IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

WESTERN DIVISION 

UNITED STATES OF AMERICA, 

Plaintiff, 

vs. 

YANJUN XU, 

 a/k/a Xu Yanjun, 

 a/k/a Qu Hui, 

 a/k/a Zhang Hui, 

Defendant. 

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Case No. 1:18-cr-00043 

Judge Timothy S. Black 

DEFENDANT’S MOTION FOR 

JUDGMENT OF ACQUITTAL 

Defendant Yanjun Xu (“Mr. Xu”) moves the Court for a judgment of acquittal, pursuant 

to Federal Rule of Criminal Procedure 29(a). The government’s evidence closed with the 

government failing to present sufficient evidence that Mr. Xu committed the crimes charged in 

the indictment. 

“[T]he court on the defendant's motion must enter a judgment of acquittal of any offense 

for which the evidence is insufficient to sustain a conviction.” Fed. R. Crim. P. 29(a). The Court 

must consider whether—at the time of the motion, and viewing the evidence in the light most 

favorable to the government—there is sufficient, relevant evidence from which a reasonable jury 

could find the defendant guilty beyond a reasonable doubt. United States v. Adan, 913 F. Supp. 

2d 555, 563 (M.D. Tenn. 2012), aff’d sub nom. United States v. Fahra, 643 F. App’x 480 (6th 

Cir. 2016). The government failed that test here. 

ARGUMENT 

The government charged Mr. Xu in a four-count indictment, alleging that he attempted 

and conspired to violate the Economic Espionage Act (“EEA”), 18 U.S.C. § 1831 et seq. (the 

“Indictment”). Counts I and II alleged conspiracies to commit economic espionage and to steal 

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trade secrets, beginning in 2013, continuing to April 1, 2018. Counts III and IV allege attempts 

to commit economic espionage against and to steal trade secrets from General Electric Aviation 

(“GE Aviation”) between March 2017 and April 2018. 

I. The Government has not proven that Mr. Xu joined a conspiracy with the criminal 

objective of stealing trade secrets. 

Counts I and II of the Indictment require the government to prove, inter alia, that Mr. Xu 

and at least one other person formed an agreement to “knowingly” steal a trade secret. 18 U.S.C. 

§§1831(a)(5) and 1832(a)(5). The EEA defines “trade secret” as information that (a) the owner 

has taken reasonable measures to keep secret, and (b) derives independent economic value from 

not being generally known to or readily ascertainable by “another person who can obtain 

economic value from the disclosure or use of the information.” 18 U.S.C. § 1839(3). 

The essence of a conspiracy is an agreement, but not just any agreement will do. It must 

be an agreement to accomplish some definite, illegal object. See United States v. Lopez-Medina, 

461 F.3d 724, 747 (6th Cir. 2006) (holding that to prove the existence of a conspiracy, the 

prosecution must establish, inter alia, that there was “an object to be accomplished.”) (quotations 

omitted); United States v. Rosenblatt, 554 F.2d 36, 39 (2d Cir. 1977) (“Thus, it is clear that a 

general agreement to engage in unspecified criminal conduct is insufficient to identify the 

essential nature of the conspiratorial plan.”) 

So in order to convict Mr. Xu of counts I and II of the Indictment, the government must 

prove beyond a reasonable doubt that Mr. Xu and at least one other person formed an agreement 

to “knowingly” steal what they believed to be trade secrets—information that the owner tried to 

keep secret, and that derived its value from being secret. United States v. Liew, 856 F.3d 585, 

597 (9th Cir. 2017). Additionally, to convict Mr. Xu on Count II (theft of trade secrets), the 

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government must also prove beyond a reasonable doubt that the alleged conspirators knew or 

intended to injure the owner of the trade secret. 18 U.S.C. § 1832(a). 

This means that the government must do more than prove that the alleged conspirators 

sought out “information”—or even non-public, non-trade secret information. Rather, the 

government must show a specific intent to unlawfully obtain trade secrets. 

The government’s theory of the case on the conspiracy counts has shifted over time. 

Initially, the government focused on what it alleged to be efforts to steal trade secret information 

from GE Aviation in 2017-2018. The government alleged that this conspiracy operated by 

inviting foreign experts to China to give presentations (termed “exchanges”) on aviation 

technology. (Indictment, Doc. 1, ¶ 13(h), at PageID #7.) The government later announced a shift: 

it proposed that part of the conspiracy involved “hacking” a computer belonging to an employee 

of French aerospace company Safran S.A. (Notice of 404(b) Material, Doc. 88, at PageID #908.) 

But one thing is consistent: There’s no evidence that the conspiracy—however defined—had the 

specific criminal objective of unlawfully obtained trade secrets. 

A. The Safran intrusion does not reflect an intent to steal trade secrets. 

The government offers two bits of evidence to show the criminal objective of the alleged 

conspiracy, but neither does the job. The first is the Safran hacking incident, which the 

government suggests both is a part of the alleged conspiracy and demonstrates an intent to steal 

trade secrets. (Response to Defendant’s Motion in Limine, Doc. 128, at PageID #1562-1565.) 

According to the government’s theory, Chinese agents planted malware on the computer of a 

Safran employee who was working in China at the time, between January and April 2014. (Id.) 

But the government’s own witness, Agent Adam James, testified that he could not determine if 

any documents were targeted or accessed during the hack, that no files were exported from the 

Safran system, and that he had no evidence that anyone tried to download or export a trade 

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secret. In fact the government did not introduce evidence that the laptop had any trade secrets on 

the hard drive. So despite having access to the Safran computer for three months, and—in the 

government’s telling—the motive to steal trade secret information, none of the alleged 

conspirators stole any trade secrets.1

Agent James also testified that MSS is responsible for domestic security, particularly 

rooting out internal spies in China, and monitoring companies and foreigners in China. He 

further testified that to achieve those ends, China uses several techniques, including bugging or 

intruding into a computer so that China could conduct surveillance. The Safran intrusion is far 

more consistent with surveilling the foreign employee working in China than with any effort to 

steal trade secrets. So if anything, the Safran intrusion shows that the alleged conspiracy did not

form the specific criminal intent to steal trade secrets (nor the intent to steal trade secrets so that

or knowing that the theft would injure the owner of the secrets). 

B. James Olson’s testimony does not establish a criminal intent to steal trade 

secrets. 

The only government witness who testified to any specific intent was James Olson. Olson 

opined that MSS seeks information, including trade secret information. But there are three 

independently fatal flaws in his testimony. The first is that, by his own admission, he does not 

know anything about how MSS operates. He has been out of intelligence for 22 years—and even 

when he was an active agent, he focused on Cold War Russia (which he admitted was culturally 

closer to the US than either is to China). He does not know how anything about the MSS 

organization including its size, how MSS trains its agents, who trains its agents, what it trains its 

1

 Agent James also read communications from Tian, Gu, and between MSS colleagues—none of 

the communications referenced an effort to obtain documents or steal trade secrets, nor did they 

mention composite materials, fan blades, or aviation technology. 

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agents to do, or what kind of alleged “spycraft” it employs. So it is hard to imagine that he could 

competently testify about the organization’s intentions—much less that it has the specific 

criminal intent to steal aviation trade secrets. 

Second, Olson testified that virtually all of Mr. Xu’s alleged conduct is perfectly legal 

and consistent with an organizational mission to gather information that is not specifically trade 

secrets. In particular, academic exchanges like the one with Zheng at the center of this case are 

both common and lawful. According to Olson, there is nothing untoward about using multiple 

email addresses or multiple names. There was nothing untoward about Mr. Xu’s proposed 

meeting with Zheng in Belgium: The government hangs much on the fact that Mr. Xu had photos 

of Zheng and brought $7000 with him to Belgium. But Mr. Xu and Zheng were friends on social 

media; the fact that Mr. Xu had photos would not be indicative of spycraft (nor, contrary to the 

government’s suggestion, would it be a wise or useful tool for intimidating someone into giving 

up trade secrets—not that Mr. Xu attempted to do so). And, according to Olson, $7000 is not 

enough to buy your way into a trade secret worth untold millions (that amount is, however, 

perfectly consistent with reimbursing someone for a transcontinental flight or shopping in 

Europe). 

Third, Olson himself testified that China is behind the US in science and technology, and 

seeks out information of all kinds wherever they can find it. But a broad organizational mission 

to find “information”—much of which, Olson agreed, is open source intelligence—is hardly 

indicative of a specific criminal objective to steal trade secrets. Further, if Olson is right and 

China is simply seeking to catch up to American technology, then the alleged conspiracy could 

not have acted with the specific knowledge and intent to injure the corporate owners of trade 

secrets, as required for a conviction on Count IV. 

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By his own admission, Olson’s testimony is largely based on the limited selection of 

communications that the government fed him. He admitted that Mr. Xu’s conduct is not by itself 

indicative of spycraft;2

 he only believed it was spycraft because the government told him that 

Mr. Xu was a spy. But if one removes the government’s shading of the witness, Mr. Olson 

simply could not and did not describe anything criminal about Mr. Xu’s conduct. 

II. The Government has not proven that Mr. Xu formed the criminal intent to steal a 

trade secret. 

Counts III and IV, the attempt counts, are even more specific. They are tied to 

interactions with a GE Aviation engineer between 2017 and 2018. The government must show 

that Mr. Xu specifically intended to unlawfully obtain trade secrets, and that he took a 

“substantial step” towards carrying out the offense. That step must be beyond mere preparation, 

and must demonstrate Mr. Xu actually intended to complete the substantive crime. United States 

v. Yang, 281 F.3d 534, 543 (6th Cir. 2002). And Count IV, like Count II, requires the additional 

showing that Mr. Xu knew or intended for his conduct to injure GE Aviation. 18 U.S.C. 

§ 1832(a). 

The attempt counts are specific to GE Aviation and the “exchange” in which Zheng (a 

GE Aviation engineer) was invited to give a presentation in China. The question is 

straightforward: Where does the evidence show that Mr. Xu formed the specific criminal intent 

to steal trade secret information from GE Aviation, and when did he take a “substantial step” 

towards that goal? 

2

 Even if it were, “spycraft” is not the same thing as a specific criminal objective to steal trade 

secrets. 

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A. The 2017 Exchange does not involve any request or attempt to obtain trade 

secrets from GE Aviation. 

Zheng testified extensively about his interactions with Mr. Xu and Chen Feng, and 

nowhere does he describe an attempt to obtain trade secrets. Chen connected to Zheng via 

LinkedIn—a perfectly ordinary use of the platform. The two started communicating via email in 

March of 2017; the government read many of those emails into evidence as exhibit 60b. Zheng 

was planning to visit family in China in May of 2017, and said he could stop by the National 

University of Aeronautics and Aerospace – a prestigious university which Zheng considered an 

honor to be invited. (Ex. 60b, at 3.) Chen suggested that he give a presentation on composite 

materials in aircraft engines. Zheng said that he had to sign a technical agreement with GE, and 

that technical or proprietary information could not be shared. (Id. at 12.) Chen said that he 

respected the policy and said he would be happy to have Zheng only discuss general topics that 

would not violate GE’s policies. (Id. at 18.) That is, Chen affirmatively disclaimed any interest in 

any information that GE took steps to keep secret, and thus disclaimed any interest in trade secret 

information. 

Zheng prepared a presentation based on public information he pulled from professional 

and academic journal articles. He also zipped five files (training documents) that were GE 

proprietary information. Chen had never asked for that information, and Zheng testified that he 

took measures to protect against disclosure and did not share them or present on them. Zheng 

met with Chen, Qu Hui (whom the government believes is Mr. Xu), and others for both morning 

tea and lunch—no one asked Zheng about his work or any proprietary information.3

 He delivered 

a one and one-half hour presentation to 25 students and professors in the afternoon—Zheng 

3

 Zheng testified that no one accessed his laptop while he was in China, and that the 5 proprietary 

training documents he took with him (of his own accord) were not released. 

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again did not disclose any proprietary information. After the presentation, he was given $3500 

for his plane ticket and for the presentation—an amount Zheng thought was perfectly reasonable 

for the trip and presentation. 

Nowhere in Zheng’s testimony about the 2017 exchange does he describe any effort by 

Mr. Xu (or anyone else) to get him to disclose trade secret information. 

B. None of the post-exchange communications involve a request or attempt to 

obtain trade secret information. 

On November 1, 2017, Zheng started cooperating with the FBI. From that point on, 

Zheng was merely a conduit for the government’s communication with Chen and Mr. Xu. At the 

government’s behest, Zheng reached out to reestablish contact with Chen in late 2017. They 

discussed a second exchange; Chen said they were not in a rush because NUAA was on break, 

and suggested that he talk to Mr. Xu about finances. (Ex. 67c). During that conversation, Zheng 

(on behalf of the government) repeatedly asked what information NUAA wanted for the 

exchange; Mr. Xu told him multiple times that he did not have to prepare or do anything. (Id.) 

Apparently dissatisfied with Mr. Xu’s failure to climb into the trap and ask for trade 

secrets, the government decided to offer them of its own accord. For example, after Mr. Xu told 

Zheng he did not need to bring or prepare any materials, Zheng sent a message (on behalf of the 

FBI) showing that he could get information right away. FBI Agent Bradley Hull testified that the 

message was an offer to Mr. Xu to try to bait him into asking for specific information. But the 

ask never came. Indeed, the only time proprietary information came up was when Zheng (on 

behalf of the FBI) offered a document that the FBI doctored with “GE Designation: 

Confidential” in order to entice Mr. Xu to ask for it. (Ex. 68.) Agent Hull testified that he sent 

the document in order to keep Mr. Xu’s interest. In his response, Mr. Xu clearly did not 

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understand what Zheng (or the FBI) had sent him. (Ex. 69.) So he offered to connect him with 

experts in China. 

 The closest the government comes to even suggest a request for a trade secret is in 

Exhibit 70, where Mr. Xu asks Zheng to sort out a directory of his computer. But a computer 

directory is not “trade secret information” as defined in the EEA—nor would anyone reasonably 

believe that the directory of a laptop “derives independent economic value . . . 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.”4

 Mr. Xu later 

asked for “more data,” but never asked for trade secret information (or for anything that could 

have been construed as trade secret information). (Ex. 67c.) The government (through Zheng, 

and with GE’s consent) sent a purported “design” document to Mr. Xu with a designation “GE 

Proprietary Information.” But Mr. Xu had not asked for it, or for any proprietary or trade secret 

information from GE. 

The government will no doubt try to make much of Mr. Xu’s trip to Belgium to meet 

with Zheng and receive the directory of his computer. But it must be stressed again that Mr. Xu 

did not ask for trade secret information—nor would he have any reason to believe that the 

directory itself was a trade secret. And so the mere fact that he met Zheng in Europe to receive 

that non-trade secret information does not convert the information into a trade secret. 

CONCLUSION 

The jury could convict Mr. Xu only if the government proves beyond a reasonable doubt 

that Mr. Xu formed the specific criminal intent to steal what he believed to be a trade secret. The 

government’s theory seems to be that Mr. Xu is a spy and spies steal things, so he must be guilty. 

4

 That request came only after the government’s efforts to bait Mr. Xu. 

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But that is not what the EEA requires. The government has not established any agreement or the 

specific criminal objective of the charged conspiracy, nor has it proven the specific criminal 

intent required for the attempt charges. As a result, the Court should enter a judgment of acquittal 

on all charges. 

Respectfully submitted, 

/s/ Ralph W. Kohnen 

Ralph W. Kohnen (0034418) 

Jeanne M. Cors (0070660) 

Robert K. McBride (pro hac vice)

Sanna-Rae Taylor (0091302) 

Taft Stettinius & Hollister LLP 

425 Walnut Street, Suite 1800 

Cincinnati, Ohio 45202-3957 

Telephone: (513) 381-2838 

Fax: (513) 381-0205 

kohnen@taftlaw.com 

cors@taftlaw.com 

rmcbride@taftlaw.com 

srtaylor@taftlaw.com 

Florian Miedel (pro hac vice)

Miedel & Mysliwiec LLP 

80 Broad Street, Suite 1900 

New York, NY 10004 

Telephone: (212) 616-3042 

Fax: (800) 507-8507 

fm@fmamlaw.com 

COUNSEL FOR DEFENDANT 

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CERTIFICATE OF SERVICE 

I hereby certify that on November 1, 2021 a copy of the foregoing was filed electronically. 

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

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

/s/ Ralph W. Kohnen 

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