UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF OHIO 

WESTERN DIVISION 

- - - 

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

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

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 Plaintiff, . In-Person Status Conference

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 - v - . 

. Wednesday, December 19, 2018 

YANJUN XU, . 12:03 PM 

. 

 Defendant. . Cincinnati, Ohio 

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TRANSCRIPT OF PROCEEDINGS 

BEFORE THE HONORABLE TIMOTHY S. BLACK, JUDGE 

For the Plaintiff: TIMOTHY S. MANGAN, ESQ. 

EMILY N. GLATFELTER, ESQ. 

Assistant U.S. Attorneys 

United States Attorney's Office 

221 East Fourth Street, Suite 400 

Cincinnati, Ohio 45202 

For the Defendant: 

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

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

Taft Stettinius & Hollister LLP 

 LLP 1717 Dixie Highway 

425 Walnut Street, Suite 1800 Suite 910 

Cincinnati, Ohio 45202-3957 Covington, Kentucky 41011 

Law Clerk: Cristina V. Frankian, Esq. 

Courtroom Deputy: Scott M. Lang 

Court Reporter: Luke T. Lavin, RDR, CRR 

Potter Stewart U.S. Courthouse 

100 East Fifth Street, Room 103 

Cincinnati, Ohio 45202 

Telephone: (513) 564-7500 

Proceedings recorded by stenotype; transcript

prepared by computer-aided transcription.

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 P R O C E E D I N G S 

(In open court at 12:03 PM.)

THE COURT: Please be seated.

Good afternoon. We're here in the open courtroom on the

record on the criminal docket in the matter of United States of

America versus Mr. Xu. We are here for a status report.

Would the attorneys begin by entering their appearances.

Who appear as the attorneys for the United States of America?

MR. MANGAN: Your Honor, Tim Mangan and Emily

Glatfelter on behalf of the United States.

THE COURT: Good afternoon to both of you.

And on behalf of the defendant?

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

on behalf of Mr. Xu. My colleagues Jeanne Cors and Bob McBride

are with me as well.

MR. McBRIDE: Good afternoon, Your Honor.

THE COURT: Good afternoon to the three of you.

We have a quorum. We are here for a status report. The

Court issued the agreed protective order that you all worked

out with significant work in mid-November. The Court really

has nothing to report from its perspective and is eager to hear

status from each of your perspectives.

So on behalf of the government, where are we on status? Is

there anything the Court can assist with at this point?

MR. MANGAN: Sure, Your Honor. Just as far as an

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update, we've given the defense what I'd call our first wave or

first tier of discovery related to the core allegations in the

Indictment. That's been provided to them.

We are working on sort of a secondary collection that we

hope to have produced and ready to go sometime in January after

we get through the holidays, but we're working on getting that

together. That includes some forensics that are ongoing and

some translations that are ongoing. But we do hope to have the

second wave, which we think would be the bulk of everything

between these first two waves, and have that completed sometime

in January.

The other piece of this that's going on simultaneously is

us working on preparing a CIPA filing where we would summarize

for the Court what there is in terms of classified information

and how the government would propose the Court to treat it

under the CIPA act.

We are still working on that. That's going to still take a

little bit of time. I think, given -- and part of that is just

the complexities in terms of making sure that we have

everything and having it summarized accurately and providing it

in the right format for the Court. So we would ask -- or we

would expect to be able to file that motion sometime in March,

is what we would anticipate if that's agreeable to the Court.

I realize, as part of that, the Court assesses the information

in light of what is anticipated to be the defense's -- the

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defendant's defenses, I should say, and so, at least in the

normal course, they would ex parte submit to the Court what

they anticipate their defenses would be so that the Court can

evaluate whether or not the information is or is not helpful to

the defense. I don't know when the defense would be ready to

present that part to the Court. But as far as our filing, we

would anticipate sometime in March, if that works.

THE COURT: Very well.

What's the status from the defendant's perspective?

MR. KOHNEN: Your Honor, with your permission, I may

ask Ms. Cors and Mr. McBride to help me here this afternoon,

but I'll start.

I think the best thing to do is to start with letting the

Court know that we're anxiously awaiting the discovery. We

expect that there may be some translation issues, some

interpretation issues. The most prominent one that I think the

Court should just be advised of is that it appears the

government is going to turn over to us untranslated material,

material that they -- from what we know so far, they are going

to decide what is Rule 16 material which has to be turned over

because it's going to be intended for use at trial, but not

translate other material.

I expect that we're going to have a little bit of a

disagreement that we may have to approach the Court about. Our

concern is that there will be Brady, Jencks and Giglio material

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amongst the untranslated information.

Of course, it's the government's burden to turn over such

information that's in their possession. They obviously will

have translated this material to some extent to decide whether

it qualifies as Rule 16 discovery, and so we're going to be

asking them, and I think probably asking the Court to direct

them, to translate everything that they turn over into English.

We're also anxiously awaiting discovery, because our client

is anxiously awaiting his trial. We have not done the

research, although we are beginning it, to determine whether or

not a CIPA case automatically makes one a complicated case or

if there are other factors in this case that would create sort

of a de facto Rule 3161(h) complicated case situation, but --

and as I'm sure the Court will understand, our client is

interested in getting this under way as quickly as possible.

His interest comes in part from the conditions under which

he's being held. He is being held in solitary confinement in a

federal correctional institution. He's in his room 23 hours --

I should say his cell -- 23 hours a day. His attorneys have to

travel five hours each way to meet with him. We're only able

to meet with him on certain days of the week, one of which is a

Monday, which makes Sunday evening very interesting. And his

communication with his family and the outside world is sparse

at best, limited to two 15-minute calls per week when the mood

strikes his jailers.

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That's just a high-level summary of the difficulties he's

encountering there, Your Honor. We understand that, in the

first instance at least, it is up to the U.S. Marshals Service,

which is part of the Department of Justice, to determine where

a prisoner that's been ordered detained is housed. We don't

have any objection with Magistrate Judge Bowman's conclusion

about detention, but we have some serious problems with his

conditions.

So I think the wise way to put it is, we're also giving the

Court advance notice that we're likely -- "we," defense

counsel -- are likely to start encountering Sixth Amendment

problems. We're already encountering them, but insurmountable

Sixth Amendment problems could arise if we don't get,

collectively, this situation straightened out.

If you'll give me a moment to check with my co-counsel.

THE COURT: Yes.

MR. KOHNEN: Anything else?

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

MR. KOHNEN: We've been working cooperatively with the

United States, Your Honor. They've been hospitable. We'd like

to get the train rolling as quickly as possible to get this

case under way.

THE COURT: What's the government make of all that?

MR. MANGAN: If I could kind of break it into two,

Your Honor.

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THE COURT: Yes.

MR. MANGAN: First, regarding the discovery part and

the translation -- and maybe the best way to do is to give you

an example. I think part of what Mr. Kohnen's talking about

is, for example, the government gathered a cloud account that

the defendant had, and so that's used as like a backup for his

various devices. It would include messages and other data that

was stored on this cloud account.

It's large. It's voluminous. In order for the government

to analyze it, the government has not been going through and

translating every line. They've been doing essentially keyword

searches for things that, at least in our estimation, we would

deem relevant. And then what the process is, is when they see

something that hits, they go through kind of a rough

translation to triage it and determine is this, you know, what

we were looking for or not? If something we deem is relevant,

then it goes to sort of a final translation process to where

there's actually certified translators who sign off on it and

say this is a correct translation.

In order for us to do that, it would be impractical for us

to try to translate the entire cloud account under that final

format. So what we were proposing to do, first of all, was, to

satisfy our discovery obligations, was, one, give them an image

of the entire account so that they have what we have, which

would -- obviously, the original, you know, is not translated.

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You know, it's in its original format. We would give them that

image so that they have everything and they can analyze it and

they can use whatever keyword searches they want to do and

they're not beholden to the government's mode of analysis. 

At the same time what we said is, look, what we plan to

use, anything that we find that we plan to use, we will give

you translations of, you know, here's what we found, here's

what we plan to use. If we didn't give you a translation, you

know, we will say we're not going to use it, so that they at

least know the universe with which we plan to use and prosecute

our case.

So that's what we're doing. It is sort of on a dual track

where we would give them the original, untranslated, of the

entire account, and then we were going to give them

translations of what the government would intend to use.

I understand they may want to analyze it further, and

that's certainly their right. We'd encourage them to do so.

But I don't know that it would make sense for either side to

try to go through and get a final translation of every single

thing that's in there.

You know, you're talking about -- you know, you could have

spam e-mails, you could have just things that are completely

irrelevant to the case. And so I think when you're dealing

with voluminous electronic discovery like this, a keyword

approach, limited triage and translation is the best way to go

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forward, and that's what we're proposing to do, but at the same

time give them access to everything that they would need to do

a deeper dive if they so choose.

With respect to the defendant's --

THE COURT: Can I ask a question about that?

MR. MANGAN: Sure.

THE COURT: And I hear your practicality argument, but

how does the government discharge its duty to disclose Jencks

and Giglio and Brady stuff if you don't know what is said?

MR. MANGAN: Well, first of all, in terms of our

obligation to turn it over, it will have been turned over --

THE COURT: Okay.

MR. MANGAN: -- because the original, the full account

is turned over. It's simply in Chinese as opposed to in

English. So from the standpoint of satisfying that obligation,

we believe giving them the full account addresses that.

The issue is what is translated so that, you know, each

side can make meaningful use of it. I think whether you're

talking about a foreign language issue or even just in cases

where you have large reams of, let's say, e-mail, just evidence

and you're trying to get through it, I think courts have at

times endorsed keyword search approaches, where necessary, to

try to find what you think is going to be the most relevant

information within, you know, a vast network of electronic

information.

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So that's how we would propose it, Your Honor, is between

giving them the full universe of data untranslated, plus giving

them what we found, what we have found through a keyword

search, would satisfy our obligations.

THE COURT: I thought I would ask the question just to

make the point, and I appreciate your answer.

MR. MANGAN: Okay.

THE COURT: And I interrupted you on your next thing.

MR. MANGAN: Sure.

Turning to the defendant's confinement right now in

Michigan, we understand their concerns. I think there has been

a progression along this line where, as they've had issues,

they've tried to raise them with the BOP. I think a number of

these issues are getting better over time in terms of

communication and, you know, providing whatever comforts the

defendant is trying to get so that he, you know, is able to

sort of function properly.

He is able to write back and forth to his family and has

done so at length. I know they're working through some visa

issues, but his family is entitled, when they come here, to

visit him. I'm not sure of the details of the phone calls, but

I know he has been able to call on the phone.

With respect to, I guess, the most significant portion of

it, which is the ability for defense counsel to work with him,

you know, we don't fully control where he is being housed. For

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security reasons, they've found what they deemed to be the most

appropriate place for him. It happens to be in Michigan. The

last one we had was in Terre Haute, which isn't much better in

terms of the travel time. I know when they went up there

before, they were allowed to visit with him for several hours.

My understanding is that they have set aside a couple of

days in the week where they would make the defendant available

for these types of meetings, and those are days when no other

inmate is getting visits. So let's say all the other inmates

are having visits on Thursday and Friday. They're setting

aside other days, I don't know if it's Monday and Tuesday or

which days it is --

MS. CORS: Uh-huh.

MR. MANGAN: Is it Monday and Tuesday?

MS. CORS: (Nods head up and down.)

MR. MANGAN: -- so that Mr. Xu can meet with whoever

is coming to meet Mr. Xu, which would include defense counsel.

I realize that there's travel issues involved, but that

seems to be a pretty significant accommodation to enable him to

meet with his counsel as needed to go through the discovery.

It sounds like they've had at least, you know, multiple visits

up there. I don't know how many. But, you know, I think

that's the best, you know, that can be done. He does have

access to his counsel. They can write to him; they can visit

him. There's just some coordination that needs to be done.

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And we're happy to try to help act as a liaison or facilitate

it, but I think it's just something that we're all going to

have to try to work through issue by issue.

THE COURT: And who's in charge of his security

conditions and responsible for that? Clearly, the U.S.

Attorney is not; correct?

MR. MANGAN: Yes. I mean, I think it's sort of a --

in this case, you know, in the first instance there's the

marshals' office, who determines where a person is housed.

Normally they'll do that through their own contractors. In

this case they're working with the BOP. And since it is now --

he is now housed with the BOP, there is a BOP contact at FCI

Milan, you know, who I think has been in contact with them and

they've been able to talk directly with him about their

concerns at the BOP facility.

So now that he's at BOP, I think everybody tends to talk

directly with that contact in Milan and the marshals are not

directly involved, sort of, on a day-to-day basis. But it

would be those two agencies. I agree with you it's not our

office.

THE COURT: Well, the Court itself reached out to the

BOP and tried to be responsive to some of the defendant's

concerns. We may have gotten him a sweater and a shirt and

some books in his native language.

The Court's aware of the challenges that present. I'm not

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clear on what the Court's role is, and I'm not clear why he's

being held in solitary. Do you know?

MR. MANGAN: I don't know, sort of, exactly what the

rationale was or, sort of, what limitation they have in terms

of access. I don't know that.

THE COURT: Very well. So you've responded to --

MR. MANGAN: I think -- actually, let me back up to

maybe give you a little more of an answer.

THE COURT: Okay.

MR. MANGAN: He's within, I think, what's called the

special housing unit. I don't know how many others are in

there right now. I think there was a time when there were a

couple others who were there. And he is able to talk to other

inmates that are within that unit.

I don't know, sort of, who's there right now and how much

contact he has, but he has had interaction with other inmates,

so it's not -- I don't think it's -- solitary sort of conveys

exactly, sort of, the situation he's in.

But part of the rationale, Your Honor, goes back to issues

concerning when he was being detained in Belgium, there were

some concerns regarding his behavior there in terms of, one,

getting a --

THE COURT: Well, I guess, you know, I'm trying not to

get involved in the nitty-gritty --

MR. MANGAN: Okay.

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THE COURT: -- unless it's my role. I was just asking

out of curiosity why is he in solitary, and --

MR. MANGAN: I think it's just sort of at least be

able to -- in the special housing unit, they have better

control over who has access to the defendant and who the

defendant has access to. I think that's both in order for them

to assure that he's not doing anything wrong but also to

protect him as well and make sure no one's doing anything

towards the defendant, and so I think that was part of the

concern.

THE COURT: Very well. Well, you've had a chance to

respond to the defendant's concerns about discovery and

awaiting trial, and you've spoken to his conditions as well.

Do you insist upon a rely or surreply, Mr. Kohnen?

MR. KOHNEN: Respectfully, I will, Your Honor, with

the Court's permission.

THE COURT: No lawyer I've asked has said no. Go

ahead.

MR. KOHNEN: Judge, working backwards, moving forward,

again, this is not something that we intend to bring to the

Court's attention that we -- for some solution that the Court

can give us now, but it is something we want to give the Court

a heads-up about.

THE COURT: I appreciate that.

MR. KOHNEN: And also just to get our terminology

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straight, the special housing unit is a euphemism for solitary

confinement, also known as "the hole." He spends 23 hours per

day in his cell. He never interacts with another inmate,

period. They make sure of that in the special housing unit.

THE COURT: But you're not asking the Court to do

anything?

MR. KOHNEN: No. But I want to make sure, because you

asked the question, I want to make sure it's fully answered and

answered accurately.

Judge, the bottom line is he's being -- he's being

incarcerated.

THE COURT: Pursuant to law.

MR. KOHNEN: And another thing I want to clarify,

again, it's not something that we're presenting to the Court

for a decision, but when Mr. Mangan says, you know, this is a

problem that we're all going to have to work through, I think

there are only three people in this room that have to work

through it on a daily basis. And I want to remind the Court

that it's creating a burden on us, and it is impinging on our

ability to represent our client. We're doing our best we can

now, and we think we're doing an acceptable job, but we can see

the situation deteriorating as time goes on. I'm just --

THE COURT: Well, I appreciate you bringing it to the

Court's attention for purposes of having it on its radar

screen.

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MR. KOHNEN: Your Honor, with respect to the discovery

and the Jencks issue and the Giglio issue, the Brady issue,

Judge, let's be clear. This is material that is in the

possession of the government. The government is going to the

trouble of translating the material that they want to use

against our client for all of us and we'll all work through

that together, but they're not going to the trouble of looking

for and finding Brady material, Jencks material, Giglio

material and translating it into English, which is their

responsibility.

What Mr. Mangan is talking about, in euphemisms again, is

an alternative, what he suggests is a practical or a not

impractical alternative, which is the functional equivalent of

a massive document dump in Chinese. That's unacceptable, Your

Honor.

Anything -- they've got to go through this discovery --

THE COURT: So what do you propose the Court do, when,

about the discovery issues?

MR. KOHNEN: I'm sorry?

THE COURT: What do you propose the Court do, when,

about the discovery issues you're talking about?

MR. KOHNEN: I suggest that the Court instruct the

government anything they intend to use needs to be translated,

anything they have that is or could be Brady, Jencks or Giglio

material, which is in their possession and they're obligated to

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turn over, must be translated as well.

And if they have to go to the trouble of translating every

shred of information that they have obtained and are continuing

to obtain, that's a problem that they brought on themselves.

Judge, they're continuing to investigate the case after it's

been indicted. Mr. Mangan as much as told you that. And

rather than do that, or maybe simultaneous to that, perhaps

they should start interpreting, translating this material so

that it's of some use to us.

Character recognition software using Chinese characters to

try to find Brady, Giglio and Jencks material, which is Mr.

Mangan's suggestion, is patently ridiculous. That's putting

yet another burden on us which is unfulfillable.

THE COURT: So are you going to file a motion?

MR. KOHNEN: We just heard about this plan yesterday.

I expect we likely will, unless we can get an order from the

Court here or a concurrence from the government.

THE COURT: I'm simply asking, as I'm required to do.

I saw you pop up, Mr. Mangan. Did you wish to be heard?

MR. MANGAN: This is the same plan we discussed at the

first meeting with the Court.

THE COURT: Okay.

MR. MANGAN: And, Your Honor, I'm not sure how the

Court would reconcile them wanting us to translate every single

thing whether it's relevant or not, but at the same time, they

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want to get to trial as soon as possible.

THE COURT: And I'm not going to order you to do what

they request today.

MR. MANGAN: Okay.

THE COURT: I'm not yet persuaded. I think the

approach is an approach. I think Mr. Kohnen got fired up

because I asked his question of you myself.

Are you prepared to deal with these two attorneys? There's

some indication that they're coming off a big win. Have you

acknowledged that?

MR. KOHNEN: We're ready, willing and able, Your

Honor. And I want to make clear that we get along great with

these guys and we have for years, but these are very important

issues to us and to our client.

THE COURT: I understand. And, you know, what other

judge would remind you that these guys, you know, just rang the

bell. I mean, it's difficult to win criminal cases to juries.

Have you ever heard of that happening in this district?

MR. KOHNEN: Once or twice, Judge.

THE COURT: All right. Fair enough.

I don't know enough about where we are on the discovery

stuff to change what we have discussed all along. If I have a

pleading and I have to deal with it, I will. A motion may well

be necessary.

As to the speedy trial requirements, even if CIPA cases are

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not automatically deemed complex, the Court is inclined to find

that in this specific case the voluminous discovery, as well as

the procedural requirements given the nature of the offense and

nature of the prosecution, including translating documents,

designating discovery in categories for purposes of production

under the protective order, not to mention CIPA, background and

clearance for court staff and the like, the Speedy Trial Act

timeline is impracticable under the circumstances.

What do you make of that, Mr. Kohnen?

MR. KOHNEN: Your Honor, we can't disagree with that

finding as things exist now, but we think that going forward we

may present to the Court some reasons to see the case

differently in the future.

THE COURT: Very well.

Well, the Court grants the requested continuance in time.

Time should continue to toll until the next hearing date. The

Court finds that the ends of justice served by granting a

continuance in this case outweigh the interests of the

defendant and the public in a speedy trial. I stated the basis

for that finding.

So I would propose that we set another date to reconvene.

And I guess I heard March CIPA filing, and I'd like to touch

base.

Ms. Frankian, do we have a date to propose, and should I

order the government to accelerate its discovery to be done by

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some specific date?

THE LAW CLERK: Judge, I can propose dates either in

January after the second wave of discovery or in March after

the CIPA motion.

THE COURT: Do you want to confer with the Court in

person in January or March? What's the government's

preference?

MR. MANGAN: I think -- I think if we're talking about

scheduling this for a status conference, which is what it

sounds like --

THE COURT: Right.

MR. MANGAN: -- we would prefer something probably in

February or March, at least in terms of it being the most, you

know, beneficial to everybody.

THE COURT: It would be beneficial to me to see the

CIPA filing when you are able, but you were talking at some

point in March.

MR. MANGAN: Right. But I didn't know if the Court

would want a status update before we even got to that point, so

that's why I'm throwing out February as well.

THE COURT: What's your proposal when we have another

status conference? I'm always eager to convene with this

group.

MR. KOHNEN: Judge, I think the end of January or very

early February is a good idea; if nothing else, just to keep

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the Court updated on whatever happens to be going on in this

case.

THE COURT: Very well. Let us look at the calendar

and propose something.

THE LAW CLERK: January 31st at 2:00 o'clock?

THE COURT: January 31st work, at 2:00 o'clock? It's

an opening bid.

MR. KOHNEN: Judge, I'm sorry. I'm going to be out of

town that Friday -- or that Thursday.

THE COURT: Okay. I wouldn't want to proceed without

you.

THE LAW CLERK: February 6th at 10:30?

THE COURT: February 6 at 10:30 is the new bid. Tell

me if it doesn't work.

MR. MANGAN: That's fine for the government, Your

Honor.

MR. KOHNEN: That works for us, Your Honor.

THE COURT: Okay. Did we say a time on the 6th?

THE LAW CLERK: 10:30.

THE COURT: February 6 at 10:30. Time is tolled till

then. I hope that you continue to make progress. I'm

delighted that you're working together professionally and

efficiently.

Is there more today on this? If there is, tell me.

Anything further from the government?

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MR. MANGAN: No, Your Honor.

THE COURT: And the defense?

MR. KOHNEN: Nothing. Thank you, Your Honor.

THE COURT: Very well. The Court prepares to recess.

COURTROOM DEPUTY: All rise. This court is in recess.

(Proceedings concluded at 12:31 PM.)

- - - 

C E R T I F I C A T E 

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

that the foregoing is a correct transcript from the record of 

proceedings in the above-entitled matter. 

 s/Luke T. Lavin 

Luke T. Lavin 

 Official Court Reporter 

- - - 

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