's qualifications and how he reached his

conclusions.

Also consider the other factors discussed in these

instructions for weighing the credibility of witnesses.

Remember that you alone decide how much of a witness's

testimony to believe or not to believe, and how much weight it

deserves.

Additionally, you are not to consider any opinion

testimony regarding the defendant's state of mind or his

intent. Therefore, as it relates to the testimony of James

Olson, to the extent that Mr. Olson specifically testified

that the defendant intended to steal trade secrets, you must

disregard those limited portions of his testimony.

This is because it is up to you and you alone to

determine whether the defendant intended to steal trade

secrets. See pages 39 and 40, General Instruction Number 2.

Witness testifying both to fact and opinions. You've

heard the testimony of various law enforcement witnesses, who

testified to both facts and opinions. Each of these types of

testimony should be given the proper weight.

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As to the testimony on facts, consider the factors

discussed earlier in these instructions for weighing the

credibility of witnesses. See pages 8 and 9.

As to the testimony on opinions, you do not have to

accept the witnesses' opinions.

In deciding how much weight to give a witness's opinion,

you should consider the witness's qualifications and how he

reached his conclusions, along with the other factors

described and discussed in these instructions for weighing the

credibility of witnesses.

Remember that you alone decide how much of a witness's

testimony to believe and how much weight it deserves.

As to the testimony of cooperating witnesses. You've

heard the testimony of Arthur Gao. You also heard that he had

been convicted of an offense relating to the events that he

testified about, and you heard that he had not yet been

sentenced.

Mr. Gao's conviction was in another court, before a

different judge, involving different charges and different

prosecutors.

There was no evidence that Mr. Gao was promised any

benefit in exchange for his testimony. But during his

testimony, it was implied that he may have received some

degree of leniency in his sentence, in exchange for his

agreement to testify in this case.

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Additionally, you heard the testimony of David Zheng.

You also heard that the government promised him he will not be

prosecuted in exchange for his cooperation in this case.

It is permissible for the government to make such

promises in exchange for a witness's cooperation. But you

should consider testimony of such cooperating witnesses with

more caution than the testimony of other witnesses.

Consider whether their testimony may have been influenced

by the government's promise not to prosecute the witness, or

the witness's own belief that he may have received some

benefit in exchange for his cooperation.

Do not convict the defendant based on the unsupported

testimony of such a witness, standing alone, unless you

believe his testimony beyond a reasonable doubt.

As to redaction. The Court's rules require that certain

information be redacted, covered up, from certain documents.

You should not draw any inferences from the fact that an

exhibit contains redactions.

As to foreign language evidence. During the course of

the trial, you heard the testimony of a witness who required

the use of a French interpreter.

Also during the course of the trial, the Court admitted

into evidence various exhibits that were originally in Chinese

Mandarin. For your benefit, those exhibits were translated

into English, and you were presented with both the Chinese

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original and the English translations.

The parties have agreed that the English language

translations are accurate. You must therefore accept the

English translation of the evidence as accurate and must rely

solely on the English language translations when considering

the evidence.

As to secondary evidence summaries admitted into

evidence. During the trial you've seen summary evidence in

the form of a chart or similar material. This summary was

admitted into evidence, in addition to the testimony it

summarizes, because it may assist you in understanding the

evidence that has been presented.

But the summary itself is not evidence of the material it

summarizes, and it's only as valid and reliable as the

underlying testimony it summarizes.

There was a demonstrative chart. During the trial the

government presented a demonstrative chart, which is offered

to assist in the presentation and understanding of a witness's

testimony. This material itself is not itself evidence and

must not be considered as proof of any facts.

And now as to deliberation and verdict. I've concluded

the part of my instructions explaining the rules for

considering some of the testimony and evidence. Let me finish

up by explaining some things about your deliberations in the

jury room and your possible verdicts.

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The first thing that you should do in the jury room is

choose someone to be your foreperson.

A foreperson's opinions and vote are not given greater

weight than any other juror. All jurors' votes are equal.

The foreperson will simply help to guide your

discussions, make sure everyone gets to participate fully, and

will speak for you here in the courtroom.

Once you start deliberating, do not talk to anyone; not

my staff, not me, not anyone, except for each other, about the

case.

If you have a question or message, you must write it down

on a piece of paper. The foreperson should sign it, and then

alert Ms. Santoro, who will come and retrieve the written

question from you all and will deliver it straight to me.

Ms. Santoro will show you how to call her from the jury

room.

Any questions or messages you have normally should be

sent to me through your foreperson.

Once I receive your written question or message, I will

respond as soon as I can. I likely will have to talk to the

lawyers about what you have asked, so it might take me some

time to get back to you.

In the meantime, please continue your deliberations while

you wait to hear back from me; if you're able to do so, do so.

One more thing about messages. Do not ever write down or

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tell anyone, including me, how you stand on your votes.

For example, do not write down or tell anyone that you're

split six-six, eight-four, four-eight, or whatever your vote

happens to be. That should stay secret until you are fully

finished.

Experiments, research, investigation outside

communications. No. No. No. Remember that you must make

your decision based solely on the evidence that you saw and

heard here in court.

During your deliberations, you must not communicate with

or provide information to anyone by any means about this case.

You may not use any electronic device or media, such as a

telephone, cell phone, smartphone, iPhone, iPad, computer,

laptop, the internet, any internet service, any email service,

any texts or instant messaging service, any app, any internet

chat room, blog, or website.

All of this includes, but is not limited to, Google,

Twitter, Snapchat, Instagram, Facebook, or YouTube, to

communicate to anyone any information about this case, or to

conduct any research about this case until after I accept your

verdict.

In other words, you can't talk to anyone on the phone,

correspond with anyone, or electronically communicate with

anybody about this case, and you may not do any form of

outside research.

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You can only discuss the case in the jury room with your

fellow jurors during deliberations, pursuant to my

instructions.

I expect you will inform me immediately if you become

aware of another juror's violation of these instructions.

The reason you are not permitted to conduct outside

research and to communicate with anyone other than each other

about the case is because it's important that you decide this

case based solely on the evidence presented in this courtroom.

Information available in reference materials, the news,

on the internet, or through social media might be wrong,

incomplete, inaccurate, or misleading.

You're only permitted to discuss the case with your

fellow jurors during deliberations, as they have seen and

heard the same evidence as you have.

In our judicial system, it is important that you are not

influenced by anything or anyone outside this courtroom.

Otherwise, your decision may be based on information known

only by you and not your fellow jurors or the parties in the

case.

This would unfairly and adversely impact the judicial

process.

A juror who violates these rules jeopardizes the fairness

of these proceedings and a mistrial could result, which would

require the entire trial process to start over.

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Unanimous verdict. Your verdicts as to the defendant,

whether guilty or not guilty, must be unanimous on each of the

four counts.

To find the defendant guilty, every one of you must agree

that the government has overcome the presumption of innocence

with evidence that proves the defendant's guilt beyond a

reasonable doubt.

To find a defendant not guilty, every one of you must

agree that the government has failed to convince you beyond a

reasonable doubt.

Either way, guilty or not guilty, as to each of the four

counts, your verdict must be unanimous as to each count.

As to the duty to deliberate. Now that all the evidence

is in and after closing arguments, you will be sent to the

jury room and begin to be free to talk about the case.

In fact, it's your duty to talk with each other about the

evidence, and to make every reasonable effort you can to reach

a unanimous agreement. Talk with each other. Listen

carefully and respectfully to each other's views. Keep an

open mind as you listen to what your fellow jurors have to

say. Try your best to work out any of your differences. Do

not hesitate to change your mind if you're convinced the other

jurors are right and that your original position is wrong.

But do not ever change your mind just because other

jurors see things differently or just to get the case over

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with.

In the end, your vote must be exactly that, your own

vote. It's important for you to reach a unanimous agreement

but only if you all can do so honestly and in good conscience.

No one will be allowed to hear your discussions in the

jury room, and no record will be made of what you say. So you

should all feel free to speak your minds.

Listen carefully to what the other jurors have to say,

and then decide for yourself if the government has proved the

defendant guilty beyond a reasonable doubt or not.

As to punishment. If you decide that the government has

proved the defendant guilty, then it will be my job to

determine what the appropriate punishment should be. Deciding

what the punishment should be is my job, not yours. It would

violate your oaths as jurors to even consider a possible

punishment in deciding your verdict.

Your job is to look at the evidence and decide if the

government has proven or not proven the defendant guilty

beyond a reasonable doubt.

I've prepared verdict forms that you should use to record

your verdicts. There's one verdict form for each charge.

You have separately a copy of the verdict forms.

Straightforward verdict form. Count 1, guilty or not guilty.

Everybody signs it.

Count 2, guilty or not guilty. Everybody signs it, and

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it's dated.

Count 3, guilty or not guilty. Everybody signs it, and

it's dated.

As to Count 4, same thing, guilty or not guilty, date it,

everybody signs it.

I want you all to leave the verdict forms in your chairs

when you leave. I'm not going to send a bunch of verdict

forms upstairs. We'll bring you one. It will be delivered to

the custody of the foreperson, and you all will work it

through in that regard.

You can take the jury instruction package of 56 pages

with you.

Remember that the defendant is only on trial for the

particular crimes charged in the indictment. Your job is

limited to deciding whether the government has proved or not

proved the crimes charged.

Now as to juror notes. Remember if you elected to take

notes during the trial, your notes should be used only as

memory aids. You shouldn't give your notes greater weight

than your independent recollection of the evidence.

You should rely upon your own independent recollection of

the evidence or lack of evidence, and you should not be unduly

influenced by the notes of other jurors.

Notes are not entitled to any more weight than the memory

or impression of each juror.

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Whether you took notes or not, each of you must form and

express your own opinion as to the facts of the case.

Let me finish up by repeating something I said to you

earlier and I've said all along. Nothing that I have said or

done during this trial was meant to influence your decision in

any way. You decide for yourselves if the government has

proved or not proved the defendant guilty beyond a reasonable

doubt as to each of the four counts.

That concludes my jury instructions.

Now I'm going to change my mind and ask that you leave

your jury instruction packet and the verdict forms in your

chairs when you leave. We'll get them brought up to you in

due course.

Now you've been instructed in the law, and you sat

through my reading of the 56 pages, and you stayed awake and

paid careful attention.

You're going to get a break now for 15 minutes to sort of

clear your heads, and then we will come back with closing

arguments, unless we decide after 15 minutes to send you to

lunch.

So you've earned a break by listening to me drone on, but

it was important. You're going to have a written copy of it

all, and you've been paying attention during trial. Take a

break now for 15 minutes.

No discussion of the case among yourselves. You're

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almost there. No discussion with anyone. No independent

research. Continue to keep an open mind.

You need to hear closing argument.

Out of respect for you, we'll rise as you leave for

15 minutes.

(Jury out at 11:09 a.m.)

THE COURT: The jury has left the room. The door is

closing. We're going to recess for 15 minutes. Lunch has not

been ordered until 12:45.

During the recess, if anyone wants to talk to my law

clerk about timing, feel free. I'll see you again in

15 minutes.

Court's in recess, unless there's anything further from

the government?

MR. MANGAN: Your Honor, there was one item, and I

regret we didn't mention it earlier. I know the defense

rested. We thought it might be advisable to have the

defendant on the record acknowledging that he waived his right

to testify.

THE COURT: Mr. Kohnen, can you facilitate that,

please?

MR. KOHNEN: I'm sorry, Your Honor?

THE COURT: Can you facilitate that, please?

MR. KOHNEN: Yes, Your Honor. In fact, we've already

spoken to Mr. Xu about that, and he's indicated to us that he

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is not interested in testifying on his own behalf. I'm sure

that Mr. Xu would confirm that for the Court here if that's

your wish.

THE COURT: Is that right, Mr. Xu, you do not wish to

testify?

THE DEFENDANT: No.

THE COURT: Thank you. We're in recess for

15 minutes.

(Brief recess.)

THE COURT: We're back in the courtroom. Are we

ready to proceed to closing and getting the jury from the

government's perspective?

MR. MANGAN: Yes, we are, Your Honor.

THE COURT: And the defense?

MR. KOHNEN: Yes. Thank you, Judge.

THE COURT: Very well. Let's call for the jury.

(Jury in at 11:27 a.m.)

THE COURT: Thank you. You may all be seated. The

15 members of the jury have rejoined us after a break.

We're now going to proceed to closing argument.

The government goes first, followed by the defense. The

government gets the last word.

I think we'll break for lunch after the government's

closing argument.

Is the government prepared to proceed?

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MR. MANGAN: We are, Your Honor.

THE COURT: Very well.

MR. MANGAN: Before I begin, Your Honor, we would

like to reserve some time for rebuttal.

THE COURT: Very well.

MR. MANGAN: May I proceed?

THE COURT: Yes, please.

(Excerpt of Proceedings Concluded at 11:30 a.m.)

* * *

C E R T I F I C A T E

- - -

I, M. SUE LOPREATO, RMR, CRR, certify that the foregoing

is a correct transcript from the record of proceedings in the

above-entitled matter.

/s/ M. Sue Lopreato______ February 13, 2022

M. SUE LOPREATO, RMR, CRR

Official Court Reporter

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