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Case: 1:18-cr-00043-TSB Doc #: 214 Filed: 12/02/22 Page: 1 of 87 PAGEID #: 5369
·1· · · · · · · · ·US DISTRICT COURT

·2· · · · · · ·SOUTHERN DISTRICT OF OHIO

·3

·4

·5· ·____________________________

· · · · · · · · · · · · · · · · ·)

·6· ·USA,· · · · · · · · · · · · )

· · · · · · · · · · · · · · · · ·)

·7· · · · · · Plaintiff,· · · · ·)

· · · · · · · · · · · · · · · · ·)· Case No.

·8· · · · · · · · · · · · · · · ·)· · 1:18-cr-00043-TSB-1

· · · · · · · · · · · ·vs.· · · ·)

·9· · · · · · · · · · · · · · · ·)

· · ·YANJUN XU,· · · · · · · · · )

10· · · · · · · · · · · · · · · ·)

· · · · · · · Defendant.· · · · ·)

11· ·____________________________)

12

13

14

15· · · · · ·Before:· · · · ·HONORABLE TIMOTHY S. BLACK

16· · · · · ·Date and Time:· Wednesday, November 16, 2022

· · · · · · · · · · · · · · ·10:30 A.M.

17· · · · · ·Place:· · · · · Potter Stewart

· · · · · · · · · · · · · · · ·United States Courthouse

18· · · · · · · · · · · · · ·100 East Fifth Street

· · · · · · · · · · · · · · ·Courtroom 1

19· · · · · · · · · · · · · ·Cincinnati, Ohio 45202

20· · · · · ·Reporter:· · · ·Kathy S. Simpson, RPR

· · · · · · · · · · · · · · ·Notary Public - State of Ohio

21· · · · · ·Interpreters:· ·Mae Harmon

· · · · · · · · · · · · · · ·Robin Murphy

22· · · · · · · · · · · · · · ·(via videoconference)

23

24

25

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Case: 1:18-cr-00043-TSB Doc #: 214 Filed: 12/02/22 Page: 2 of 87 PAGEID #: 5370
·1· ·APPEARANCES OF COUNSEL:

·2

·3· · · For the USA:

·4· · · · · ·Emily N. Glatfelter, Esq.

· · · · · · · · · ·of

·5· · · · · ·United States Attorney's Office

· · · · · · ·221 East Fourth Street

·6· · · · · ·Suite 400

· · · · · · ·Cincinnati, Ohio· 45202

·7· · · · · ·513.648.3711

· · · · · · ·emily.glatfelter@usdoj.gov

·8

· · · · · · · · · · ·and

·9

· · · · · · ·Matthew John McKenzie, Esq.

10· · · · · · · · ·of

· · · · · · ·U.S. Department of Justice

11· · · · · ·National Security Division

· · · · · · ·950 Pennsylvania Avenue NW

12· · · · · ·Washington DC· ·20530

· · · · · · ·202.514.7845

13· · · · · ·matthew.mckenzie@usdoj.gov

14

15

16

17

18

19

20

21

22

23

24

25

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Case: 1:18-cr-00043-TSB Doc #: 214 Filed: 12/02/22 Page: 3 of 87 PAGEID #: 5371
·1· ·APPEARANCES OF COUNSEL:

·2

·3· · · For the Defendant:

·4· · · · · ·Florian Miedel, Esq.

· · · · · · · · · · of

·5· · · · · ·Miedel & Mysliwiec LLC

· · · · · · ·80 Broad Street

·6· · · · · ·Suite 1900

· · · · · · ·New York, New York· 10004

·7· · · · · ·212.616.3042

· · · · · · ·fm@fmamlaw.com

·8

· · · · · · · · · ·and

·9

· · · · · · ·Jeanne Marie Cors, Esq.

10· · · · · · · · · of

· · · · · · ·Taft Stettinius & Hollister, LLP

11· · · · · ·425 Walnut Street

· · · · · · ·Suite 1800

12· · · · · ·Cincinnati, Ohio· 45202

· · · · · · ·513.357.9635

13· · · · · ·cors@taftlaw.com

14· · · · · · · · ·and

15· · · · · ·Sanna-Rae Taylor, Esq.

· · · · · · · · · · of

16· · · · · ·Taft Stettinius & Hollister, LLP

· · · · · · ·425 Walnut Street

17· · · · · ·Suite 1800

· · · · · · ·Cincinnati, Ohio· 45202

18· · · · · ·513.357.9635

· · · · · · ·srtaylor@taftlaw.com

19

20

21· · · Also present:

22· · · · · ·Jacqueline K. Prim, Paralegal

· · · · · · · ·U.S. Department of Justice

23· · · · · ·Bradley Hull, Special Agent

· · · · · · · ·F.B.I.

24

25· · · · · · · · · · · · · - - -

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Case: 1:18-cr-00043-TSB Doc #: 214 Filed: 12/02/22 Page: 4 of 87 PAGEID #: 5372
·1· · · · ·P-R-O-C-E-E-D-I-N-G-S

·2· · · · MS. SANTORO:· All rise.

·3· · · · THE COURT:· Thank you.· Please be

·4· ·seated.

·5· · · · Good morning.· We are here in the

·6· ·open courtroom on the record on the

·7· ·criminal docket in the case of United

·8· ·States versus Xu, case number 1:18-cr-43.

·9· · · · We're here for sentencing.· I would

10· ·like to begin with the attorneys entering

11· ·their appearances for record.

12· · · · Who will appear as the attorneys for

13· ·the United States of America?

14· · · · MS. GLATFELTER:· Good morning, your

15· ·Honor, Emily Glatfelter.· I'm also joined

16· ·at counsel table with Matt McKenzie from

17· ·the Department of Justice, Jackie Prim

18· ·from the Department of Justice, and

19· ·Bradley Hull from the FBI.· My

20· ·co-counsel, Tim Mangan, unfortunately

21· ·can't be here.· He is in trial in front

22· ·of Judge Barrett.

23· · · · THE COURT:· That is unfortunate.

24· ·I'd ask the Defense to enter their

25· ·appearances.

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Case: 1:18-cr-00043-TSB Doc #: 214 Filed: 12/02/22 Page: 5 of 87 PAGEID #: 5373
·1· · · · MR. MIEDEL:· Good morning, your

·2· ·Honor, Florian Miedel, Jeanne Cors, and

·3· ·Sanna-Rae Taylor for Mr. Xu.· Also at

·4· ·counsel table with us is Mae Harmon, who

·5· ·is the interpreter for the Defense.

·6· · · · THE COURT:· Good morning, welcome

·7· ·back.· Mr. Xu is present and seated to

·8· ·counsel's left in the custody of the U.S.

·9· ·Marshal, correct?

10· · · · MR. MIEDEL:· That's correct.

11· · · · THE COURT:· Good morning, sir.

12· · · · THE DEFENDANT:· Good morning.

13· · · · INTERPRETER MURPHY:· Good morning.

14· · · · THE COURT:· Good morning.· This is

15· ·Judge Black.· I'm going to run through

16· ·this.· Ms. Mae Harmon is here.· Good

17· ·morning to her.· She is the Chinese

18· ·language interpreter between the

19· ·Defendant and his attorneys; is that

20· ·right?

21· · · · INTERPRETER HARMON:· Yes.· That's

22· ·correct.

23· · · · THE COURT:· Very well.

24· · · · I don't believe I actually need you

25· ·under oath, but it can't hurt.· I'm going

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Case: 1:18-cr-00043-TSB Doc #: 214 Filed: 12/02/22 Page: 6 of 87 PAGEID #: 5374
·1· · · · ·to administer the oath that you correctly

·2· · · · ·and accurately interpret these

·3· · · · ·proceedings.

·4· · · · · · · Would you raise your right hand?

·5· · · · · · · · · · ·MAE HARMON

·6· ·an interpreter herein, was duly sworn to correctly

·7· ·and accurately interpret the following proceedings:

·8· · · · · · · THE COURT:· Thank you.

·9· · · · · · · We also have Ms. Robin Murphy

10· · · · ·participating remotely.· Ms. Murphy is

11· · · · ·the interpreter provided by the Court for

12· · · · ·Mr. Xu.· He has two, his own and the

13· · · · ·Court's.· She's linked to our courtroom

14· · · · ·audio and is also communicating with the

15· · · · ·Defendant by way of a headset.

16· · · · · · · Ms. Murphy, this is Judge Black, are

17· · · · ·you able to hear me?

18· · · · · · · INTERPRETER MURPHY:· Yes, your

19· · · · ·Honor.

20· · · · · · · THE COURT:· Good morning.· I would

21· · · · ·like you to take the oath to correctly

22· · · · ·interpret these proceedings as well.

23· · · · · · · Would you raise your right hand?

24· · · · ·It's not necessary, but it's historic.

25· · · · ·The oath I impose is absolute.

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513. 233.3000 

Case: 1:18-cr-00043-TSB Doc #: 214 Filed: 12/02/22 Page: 7 of 87 PAGEID #: 5375
·1· · · · · · · · · · ROBIN MURPHY

·2· ·an interpreter herein, was duly sworn to correctly

·3· ·and accurately interpret the following proceedings:

·4· · · · · · · THE COURT:· Thank you.

·5· · · · · · · INTERPRETER MURPHY:· Thank you.

·6· · · · · · · THE COURT:· Now, Ms. Murphy, you can

·7· · · · ·go ahead and mute yourself.· If at any

·8· · · · ·point you have trouble understanding or

·9· · · · ·just need a break, please don't hesitate

10· · · · ·to get our attention.· You can either

11· · · · ·unmute yourself and speak right up or

12· · · · ·just wave your -- communicate with my

13· · · · ·staff.· You may be able to IM them as

14· · · · ·well.· Just unmute yourself and tell me

15· · · · ·what you need.· The Court and the

16· · · · ·community appreciate your work.

17· · · · · · · INTERPRETER MURPHY:· I will.

18· · · · · · · THE COURT:· Very well.· We're here

19· · · · ·for sentencing.· It's going to take me a

20· · · · ·few minutes to establish the record for

21· · · · ·purposes of sentencing.· I promise I'll

22· · · · ·lift my eyes from the paperwork and

23· · · · ·listen carefully to the statements from

24· · · · ·the lawyers, any statement the Defendant

25· · · · ·wishes to make, if he wishes to make one.

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Case: 1:18-cr-00043-TSB Doc #: 214 Filed: 12/02/22 Page: 8 of 87 PAGEID #: 5376
·1· ·Bear with me.

·2· · · · MR. MIEDEL:· Your Honor.

·3· · · · THE COURT:· Yes.

·4· · · · MR. MIEDEL:· Sorry to interrupt. I

·5· ·have two brief housekeeping matters.

·6· · · · THE COURT:· Very well.

·7· · · · MR. MIEDEL:· The first is, we

·8· ·request that Mr. Xu's arms be unshackled

·9· ·as they were previously.· I checked with

10· ·the marshals.· They said it would be up

11· ·to you, your Honor, just because he may

12· ·need to write notes or communicate with

13· ·us.· That's number 1.

14· · · · Number 2 is at the appropriate time

15· ·Mr. Xu will want to make a statement.· He

16· ·has worked on that statement with

17· ·Ms. Harmon and the translation, and so we

18· ·think it would be best or easier if she

19· ·were the one to read the English

20· ·translation into the record as opposed to

21· ·forcing the Court interpreter to listen

22· ·to the statement and interpret it

23· ·realtime.

24· · · · THE COURT:· Is the Government

25· ·amenable to that approach?

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Case: 1:18-cr-00043-TSB Doc #: 214 Filed: 12/02/22 Page: 9 of 87 PAGEID #: 5377
·1· · · · MS. GLATFELTER:· No objection, your

·2· ·Honor.

·3· · · · THE COURT:· No objection.

·4· · · · As to the marshal, I thought you

·5· ·were in charge of security?· I would have

·6· ·told them it's up to you.· If it's up to

·7· ·me, I think you should assist the

·8· ·Defendant with his ability by letting his

·9· ·arm shackles go and his wrists so he can

10· ·communicate with his lawyers in writing.

11· · · · MR. MIEDEL:· Thank you, your Honor.

12· · · · THE COURT:· Very well.

13· · · · All right.· We're ready to proceed.

14· ·It's going to take a few minutes.· Bear

15· ·with me.· Some of it may sound like

16· ·legalese, but this part is straight

17· ·forward.

18· · · · Following a lengthy jury trial, the

19· ·Defendant stands before the Court today

20· ·having been convicted of four felony

21· ·counts; including Count 1, conspiracy to

22· ·commit economic espionage, a Class C

23· ·federal felony, providing a maximum

24· ·possible sentence of up to 15 years

25· ·imprisonment, up to three years of

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Case: 1:18-cr-00043-TSB Doc #: 214 Filed: 12/02/22 Page: 10 of 87 PAGEID #: 5378
·1· ·supervised release, and a fine of up to

·2· ·half a million dollars.

·3· · · · Count 2, which he was convicted, was

·4· ·conspiracy to commit trade secret theft,

·5· ·also a Class C federal felony, providing,

·6· ·however, a maximum possible sentence of

·7· ·up to ten years imprisonment, up to three

·8· ·years of supervised release, and a fine

·9· ·of up to a quarter of a million dollars.

10· · · · He was convicted of Count 3, attempt

11· ·to commit economic espionage, a Class C

12· ·felony, providing a maximum possible

13· ·sentence of up to 15 years in prison, up

14· ·to three years of supervised release, and

15· ·a fine of up to a half a million dollars.

16· · · · He was convicted of Count 4, attempt

17· ·to commit trade secret theft, a Class C

18· ·felony, providing a maximum possible

19· ·sentence of up to ten years in prison, up

20· ·to three years of supervised release, and

21· ·a fine of up to 250,000.

22· · · · Each of the above counts carries a

23· ·mandatory hundred dollar special

24· ·assessment.

25· · · · I should note for the record that I

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Case: 1:18-cr-00043-TSB Doc #: 214 Filed: 12/02/22 Page: 11 of 87 PAGEID #: 5379
·1· ·received sentencing memoranda from the

·2· ·lawyers from the both sides, they were

·3· ·helpful and professional and well done.

·4· · · · And I also have two letters in

·5· ·support of Mr. Xu, which I have read

·6· ·carefully.

·7· · · · Additionally, I previously ordered,

·8· ·as I do in all case, the preparation of

·9· ·and I have since received a thorough

10· ·written presentence investigation report.

11· ·The Defendant has raised a number of

12· ·objections to the presentence report.

13· ·The most substantial of which was its

14· ·objection to the loss amount computation.

15· · · · At the parties' request, I agreed to

16· ·conduct on the record a presentencing

17· ·evidentiary hearing to determine the loss

18· ·amount, after which I also received the

19· ·parties' written memoranda in support of

20· ·their respective positions.

21· · · · On November 5th, I resolved the loss

22· ·objection by way of written order filed

23· ·on the docket at Document 208.

24· · · · The Defendant, nonetheless, has five

25· ·additional objections to the presentence

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Case: 1:18-cr-00043-TSB Doc #: 214 Filed: 12/02/22 Page: 12 of 87 PAGEID #: 5380
·1· ·report which I will address in due

·2· ·course.

·3· · · · For the time being, I simply want to

·4· ·establish on the record that it's

·5· ·competent, it's true, and both sides have

·6· ·seen the presentence report and that

·7· ·there are no objections beyond those

·8· ·reflected in the presentence report.

·9· · · · So has the Government in the first

10· ·instance seen the presentence

11· ·investigation report and are there no

12· ·objections?

13· · · · MS. GLATFELTER:· There are no

14· ·objections from the Government.

15· · · · THE COURT:· And you've seen it?

16· · · · MS. GLATFELTER:· Yes, your Honor.

17· · · · THE COURT:· Very well.

18· · · · And, Counsel, have you and your

19· ·client received and reviewed the

20· ·presentence report and are there any

21· ·objections other than the ones reflected

22· ·in the presentence report?

23· · · · MR. MIEDEL:· Your Honor, we have

24· ·seen and reviewed the presentence report.

25· ·It was translated for Mr. Xu.· He has

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Case: 1:18-cr-00043-TSB Doc #: 214 Filed: 12/02/22 Page: 13 of 87 PAGEID #: 5381
·1· ·seen it.· We have no further objections

·2· ·beyond the ones we already made.

·3· · · · THE COURT:· Very well.

·4· · · · I'm going to ask Mr. Xu directly.

·5· ·You've seen the presentence investigation

·6· ·report I have before me and you talked to

·7· ·your lawyer about it?· Yes or no?

·8· · · · THE DEFENDANT:· Yes.

·9· · · · THE COURT:· Thank you.

10· · · · In terms of factual findings for

11· ·purposes of sentence, which I need to

12· ·establish, 18 U.S. Code 3661 states that,

13· ·quote, No limitation shall be placed on

14· ·the information concerning the

15· ·background, character, and conduct of a

16· ·person convicted of an offense which a

17· ·court of the United States may receive

18· ·and consider for the purpose of imposing

19· ·an appropriate sentence.

20· · · · In that regard, and absent an

21· ·objection from the parties, I intend to

22· ·rely upon number one, the evidence

23· ·presented at trial, and upon which the

24· ·jury relied in reaching its verdict; two,

25· ·the evidence presented for purpose of

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Case: 1:18-cr-00043-TSB Doc #: 214 Filed: 12/02/22 Page: 14 of 87 PAGEID #: 5382
·1· ·sentencing; and three, typically I would

·2· ·also adopt as the Court's own, the facts

·3· ·set forth in the PSR, absent any facts to

·4· ·which there is a meritorious dispute.

·5· · · · Is there any objection to that

·6· ·overall approach by the Government?

·7· · · · MS. GLATFELTER:· No, your Honor.

·8· ·Thank you.

·9· · · · THE COURT:· By the Defense?

10· · · · MR. MIEDEL:· No, your Honor.

11· · · · THE COURT:· Very well.· The Court

12· ·adopts the facts presented in the

13· ·presentence report as its own and will

14· ·rely on the evidence presented at the

15· ·jury trial, which I was present at for

16· ·every moment, upon which the jury relied

17· ·in reaching its verdicts.

18· · · · So those are the factual findings

19· ·for purpose of sentencing as required for

20· ·the record.

21· · · · Today it's this Judge's

22· ·responsibility to fashion a sentence that

23· ·is sufficient, but not greater than

24· ·necessary, to accomplish the purposes of

25· ·sentencing.

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Case: 1:18-cr-00043-TSB Doc #: 214 Filed: 12/02/22 Page: 15 of 87 PAGEID #: 5383
·1· · · · The purposes of sentencing include

·2· ·to reflect the seriousness of the

·3· ·offense, to promote respect for the law,

·4· ·to provide just punishment for the

·5· ·offense, to provide adequate deterrence

·6· ·to criminal conduct, to stop it, to

·7· ·protect the public from further crimes

·8· ·from this Defendant, and to provide

·9· ·appropriate correctional and

10· ·rehabilitative treatment in the most

11· ·effective manner.

12· · · · I'm required to consider a number of

13· ·factors in reaching the determination.

14· ·I'm required to consider the nature and

15· ·circumstance of the offense, the history

16· ·and characteristics of the Defendant, the

17· ·kinds of sentences available, the

18· ·sentencing range proposed by the

19· ·non-binding sentencing guidelines.

20· · · · I'm specifically required to avoid

21· ·unwarranted, inappropriate sentencing

22· ·differences or disparities among

23· ·defendants with similar records who have

24· ·been found guilty of similar conduct.

25· · · · I also need to consider the need to

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Case: 1:18-cr-00043-TSB Doc #: 214 Filed: 12/02/22 Page: 16 of 87 PAGEID #: 5384
·1· ·pay the restitution to the victims, when

·2· ·applicable; essentially, the nature of

·3· ·the offense, the history and character of

·4· ·the Defendant, the needs of the public

·5· ·and any victims of the crimes.

·6· · · · One of the factors I just listed is

·7· ·what the sentencing guidelines recommend.

·8· ·I need to establish on the record what

·9· ·the correct guideline calculation is as

10· ·to this Defendant.· The guidelines do not

11· ·bind me, but I need to start my analysis

12· ·there on the recommendation.

13· · · · If I deviate, I need to be able to

14· ·articulate appropriate reasons for that

15· ·decision.· I know the Defense has raised

16· ·a number of objections to the PSR, some

17· ·of which relate to the guideline

18· ·computation.

19· · · · So I'm going to start by

20· ·articulating my current computation,

21· ·which is the same computation in the

22· ·presentence report with the amended loss

23· ·amount, pursuant to the Court's written

24· ·order.· I will then address the

25· ·objections, make any modifications if

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Case: 1:18-cr-00043-TSB Doc #: 214 Filed: 12/02/22 Page: 17 of 87 PAGEID #: 5385
·1· ·needed.

·2· · · · The sentence guidelines are an

·3· ·effort by Congress to bring consistency

·4· ·in sentences by federal judges across the

·5· ·country.· It's basically a math score.

·6· ·It's a graph with two bars.· The vertical

·7· ·bar is the nature of the offense; the

·8· ·more serious, the higher.

·9· · · · The horizontal bar is prior criminal

10· ·convictions, if any.· The more of them,

11· ·the further out on the graph.

12· · · · The points meet in a box which

13· ·recommend the sentence.· I am not bound

14· ·by it.· I do not need to follow it, but I

15· ·have to start there.

16· · · · Here's my guideline calculation.· He

17· ·is convicted of four separate counts,

18· ·including conspiracy and attempt to

19· ·commit economic espionage, Counts 1 and

20· ·3; conspiracy and attempt to commit trade

21· ·secret theft, Counts 2 and 4.· When a

22· ·defendant is convicted of more than one

23· ·count, the Court calculates the

24· ·guidelines by grouping any counts that

25· ·are closely related, and then combining

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Case: 1:18-cr-00043-TSB Doc #: 214 Filed: 12/02/22 Page: 18 of 87 PAGEID #: 5386
·1· ·the individually scored groups in order

·2· ·to determine the total combined offense

·3· ·level.

·4· · · · Here, because the offense levels for

·5· ·all four counts are determined based on

·6· ·total amount of harm or loss, all four

·7· ·offenses are grouped for the purpose of

·8· ·computation.

·9· · · · The calculation for the group is as

10· ·follows:· Basic level is 6.· 22 levels

11· ·are added because the loss amount was at

12· ·least 25 million but not more than

13· ·65 million.

14· · · · The Defendant objected to the loss

15· ·amount.· I already resolved his objection

16· ·and determined and stated in the written

17· ·order that the loss amount is just over

18· ·$50 million.· It's within 25 to

19· ·65 million.· So 22 levels are added.

20· · · · Two levels are added because the

21· ·offense involves sophisticated means.

22· ·Four levels added because the offense

23· ·involved misappropriation of a trade

24· ·secret.· And Mr. Xu knew or intended that

25· ·the offense benefit a foreign government.

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Case: 1:18-cr-00043-TSB Doc #: 214 Filed: 12/02/22 Page: 19 of 87 PAGEID #: 5387
·1· ·Three levels are added because Mr. Xu was

·2· ·a manager and a supervisor of criminal

·3· ·activity and it either involved at least

·4· ·five participants or was, quote,

·5· ·otherwise extensive, end quote.

·6· · · · The Defendant objects to this

·7· ·add-on.· This add-on leaves us with a

·8· ·total offense level of 37.· I want to

·9· ·address additional objections, remaining

10· ·objections before proceeding further.

11· ·Pursuant to Rule 32 of the Federal Rules

12· ·of Criminal Procedure, at the time of

13· ·sentencing the Court, the Judge, must

14· ·resolve any disputed portion of the

15· ·presentence report unless the Court

16· ·determines the ruling is unnecessary,

17· ·either because the matter will not be

18· ·considered or will not affect sentencing;

19· ·moreover, quote, To create a factual

20· ·dispute, a Defendant, single quote, must

21· ·produce some evidence to cause the

22· ·reliability or correctness of the alleged

23· ·fact into question, single quote, the

24· ·burden of production that requires,

25· ·single quote, more than a bare denial,

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·1· ·end quote.· United States versus Cover,

·2· ·6th Circuit 2015, 800 F.3d, 275 at 278.

·3· · · · Here, Mr. Xu has filed remaining

·4· ·objections to the PSR.· Of those

·5· ·objections, on objection 14 -- one

·6· ·objection, objection 14, this is a

·7· ·three-level enhancement for his role in

·8· ·the offense.

·9· · · · The remaining four, specifically

10· ·objections 2, 4, 11, and 12 are directed

11· ·at the presentence report's description

12· ·of the offense conduct.

13· · · · To be clear, the presentence

14· ·report's primary function is to assist

15· ·me, the sentencing judge.· And the

16· ·presentence report's offense conduct

17· ·summary is helpful in cases that are

18· ·resolved pretrial because I haven't seen

19· ·the evidence in those cases at trial.

20· · · · But this Defendant's case went to

21· ·trial.· I presided over it.· I saw and

22· ·heard all the evidence presented.· So

23· ·today, I have no interest in rehashing

24· ·the evidence nor do I have any interest

25· ·in arguing over semantics and how

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·1· ·sentence may be read or construed because

·2· ·I'm the one that's reading the

·3· ·presentence report and I know what it

·4· ·presents and I'm not going to be misled

·5· ·or confused.

·6· · · · Objection 2, 4, 11, and 12, the

·7· ·presentence report description of the

·8· ·offense conduct is erroneous because the

·9· ·Government allegedly didn't produce any

10· ·evidence to support it.· I disagree.

11· · · · The Defendant's objection is a bare

12· ·denial and are focused on the summary of

13· ·the evidence I saw and heard firsthand.

14· ·So those objections are overruled.

15· · · · As to objection 14, Defendant

16· ·objects to the three-level enhancement

17· ·for being a manager or supervisor.· The

18· ·Defense argues that the Government's

19· ·theory at trial focused on the

20· ·Defendant's role in a high-level

21· ·conspiracy perpetrated by the Chinese

22· ·government and that there's no evidence

23· ·the Defendant had any role in planning or

24· ·making policy.

25· · · · In short, the Defense argues that

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·1· ·the evidence reflects nothing more than

·2· ·the Defendant being a simple cog in the

·3· ·wheel.· I disagree.

·4· · · · To be clear, the Defendant's not

·5· ·receiving the higher four-level

·6· ·enhancement for being a leader or

·7· ·organizer.· There were, indeed, plenty of

·8· ·people above him, but he was the deputy

·9· ·director of his bureau.

10· · · · Let me get this from the prior

11· ·order.· Defendant is a citizen of the

12· ·People's Republic of China and a deputy

13· ·division director of the Sixth Bureau of

14· ·a specific Providence of the Ministry of

15· ·State Security, the MSS.

16· · · · The MSS is China's intelligence and

17· ·security agency responsible for

18· ·counterintelligence, foreign

19· ·intelligence, and political security and

20· ·has broad powers in China to conduct

21· ·espionage both domestically and abroad.

22· · · · On behalf of the MSS, this

23· ·Defendant, and other MSS officers,

24· ·engaged in recruiting experts from

25· ·leading aviation companies and then

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·1· ·through the use of alias and

·2· ·misrepresentations bringing the experts

·3· ·to China in order to obtain from them

·4· ·technical information belonging to the

·5· ·experts' employees (sic), i.e. the

·6· ·aviation companies.

·7· · · · So he's the deputy director of his

·8· ·bureau.· Mere labels are not controlling

·9· ·under the guidelines.· The Defendant's

10· ·title was not, however, a mere label.· An

11· ·official ranking in a government position

12· ·is different from someone who calls

13· ·themselves a king pin among dealers.

14· · · · Defendant did have decision-making

15· ·authority in selecting who would be

16· ·targeted, how they would be approached.

17· ·He instructed others within the

18· ·conspiracy.· He reported to higher-ups,

19· ·coordinated activities within his bureau

20· ·or office.· The evidence does not support

21· ·a finding that the Defendant was a

22· ·leader, but he was certainly a manager

23· ·within the smaller subset of the

24· ·extensive organization, which I believe

25· ·requires five involved people, so the

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·1· ·objection is overruled.

·2· · · · That leaves us with where he started

·3· ·with a total offense level of 37 on the

·4· ·vertical bar.· He has no criminal

·5· ·history.· He receives zero criminal

·6· ·points leaves a criminal history category

·7· ·1 out of 6.

·8· · · · Anyone in America with a total

·9· ·offense level of 37 and a criminal

10· ·history category of 1, guidelines

11· ·recommend a sentence of 210 to

12· ·262 months, 17 and a half to almost 22

13· ·years.

14· · · · Are there further objections or

15· ·argument as to the Court's computation of

16· ·the guideline calculation and its ruling

17· ·on the objections from the Government?

18· · · · MS. GLATFELTER:· No, your Honor.

19· ·Thank you.

20· · · · THE COURT:· From the Defense?

21· · · · MR. MIEDEL:· No further objections.

22· · · · THE COURT:· Very well.

23· · · · We established the record for

24· ·purposes of sentencing.

25· · · · I'm prepared to listen carefully to

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·1· ·the statements of lawyers and any

·2· ·statement the Defendant wishes to make,

·3· ·and I would like to hear from the

·4· ·Government first so I can clear the decks

·5· ·and focus fully on the Defense at that

·6· ·time.· Then I will hear from Defendant's

·7· ·attorneys.· And if Mr. Xu wishes to make

·8· ·a statement, his interpreter may read the

·9· ·English version of his statement if he

10· ·feels unable to do it himself.

11· · · · So does the Government wish to be

12· ·heard further as to sentencing beyond the

13· ·sentencing memoranda?

14· · · · MS. GLATFELTER:· Yes, briefly, your

15· ·Honor.· May I approach and use the

16· ·podium, please?

17· · · · THE COURT:· Yes, you may.

18· · · · MS. GLATFELTER:· It's just easier to

19· ·talk to you than at my table.

20· · · · THE COURT:· I'm delighted.· You have

21· ·two microphones and I plan to listen

22· ·carefully.

23· · · · MS. GLATFELTER:· Thank you.

24· · · · Your Honor, as you mentioned, we

25· ·submitted a detailed sentencing

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·1· ·memorandum.· It's 30 pages where we walk

·2· ·through all the 3553(a) factors and their

·3· ·application in the case.· I know the

·4· ·Court has read that carefully from what

·5· ·you said this morning, and the Court

·6· ·presided over the three-week trial here

·7· ·and is intimately familiar with the

·8· ·evidence from that trial and also from

·9· ·all the motion practice the Court has

10· ·endured, so I won't rehash those

11· ·arguments that we made in the memo, but I

12· ·do want to highlight a few points that

13· ·may be helpful for the Court today.

14· · · · So the starting place I think at

15· ·this sentencing is the breadth of the

16· ·economic espionage in this case, the

17· ·scope of the economic espionage the

18· ·Defendant himself -- the Defendant

19· ·himself engaged in is what sets this case

20· ·apart from every other case in the

21· ·country, every case before it, and

22· ·probably every other case after this

23· ·case.

24· · · · The jury convicted the Defendant of

25· ·conspiring to commit economic espionage.

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·1· ·This wasn't a single episode.· This

·2· ·wasn't two episodes.· This was a course

·3· ·of conduct over a five-year conspiracy.

·4· · · · And during this time frame, the

·5· ·Defendant furthered this conspiracy every

·6· ·single day.· He was not your average

·7· ·intelligence officer.· He was a leader.

·8· ·He was a manager in the MSS.· He was the

·9· ·deputy division director and his

10· ·specialty was recruiting and using

11· ·co-optees to gain information from the

12· ·leading aviation companies in the world.

13· · · · Just a few words about the evidence

14· ·at trial.· We presented evidence about

15· ·the Defendant's own conduct, his own

16· ·conduct towards the world's leading

17· ·aerospace and aviation companies

18· ·including Safran, Boeing, Honeywell, and

19· ·General Electric.

20· · · · We presented evidence about his MO,

21· ·how he would entice engineers to China

22· ·who thought they were going to China to

23· ·present information at a university to

24· ·students when in reality they were

25· ·presenting to government officials trying

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·1· ·to steal foreign technology and replicate

·2· ·it.

·3· · · · The Government also presented

·4· ·evidence of how he surreptitiously

·5· ·attempted to gain secret information from

·6· ·unsuspecting guests in China while they

·7· ·were being entertained away from their

·8· ·hotel room, and how he orchestrated and

·9· ·perpetrated an attack on Safran using its

10· ·own co-opted employees to help plant

11· ·mal-ware.

12· · · · And how all of the Defendant's

13· ·conduct was emblematic of the recruiting

14· ·cycle used time and time again by spies

15· ·across the world.

16· · · · Now, I won't belabor the evidence in

17· ·this case, instead what I want to do is

18· ·focus on a few of the Defendant's

19· ·arguments in the Defendant's memo of the

20· ·3553 factor, because we haven't had a

21· ·chance to respond to those.

22· · · · So I just went over the nature and

23· ·the circumstances of the offense here,

24· ·but in terms of the history and

25· ·characteristics of the Defendant.· The

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·1· ·Defendant did submit two translated

·2· ·letters from his father and his wife.

·3· ·They highlight the circumstances and what

·4· ·this case has meant for them.· And the

·5· ·unfortunate reality of criminal offenses

·6· ·is that they not only wreak havoc on the

·7· ·lives of the victims, but the Defendant's

·8· ·family often bears the tragic

·9· ·consequences of their action and the

10· ·choices that the Defendant has made.· And

11· ·that is a fact and usually part of each

12· ·sentencing that the Court conducts in

13· ·this courtroom.

14· · · · The Defendant's memorandum also

15· ·relied on these two letters in discussing

16· ·the Defendant's characteristics or

17· ·character aside from his work with the

18· ·MSS.· In particular, one I would like to

19· ·focus on is, the Defendant's sentencing

20· ·memo discussed his continuing education

21· ·and the fact that he was pursuing degrees

22· ·separate and apart from his job.

23· · · · A piece of evidence that the Court

24· ·has in front of it or that it heard

25· ·during trial and that no one has really

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·1· ·discussed in this context, in fact, the

·2· ·Defendant's history and characteristics

·3· ·is the recording that the Defendant made

·4· ·of a session with his tutor.· This

·5· ·recording, as a reminder, was recovered

·6· ·from the Defendant Xu's iCloud.· It was

·7· ·translated.· It was transcribed.· And it

·8· ·was introduced into evidence in Exhibit

·9· ·31, 31A was the recording and 31B was the

10· ·translation.

11· · · · And we introduced this recording at

12· ·trial to show in Xu's own words --

13· ·Defendant Xu's own words what he said

14· ·about his job, and to show that he was

15· ·working for the MSS and what his job

16· ·duties were.

17· · · · But one of the broader contexts of

18· ·this recording shows another side of him

19· ·separate and apart from his work with the

20· ·MSS.· He was getting tutored, quote,

21· ·unquote, for his -- I think his master's

22· ·degree, his engineering degree.· But he

23· ·wasn't getting tutored on the subject

24· ·matter of the class, he was getting

25· ·tutored on the answers to the exam

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·1· ·questions.

·2· · · · His tutor was a professor from the

·3· ·college, and during the session Xu tried

·4· ·to reassure him that no one would find

·5· ·out about their session.

·6· · · · Defendant Xu was cheating.· He was

·7· ·engaged in deception in an everyday and

·8· ·ordinary experience in his life.· And

·9· ·this wasn't a one-time deal.· He was

10· ·counting on cheating to get through all

11· ·the other classes for the degree.

12· · · · When the tutor, the professor asked

13· ·him how he planned to master a complex

14· ·fluid mechanics course, the Defendant

15· ·responded, oh, fluid mechanics, that will

16· ·be even easier to pass.· I know everyone

17· ·on that floor.

18· · · · So that's an example of the type of

19· ·deception that the Court heard in

20· ·evidence -- the Court saw the evidence of

21· ·that the Defendant was engaged in

22· ·separate and apart from his career or his

23· ·job with the MSS.

24· · · · One of the other striking pieces of

25· ·character evidence I think we mentioned

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·1· ·in our sentencing memo, which shouldn't

·2· ·be forgotten here today, is that when the

·3· ·Defendant traveled to Belgium for a

·4· ·meeting with Dr. Zheng, let's not forget

·5· ·that he had personal photos of

·6· ·Dr. Zheng's family and his child with

·7· ·him.· And he also had approximately

·8· ·$7,000 in cash.· Either to bribe or maybe

·9· ·extort pressure on Dr. Zheng to cooperate

10· ·with him.

11· · · · The history and characteristics of

12· ·the Defendant.· One of the points the

13· ·Defendant made in his sentencing

14· ·submission to the Court was that the

15· ·Government here today is trying to make

16· ·an example of Mr. Xu, and more broadly

17· ·China's policies.· And that is not what

18· ·the Court's job is here at sentencing

19· ·today.

20· · · · That is not what the Government is

21· ·asking.· What the Government is asking is

22· ·the Court to sentence Mr. Xu based on his

23· ·own individual conduct.· We have outlined

24· ·in our sentencing memo, and the pages in

25· ·the sentencing memo are about Defendant

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·1· ·Xu's own conduct.· All of the different

·2· ·acts he undertook during the conspiracy.

·3· ·His attempt to steal from GE, the Safran

·4· ·hacking, the interactions with GE in

·5· ·Chicago, his interactions with Arthur Gau

·6· ·from Honeywell.· These are all things

·7· ·that Mr. Xu did, that he was personally

·8· ·involved in and he perpetrated.

·9· · · · But I want to be clear, the Court is

10· ·required to consider general and specific

11· ·deterrents under 3553(a).· It's

12· ·appropriate for it to consider general

13· ·deterrents and specific deterrents.· Plus

14· ·the Court can give that factor as little

15· ·weight or as much weight as it wishes.

16· ·It would be error not to consider that

17· ·factor at all.

18· · · · The Defendant in his sentencing memo

19· ·raised the Nuremberg defense and said it

20· ·was a consideration for the Court or was

21· ·a factor for the Court to consider.· And

22· ·I would just like to remind the Court

23· ·there is not a shred, not a shred of

24· ·evidence in the record before it that the

25· ·Defendant was forced in any way to do any

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·1· ·of the work that we presented at trial.

·2· ·He was a leader within the MSS

·3· ·organization and he rose through the

·4· ·ranks doing his work.· There's no

·5· ·evidence that he was hesitant or shy

·6· ·about his work.· And there's absolutely

·7· ·no evidence of duress or that he was in

·8· ·any way conflicted about the work that he

·9· ·was doing.

10· · · · Rather, the evidence was he eagerly

11· ·and aggressively pursued his potential

12· ·co-optees and when the risk increased, he

13· ·leaned in.

14· · · · On March 30th, right before his

15· ·Belgium meeting with Dr. Zheng, he wrote

16· ·to his wife, I put a USB drive in a

17· ·hiding spot in eyeglass box in the middle

18· ·of the bookcase and it contains encrypted

19· ·documents.· If something happens, someone

20· ·will come and tell you the password.

21· · · · I will end where I started, your

22· ·Honor.· This case is like no other across

23· ·the country.· There is not a comparable

24· ·case for the Court in terms of a model to

25· ·look at.· We cited a few cases in our

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·1· ·sentencing memorandum.· Those cases

·2· ·involve insiders.· The Defendant cited a

·3· ·few cases in his sentencing memorandum.

·4· ·I would like to point out that those also

·5· ·involve insiders.· They mostly involve

·6· ·defendants who have pled and accepted

·7· ·responsibility for their conduct.· And

·8· ·the other factors we don't know from

·9· ·these case and from the public record is

10· ·whether there were mitigating

11· ·circumstances like cooperation that

12· ·reduced their sentences.

13· · · · There really is no case other in the

14· ·country like this one.· And it might be

15· ·the only one in this country.· Thank you,

16· ·your Honor.

17· · · · THE COURT:· Before I focus on this

18· ·Defendant, I have some questions.

19· · · · MS. GLATFELTER:· Yes, your Honor.

20· · · · THE COURT:· I want you to talk me

21· ·through consecutive versus concurrent,

22· ·briefly, the authority.· I've done my

23· ·research and I know the answer, but I

24· ·want you to state it.· You are asking me

25· ·to run the sentences back-to-back on

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·1· ·these offenses?

·2· · · · MS. GLATFELTER:· Two of them, your

·3· ·Honor.

·4· · · · THE COURT:· Tell me what you are

·5· ·asking.

·6· · · · MS. GLATFELTER:· We are asking for a

·7· ·300-month sentence.· We are asking for

·8· ·180 months on Count 1 to run consecutive

·9· ·to Count 2.· Count 2 would be 120 months,

10· ·which runs consecutive to Count 1.

11· · · · We would ask the Court do the same

12· ·thing with Counts 3 and 4.· Counts 1 and

13· ·2 would run concurrent to 3 and 4.

14· · · · So the same sentence on Counts 1 and

15· ·2, follow the same math on Counts 3 and

16· ·4, and then 1 and 2 and 3 and 4 would run

17· ·concurrent.

18· · · · THE COURT:· But the general rule was

19· ·if they've been convicted of four

20· ·offenses arising out of same nucleus of

21· ·facts, you're required to run them at the

22· ·same time.

23· · · · MS. GLATFELTER:· That's not my

24· ·understanding, your Honor.

25· · · · THE COURT:· Go ahead and tell me

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·1· ·your understanding.· I believe I can run

·2· ·them consecutive, I just wanted to hear

·3· ·your position on the authority.

·4· · · · The only time you have to merge

·5· ·sentences and do them concurrently is

·6· ·when the counts are multiplicitas, i.e.,

·7· ·multiple counts criminalizing the same

·8· ·conduct.· But if each count requires some

·9· ·proof of some fact that the other does

10· ·not, then they are separate crimes that

11· ·can be run consecutive or concurrent, at

12· ·the trial judge's discretion.

13· · · · Do you think that's an accurate

14· ·statement of law?

15· · · · MS. GLATFELTER:· I do, your Honor,

16· ·and none of the counts are multiplicitas.

17· · · · THE COURT:· You don't think he was

18· ·conscripted into serving as a spy?

19· · · · MS. GLATFELTER:· I don't believe

20· ·there's any evidence of that in the

21· ·record.

22· · · · THE COURT:· Very well.

23· · · · Your sentencing memo -- I don't

24· ·think I'm out of hand in telling him what

25· ·I'm telling you, it was a good sentencing

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·1· ·memoranda, helpful to the Court.

·2· · · · MS. GLATFELTER:· Thank you, your

·3· ·Honor.

·4· · · · THE COURT:· Very well.· Okay.

·5· ·Mitigation from the Defense.

·6· · · · MR. MIEDEL:· Thank you, your Honor.

·7· ·Good morning.

·8· · · · THE COURT:· Good morning.

·9· · · · MR. MIEDEL:· There are probably few

10· ·things the Government and the Defense

11· ·agree on in this case, but I think we do

12· ·agree that this is an extraordinary case.

13· · · · According to the Government, Mr. Xu

14· ·is a foreign intelligence officer who

15· ·illegally tried to acquire American

16· ·commercial trade secrets on behalf of his

17· ·country.

18· · · · Also according to the Government,

19· ·this is the first time that a Chinese

20· ·foreign intelligence officer has ever

21· ·been prosecuted in a U.S. court on

22· ·economic espionage.· The novelty of this

23· ·case makes this sentencing, I think,

24· ·different than most.

25· · · · The usual sentencing rules, the

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·1· ·guidelines, similar cases, even the

·2· ·statutory 3553(a) factors, don't

·3· ·necessarily work as easily here as they

·4· ·do in other cases.

·5· · · · THE COURT:· I'd call you out on

·6· ·that.· The sentencing guidelines work,

·7· ·they're not binding.

·8· · · · MR. MIEDEL:· I know.· I know they're

·9· ·not binding.· But the facts and

10· ·circumstances of this case are

11· ·sufficiently different from most other

12· ·cases that I think this -- that makes the

13· ·sentencing kind of unique.

14· · · · In the end, in our view, your Honor,

15· ·the Court has to decide what kind of

16· ·punishment does an alleged intelligence

17· ·officer deserve for allegedly doing his

18· ·job.

19· · · · THE COURT:· Why are we still talking

20· ·about allegedly?

21· · · · MR. MIEDEL:· Well, your Honor,

22· ·Mr. Xu --

23· · · · THE COURT:· Maintains his innocence?

24· · · · MR. MIEDEL:· -- maintains his

25· ·innocence and is likely to appeal.

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·1· · · · So for allegedly acting as directed

·2· ·by his own Government, by his own

·3· ·country.· That is not an easy issue to

·4· ·untangle, your Honor.· I don't envy you.

·5· · · · So I agree with the Government, much

·6· ·ink has been spilled on this case.· You

·7· ·sat through the three-month long trial.

·8· ·I'm sure you sat thinking about the

·9· ·sentencing for a long time --

10· · · · THE COURT:· It was three weeks.

11· · · · MR. MIEDEL:· I'm sorry.

12· · · · THE COURT:· It may have felt like

13· ·that.

14· · · · MR. MIEDEL:· Three-week-long trial.

15· ·I know you've been thinking about the

16· ·sentencing for a long time, so not much

17· ·extra needs to be said and I'm going to

18· ·try to be brief.

19· · · · THE COURT:· Say as much as you wish.

20· · · · MR. MIEDEL:· I'd like to start by

21· ·addressing just a couple of the issues

22· ·that were raised by the Government's

23· ·sentencing memoranda.· First, in its memo

24· ·the Government makes a request for an

25· ·upward departure or an upward variance on

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·1· ·the basis of Mr. Xu's alleged conduct.

·2· ·That Mr. Xu's alleged conduct somehow

·3· ·implicated or endangered national

·4· ·security.

·5· · · · And, your Honor, there is simply no

·6· ·basis in our view to impose a sentence

·7· ·above the guidelines based on a risk to

·8· ·national security, or for you to consider

·9· ·this as a sentencing factor.· The

10· ·guidelines at 5K2.14 say that in order to

11· ·impose a national security enhancement,

12· ·that, quote, danger posed to public

13· ·safety must be substantially in excess of

14· ·the danger ordinarily involved in the

15· ·crime.

16· · · · I think that makes sense to apply a

17· ·similarly rigorous standard to an upward

18· ·variance under 3553(a).

19· · · · But, your Honor, you sat through

20· ·this trial.· You heard all the evidence.

21· ·This case was about many things, but

22· ·risks to national security wasn't among

23· ·them.

24· · · · This case involved the alleged

25· ·effort, as we know, to acquire civilian

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·1· ·aircraft jet engine technology, no more,

·2· ·no less.· I just have to refer you to the

·3· ·testimony of the Government's own case

·4· ·agent, FBI Agent Hull, in this case who

·5· ·testified at page ID 3892, quote,

·6· · · · Question: In this case military

·7· ·technology is not implicated; is that

·8· ·correct?

·9· · · · Answer: No.

10· · · · Nor did this case involve the theft

11· ·of export control material, as the

12· ·Government seems to suggest in a footnote

13· ·to its memo.· According to the

14· ·Government's theory, the Chinese were

15· ·trying to acquire trade secrets to help

16· ·them make their own commercial jet

17· ·engines, not to steal those products

18· ·themselves.

19· · · · So to reference the fact some of the

20· ·resins, for example, that were used in

21· ·making composite material are export

22· ·control is irrelevant.· There is no

23· ·allegation whatsoever that Mr. Xu tried

24· ·to steal any resins.

25· · · · Your Honor, the national security

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·1· ·angle is a red herring.· It's an easy

·2· ·mark because we're talking about spies,

·3· ·intelligence services, and so forth.· But

·4· ·this case is and always was about

·5· ·economic trade secrets.

·6· · · · So a national security enhancement,

·7· ·upward variance, sentencing factor,

·8· ·whatever you want to call it, is not

·9· ·appropriate here.

10· · · · Also a word about the analogous

11· ·similar cases that were cited by the

12· ·Government.· As you know, we cited cases

13· ·to you where people received short

14· ·sentences for economic espionage, trade

15· ·secrets, those cases.· The Government

16· ·cited two cases in its memo where people

17· ·received long sentences of imprisonment

18· ·for economic espionage.

19· · · · Every case is different.· Of course,

20· ·comparing these cases would be hard under

21· ·the best of circumstances.· But, first of

22· ·all, I would like to note that in each of

23· ·the cases cited by the Government, and

24· ·presumably they looked for the harshest,

25· ·longest sentences they could find.· The

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·1· ·defendants were sentenced to at least, at

·2· ·least ten years less than what the

·3· ·Government is asking for here.

·4· · · · More importantly, I wanted to point

·5· ·out that in each of these cases that the

·6· ·Government cited, the Defendant was a

·7· ·naturalized U.S. citizen or a resident

·8· ·who was -- who stole or attempted to

·9· ·steal trade secrets from U.S. companies

10· ·that they worked for and sent to China.

11· ·And those defendants often were doing so

12· ·to line their own pockets.

13· · · · Now, there may be reasons to

14· ·severely punish U.S. citizens or

15· ·residents who betray our country, who

16· ·unlawfully help other countries in

17· ·violation of U.S. laws and do so to

18· ·unjustly enrich themselves.

19· · · · In those cases, deterrents may work.

20· ·It may cause U.S. citizens to think twice

21· ·about helping the Governments of other

22· ·countries.· But we are dealing with here

23· ·a completely different situation.

24· · · · Here Mr. Xu was convicted of trying

25· ·to help his own country.· He was not

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·1· ·committing treason.· He was not stealing

·2· ·from his country.· He was not hurting his

·3· ·country in favor of another country.· He

·4· ·was not doing so for his own greedy

·5· ·interest.

·6· · · · Those crucial differences, your

·7· ·Honor, make those cases, the cases cited

·8· ·by the Government, completely

·9· ·incomparable.

10· · · · Now, the Government spends much time

11· ·in its memo accusing China of trying to

12· ·steal our country's secrets, and

13· ·emphasizing over and over again what a

14· ·serious crime that is, and why that crime

15· ·demands a sentence usually reserved for

16· ·murderers and drug king pins.

17· · · · Now, I think we can all agree that

18· ·trying to steal another country's secrets

19· ·is objectively speaking wrong.· It's

20· ·stealing.· But we cannot, your Honor,

21· ·divorce this situation from the reality

22· ·of the world.

23· · · · You know, there is an old saying

24· ·about glass houses.· Every country tries

25· ·to discover other countries' secrets.

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·1· ·Every country that has a foreign

·2· ·intelligence service is doing precisely

·3· ·that.· That is the purpose of foreign

·4· ·intelligence services.· And our country

·5· ·has the biggest foreign intelligence

·6· ·service in the world.

·7· · · · I remember just a few years back a

·8· ·big controversy about the fact that the

·9· ·NSA was listening in to phone calls by

10· ·German Chancellor Angela Merkel, and that

11· ·was an ally, a friend of ours.

12· · · · Are we trying to discover Chinese

13· ·secrets?· Of course we are.· So the

14· ·distinction is what?· The distinction is

15· ·that China is trying to steal economic

16· ·secrets, obtain private proprietary

17· ·information from American companies?

18· ·Sure.· That is probably something that

19· ·the United States is not routinely doing.

20· · · · But as we noted in our memo, the

21· ·presidential directive on this says that

22· ·economic espionage is not okay if it's

23· ·intended to create an economic advantage

24· ·for private industry, but it is okay --

25· · · · INTERPRETER MURPHY:· Your Honor?

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·1· · · · THE COURT:· Yes.

·2· · · · INTERPRETER MURPHY:· The interpreter

·3· ·Robin has lost her connection with

·4· ·Mr. Xu.

·5· · · · THE COURT:· We'll pause.· Are you

·6· ·willing to pause?

·7· · · · MR. MIEDEL:· I'm willing to pause.

·8· · · · INTERPRETER MURPHY:· Still not

·9· ·connected.

10· · · · THE COURT:· Very well.· We're going

11· ·to take a recess for at least

12· ·ten minutes.· Everybody needs a short

13· ·pause.· We will check in ten minutes

14· ·whether we're up and running.

15· · · · I appreciate your understanding.

16· ·The Court's in recess for ten minutes or

17· ·more.

18· · · · MS. SANTORO:· All rise.· The Court's

19· ·in recess for ten minutes.

20· · · · (A recess was taken from 11:27 to

21· · · · 11:40.)

22· · · · THE COURT:· Thank you.· Please be

23· ·seated.

24· · · · We're back on the record.

25· ·Government lawyers are here.· Defense

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·1· ·team is here.· The Defendant is here.

·2· ·I'm advised that the issue with reaching

·3· ·the Court interpreter has been resolved.

·4· · · · Ms. Murphy, can you hear me?

·5· · · · INTERPRETER MURPHY:· Yes, your

·6· ·Honor.

·7· · · · THE COURT:· Can the Defendant hear

·8· ·Ms. Murphy?

·9· · · · THE DEFENDANT:· Yes.

10· · · · THE COURT:· All right.· We're going

11· ·to proceed.· Counsel was interrupted.

12· · · · Forgive us, please.

13· · · · MR. MIEDEL:· Thank you, your Honor.

14· ·As I was saying, we noted in our memo

15· ·that the U.S. President, in his executive

16· ·order, said that economic espionage,

17· ·while it may not be okay to create an

18· ·economic advantage for private industry,

19· ·is okay if it serves the national

20· ·interest.

21· · · · Now, what happens if the economic

22· ·interest is the national interest, as it

23· ·is for a communist country like China?

24· ·What if the efforts to acquire economic

25· ·secrets are national efforts orchestrated

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·1· ·by the intelligence services?· By

·2· ·definition, the efforts of a country's

·3· ·foreign intelligence service serve that

·4· ·country's national interest; that is the

·5· ·real world.

·6· · · · So, sure, we can be up in arms about

·7· ·what China is doing, but that is a

·8· ·political matter.· That is a matter for

·9· ·international politics.· We use -- our

10· ·country uses our political and economic

11· ·might to encourage other countries to

12· ·conform, to act in accordance with its

13· ·National Ordinance and we use sticks and

14· ·we use carrots.· But we do not use the

15· ·criminal justice system designed to deal

16· ·with individual men and women who have

17· ·broken the law to fight our international

18· ·disputes.· It doesn't make any sense.

19· · · · Your Honor, I know you've had a

20· ·chance to read the letters that were

21· ·submitted to the department of probation

22· ·from Mr. Xu's wife and father.· I think

23· ·they are quite remarkable letters

24· ·beautifully written and they serve as a

25· ·real window into Mr. Xu's life.

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·1· · · · In her letter to the Court, Mr. Xu's

·2· ·wife said something so simple and yet so

·3· ·profound, she said, quote, Both my

·4· ·husband and I are just ordinary human

·5· ·beings.

·6· · · · And that's exactly right.· Mr. Xu is

·7· ·an ordinary human being.· He is not a

·8· ·symbol or a proxy or an example or a

·9· ·message.

10· · · · And Mr. Xu, the man, the ordinary

11· ·human being is easily lost in this case.

12· ·From the earliest days of this case, the

13· ·media reports hysterically labeled him a

14· ·spymaster, an agent, a spook.· He's a

15· ·man.· A man lovingly described in the

16· ·letters of his wife as a husband -- and

17· ·it's easy to forget, that he's a husband

18· ·whose wife desperately loves and needs

19· ·him.· That he's a father, whose now

20· ·14-year-old son has been without his

21· ·father for some of his formative years

22· ·and who needs him too.· That he is the

23· ·son of two elderly parents, one of whom

24· ·is quite ill, who are absolutely

25· ·devastated by what has happened to their

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·1· ·son, as you could tell from his father's

·2· ·letter.

·3· · · · It's easy to forget that Mr. Xu had

·4· ·a life in China outside of his job.· That

·5· ·he read books and played soccer with his

·6· ·son and carried groceries for his

·7· ·neighbors.

·8· · · · Your Honor, for the sentencing we

·9· ·urge you not to lose sight of the

10· ·ordinary human being that Mr. Xu is.

11· · · · Now, as we set forth in our memo, as

12· ·you know, Mr. Xu has already suffered a

13· ·lot in the four and a half years he's

14· ·been in this country.· According to the

15· ·Government, he was a section chief at MSS

16· ·who supposedly spent his time recruiting

17· ·academics, gathering information, doing

18· ·research, contacting sources.· He is no

19· ·James Bond.· And yet that's how he was

20· ·treated.

21· · · · After he arrived in the United

22· ·States, he was put into solitary

23· ·confinement, as you know.· He was treated

24· ·like an escape risk.· He couldn't see or

25· ·speak to other inmates.· He couldn't

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·1· ·breathe fresh air.· He got very sick with

·2· ·COVID before there was any vaccine,

·3· ·shivering alone in his cell thousands of

·4· ·miles away from his family, who worried

·5· ·that their loved one was going to parish

·6· ·in his cell in the United States.

·7· · · · He was treated like a terrorist or a

·8· ·mass murderer that the DOD keeps in super

·9· ·max in Colorado.· Why?· Even according to

10· ·the Government, he was primarily a paper

11· ·pusher.

12· · · · And yet, despite these indignities,

13· ·despite the harshness of these

14· ·conditions, Mr. Xu has been a model

15· ·inmate.· He has never lashed out.· He has

16· ·never disrespected his guards.· He's

17· ·never been written up for even the

18· ·slightest infraction.

19· · · · He has handled this situation, this

20· ·very, very difficult situation with

21· ·remarkable grace.· So we ask your Honor

22· ·to take those circumstances into account

23· ·too in fashioning the appropriate

24· ·sentence.

25· · · · Your Honor, I want to end with this,

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·1· ·as you have pointed out many times, I'm

·2· ·from New York and don't really practice

·3· ·in this jurisdiction.· In fact, today may

·4· ·be the last time that I ever appear in

·5· ·front of you, so I just want to take the

·6· ·opportunity to say that it's been a

·7· ·pleasure appearing in your courtroom.

·8· · · · You are a fair and reasonable judge

·9· ·and I expect you will apply that fairness

10· ·and reasonableness to Mr. Xu.· And in

11· ·light of all the circumstance in this

12· ·case, Mr. Xu is a person, in light of the

13· ·motivations that brought him before you,

14· ·we think a fair and reasonable sentence

15· ·is the 55 months or so he already served

16· ·under such harsh, such brutal conditions.

17· ·It's enough.· It's enough to accomplish

18· ·the goal of sentencing.

19· · · · We also join in the probation

20· ·department in recommending no fine in

21· ·this case is appropriate.

22· · · · Your Honor, if Mr. Xu is what the

23· ·Government says he is, then like those

24· ·Chinese intelligence officers who tried

25· ·to infiltrate an American military base

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·1· ·that we talked about in our memo, or the

·2· ·Russian sleeper agent that got arrested

·3· ·in New York -- in New Jersey ten years

·4· ·ago, Mr. Xu should be sent home.

·5· · · · The United States can fight its

·6· ·economic war with China if it so chooses,

·7· ·but it shouldn't do so in this courtroom.

·8· · · · Thank you.

·9· · · · THE COURT:· Thanks.· The Court has

10· ·appreciated your professionalism.

11· · · · MR. MIEDEL:· Thank you.

12· · · · THE COURT:· The Defendant wishes to

13· ·have his statement to me read by the

14· ·interpreter in English to me at this

15· ·time; is that right?

16· · · · MR. MIEDEL:· Yes, your Honor.

17· · · · THE COURT:· Please proceed.

18· · · · THE DEFENDANT:· (Reading in

19· ·Chinese.)

20· · · · INTERPRETER HARMON:· I have

21· ·received --

22· · · · THE COURT:· Can I interrupt a

23· ·minute?· Is that the entirety of the

24· ·statement or he is just pausing?

25· · · · MR. MIEDEL:· I think he's pausing.

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·1· · · · INTERPRETER HARMON:· He is pausing,

·2· ·so that -- we made arrangements he will

·3· ·read by paragraph and I will interpret --

·4· · · · THE COURT:· Very well.

·5· · · · INTERPRETER HARMON:· -- consecutive.

·6· · · · I have received extraordinarily

·7· ·harsh treatment due to my 49 months in

·8· ·the America prison facility.· The worst

·9· ·examples of the harshness and brutality

10· ·of my confinement conditions are provided

11· ·in the Defendant's sentencing memo.

12· · · · The actual inflicted sufferings I

13· ·have experienced have been far beyond

14· ·what is being told.· Personnel with the

15· ·DOD authorities indicate to me on more

16· ·than one occasion that they only treat me

17· ·that way because they were following

18· ·orders from multiple agencies in the

19· ·upper level of the federal government.

20· · · · I did not know who those agencies

21· ·were until I gained access to a meeting

22· ·note that they included not only the

23· ·Federal intelligence agency, the National

24· ·Security Division, NSD, of the DOJ, but

25· ·also the FBI.

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·1· · · · I've been prosecuted and charged by

·2· ·the NSD through the court system, but

·3· ·also being persecuted in the prison at

·4· ·the same time.

·5· · · · THE DEFENDANT:· (Reading in

·6· ·Chinese.)

·7· · · · INTERPRETER HARMON:· Besides being

·8· ·mistreated, back in the end of 2019, a

·9· ·supervisor in the prosecutor's office

10· ·once tell my attorney with confidence

11· ·that my case would never go to trial.· At

12· ·the time, and through my attorney, he was

13· ·making an effort to solicit a cooperation

14· ·deal between me and the U.S. government.

15· · · · To me, this assertion that there

16· ·would be no trial felt intimidating,

17· ·implying if I did not cooperate, I would

18· ·die in prison.

19· · · · THE DEFENDANT:· (Reading in

20· ·Chinese.)

21· · · · INTERPRETER HARMON:· The

22· ·above-referenced leaking note was the

23· ·product of another solicitation for a

24· ·plea deal conducted between the

25· ·prosecution and one of my attorneys last

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·1· ·February.

·2· · · · I've lost count of how many times

·3· ·those attempts been made.· I do, however,

·4· ·remember clearly that every time they

·5· ·made the attempt, they would also mention

·6· ·my family and scare to me that I better

·7· ·cooperate with the U.S. Government or

·8· ·else.· These felt like an extremely

·9· ·shameless act.· When I could no longer

10· ·tolerate it, I sent the prosecutor a

11· ·legal letter so that they would cease

12· ·that kind of harassment and intimidation.

13· · · · Because of this, my family members

14· ·are too frightened to visit me from China

15· ·for fear of their own personal safety.

16· ·That has result in me and my family being

17· ·alienated for the last four plus years.

18· · · · THE DEFENDANT:· (Reading in

19· ·Chinese.)

20· · · · INTERPRETER HARMON:· Every time that

21· ·the Government approached me, it was

22· ·presented to me that should I choose to

23· ·cooperate, I would be set free or just

24· ·shorter imprison and be award big money.

25· ·Otherwise, I would be locked up for 20 to

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·1· ·30 years.

·2· · · · All of this took place within the

·3· ·grand context of the trade war between

·4· ·U.S. and China.· All the U.S. government

·5· ·has done is to use the legal system as a

·6· ·weapon in the war it wages to further its

·7· ·political agenda.· That has nothing to do

·8· ·with respect and justice.

·9· · · · THE DEFENDANT:· (Reading in

10· ·Chinese.)

11· · · · INTERPRETER HARMON:· Your Honor,

12· ·today I just want to tell you a little

13· ·bit about something that happened behind

14· ·the scene.· Nevertheless, I am just an

15· ·ordinary Chinese citizen who knows

16· ·nothing about politics.· Neither I know

17· ·anything about secrets.· I have never

18· ·figure out what value, if any, I might

19· ·contribute to the U.S. government if

20· ·cooperation did come into play.

21· · · · Why on earth did I got caught into

22· ·this incredible legal battle.

23· · · · THE DEFENDANT:· (Reading in

24· ·Chinese.)

25· · · · INTERPRETER HARMON:· During this

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·1· ·last four years where high-ranking

·2· ·officials from the U.S. government have

·3· ·cite my case at all kinds of political

·4· ·events, they exaggerate facts from it,

·5· ·and make it into a political event.

·6· · · · In fact, the trial itself could have

·7· ·proved my innocence.· It showed that I

·8· ·never made any request from anyone for

·9· ·any trade secret.

10· · · · Conversely, my attorneys have

11· ·discovered from the White House website

12· ·that the American President Joe Biden

13· ·signed an executive order on

14· ·October 7, 2022, that the U.S. government

15· ·is collecting trade secrets from foreign

16· ·countries.

17· · · · Thus, this whole case is merely a

18· ·political farce directed and acted out by

19· ·the U.S. government for

20· ·self-aggrandizement.· It is like the

21· ·thief who demands that the thief be

22· ·caught.

23· · · · THE DEFENDANT:· (Reading in

24· ·Chinese.)

25· · · · INTERPRETER HARMON:· Regardless what

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·1· ·the sentence may be, I will appeal this

·2· ·case because I stand by my innocence.

·3· ·Thank you.

·4· · · · THE COURT:· Sir, I'm glad you had

·5· ·the chance to make that statement to me.

·6· ·You and I, we never talk.

·7· · · · THE DEFENDANT:· Thank you.

·8· · · · THE COURT:· I listened carefully.

·9· · · · Is there further mitigation from the

10· ·Defense?

11· · · · MR. MIEDEL:· No, your Honor.

12· · · · THE COURT:· Does the Government feel

13· ·compelled to reply?

14· · · · MS. GLATFELTER:· Only in response to

15· ·a question posed to me by the Court.· The

16· ·Court asked me what authority there is

17· ·for consecutive sentences.

18· · · · I want to direct the Court to

19· ·Garrett, which is a Supreme Court case

20· ·471 U.S. 773, which says the presumption

21· ·is when Congress creates two distinct

22· ·offenses, is that it intends to prevent

23· ·cumulative sentences.

24· · · · I'd also direct the Court to the

25· ·sentencing guidelines, which of course,

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·1· ·are advisory, but it contemplates this

·2· ·situation in 5G1.2(d) which says that, If

·3· ·the sentence imposed on the count

·4· ·carrying the highest statutory maximum is

·5· ·less than the total punishment, then the

·6· ·sentence imposed on one or more of the

·7· ·other counts shall run consecutively, but

·8· ·only to the extent necessary to produce a

·9· ·combined sentence equal to the total

10· ·punishment. In all other respects,

11· ·sentences on all counts shall run

12· ·concurrently, except otherwise required

13· ·by law.

14· · · · I just wanted to provide the Court

15· ·that authority.

16· · · · THE COURT:· The Court has that

17· ·authority.· We've done our full-blown

18· ·research on every issue presented. I

19· ·didn't see a lot of citations in your

20· ·memo, and I thought I would get your

21· ·help.· I would refer you to the

22· ·Blockburger case, which holds the same

23· ·thing out of the Supreme Court.

24· · · · Does the Government wish to be heard

25· ·further?

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·1· · · · MS. GLATFELTER:· No, thank you, Your

·2· ·Honor.· I apologize for not including

·3· ·those cites in our brief.

·4· · · · THE COURT:· Very well.· The last

·5· ·word from the Defense?

·6· · · · MR. MIEDEL:· Nothing else, your

·7· ·Honor.· Thank you.

·8· · · · THE COURT:· Very well.· My turn to

·9· ·talk.

10· · · · I'm focused on this human being,

11· ·whom I called Mr. Xu, who is the

12· ·Defendant in this case and was convicted

13· ·beyond a reasonable doubt on four counts

14· ·of felonies.

15· · · · I've listened carefully to his

16· ·statement.· My focus is on his acts, his

17· ·own individual conduct, and this is not

18· ·an attempt to send a message to China.

19· · · · I've been a judge for more than

20· ·25 years.· I know what my

21· ·responsibilities are.· And my

22· ·responsibility is to determine what

23· ·sentence is sufficient, but not greater

24· ·than necessary to accomplish the purposes

25· ·of sentencing.

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·1· · · · And I told you the factors I have to

·2· ·consider.· The first is the nature and

·3· ·circumstances of the offense.· As the

·4· ·Government correctly points out, the

·5· ·scope of the espionage perpetrated by

·6· ·this human being was enormous.· It wasn't

·7· ·a one-shot hit.

·8· · · · The nature and the circumstances of

·9· ·the offense are extraordinarily harmful

10· ·to the Defendant at sentencing.· As to

11· ·the nature and circumstance of the

12· ·offense, or perhaps his history and

13· ·characteristics, I need to recognize you

14· ·are a citizen of the People's Republic of

15· ·China.· The loyalty that we have for the

16· ·United States is the same loyalty that

17· ·you have for China.

18· · · · I also need to acknowledge that the

19· ·dynamic of the Chinese government with

20· ·its citizens is very different than the

21· ·United States.· But at the end of the

22· ·day, you were a spy for the Chinese

23· ·government trying to steal America's most

24· ·valuable aviation secrets.

25· · · · You tried to steal the property of

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·1· ·foreign companies knowing full well the

·2· ·damage it would cause the businesses and

·3· ·the countries.

·4· · · · The nature and circumstances of the

·5· ·offense don't help you.· I know you are a

·6· ·young man.· I know you are in a foreign

·7· ·country far from home, away from your

·8· ·family.

·9· · · · I received letters in support.· They

10· ·were extraordinary letters from your

11· ·father and your wife.· They love and

12· ·support you very much.· Not in the terms

13· ·of the offense, but in terms of who you

14· ·are as a human being.· They speak of your

15· ·charitable nature, of your love for your

16· ·family, your care for your community. I

17· ·am not blind to the human impact.

18· · · · Criminal sentencing is the most

19· ·difficult responsibility, I believe, that

20· ·anybody can undertake, and I undertake it

21· ·freely.· And I seek to do what is fair

22· ·and just.

23· · · · The question here is what sentence

24· ·is sufficient, but not greater than

25· ·necessary.· I have to reflect the

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·1· ·seriousness of the offense, promote

·2· ·respect for the law.· The offense is

·3· ·serious.· The sentence needs to reflect

·4· ·that.· It needs to reflect the scale and

·5· ·scope of the offense.· Here the scale and

·6· ·the scope was extraordinary.

·7· · · · I have to consider adequate

·8· ·deterrents.· My sentence needs to deter

·9· ·you.· You are a young man.· You will be

10· ·released from prison at some point.· When

11· ·you return to China, I need to ensure

12· ·that the sentence I impose today deters

13· ·you from going home and picking it up

14· ·again.

15· · · · I also have to consider general

16· ·deterrents.· The Defense says whatever I

17· ·sentence is not going to deter a whole

18· ·country, that is true in a sense, but I

19· ·don't need to deter every human being in

20· ·China.· It's sufficient for the sentence

21· ·to cause others pause.

22· · · · Moreover, the deterrence does not

23· ·need to be specific to China.· My

24· ·sentence today will also deter others,

25· ·even those in the United States, from

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·1· ·engaging in this conduct.

·2· · · · I need to protect the public from

·3· ·further crimes from you, that's similar

·4· ·to specific deterrence.· Same thing.

·5· ·What is the likelihood you're going to

·6· ·pick up where you left off when you

·7· ·return?

·8· · · · My sentence today needs to minimize

·9· ·that risk to the extent possible.· And so

10· ·I'm called upon to determine the most

11· ·appropriate correctional treatment in the

12· ·most effective manner.

13· · · · I told you I have to consider the

14· ·sentences I have available.· I could send

15· ·you to prison on each offense up to the

16· ·statutory maximum.· The guidelines

17· ·recommend 210 to 262 months, 17 to

18· ·22 years.

19· · · · The Government is asking for

20· ·300 months, 25 years, above the

21· ·guidelines.

22· · · · And your attorneys are asking for

23· ·time served.

24· · · · In assessing the 3553(a) factors, I

25· ·need to ensure that the aggregate term of

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·1· ·imprisonment is appropriate to reflect

·2· ·the nature of the offense.· That means I

·3· ·could give you the statutory maximum on

·4· ·all counts, but I still need to consider

·5· ·whether those sentences should be run the

·6· ·same or back-to-back.

·7· · · · The law puts in my discretion

·8· ·whether to run them at the same time or

·9· ·back-to-back or partially back-to-back.

10· ·The only time they merge entirely and

11· ·must be run at the same time is if there

12· ·are multiple counts criminalizing the

13· ·same conduct; that is not here because

14· ·here each count requires proof of some

15· ·fact that the other does not.· They are

16· ·separate crimes.· They run back-to-back

17· ·or not at my discretion.

18· · · · What I need to be certain is that my

19· ·consideration of the 3553(a) factors

20· ·reflect a determination as to what

21· ·aggregate sentence is sufficient, but not

22· ·greater than necessary to accomplish the

23· ·purposes of sentencing.

24· · · · Based on everything I've stated,

25· ·everything I'm required to consider, the

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·1· ·totality of the circumstances, I find

·2· ·that the appropriate sentence to you is

·3· ·180 months imprisonment on

·4· ·Counts 1 and 3, 15 years max, running at

·5· ·the same time.· 120 months imprisonment

·6· ·on Counts 2 and 4, concurrent to each

·7· ·other, or a 10-year max, but 60 months of

·8· ·it shall be run partially consecutive to

·9· ·Counts 1 and 3.

10· · · · So the aggregate term of my ordered

11· ·imprisonment is 240 months, 20 years,

12· ·less time served.

13· · · · The sentence is appropriate in light

14· ·of my consideration of the 3553(a)

15· ·factors and my hard analysis, and the

16· ·full participation in all phases of this

17· ·case.

18· · · · I stated my anticipated sentence.

19· ·I'm required to stop and ask if there are

20· ·any procedural or substantive objections

21· ·from either side before I docket the

22· ·judgment.

23· · · · Is there any from the Government?

24· · · · MS. GLATFELTER:· No, your Honor.

25· · · · THE COURT:· From the Defense?

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·1· · · · MR. MIEDEL:· No, your Honor.

·2· · · · THE COURT:· Very well.

·3· · · · The Court's previously articulated

·4· ·sentence shall be docketed as the final

·5· ·judgment.· The Defendant is to be

·6· ·remanded to the custody of the U.S.

·7· ·marshals.

·8· · · · I'm required to advise you that you

·9· ·have the right to appeal my sentence, if

10· ·you choose to.· You will have to file a

11· ·notice of appeal within 14 days of entry

12· ·of the judgment in this case.

13· · · · I'd ask your lawyers to work with

14· ·you on that.

15· · · · And with that, I believe what we

16· ·have done today is what has been needed

17· ·and has been addressed fully.· Is there

18· ·anything else I need to address before we

19· ·adjourn from the Government?

20· · · · MS. GLATFELTER:· No, your Honor.

21· · · · THE COURT:· From the Defense?

22· · · · MR. MIEDEL:· Yes, your Honor.· We

23· ·would ask that you recommend to the

24· ·Bureau of Prisons that Mr. Xu be

25· ·designated to a facility as close to

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·1· ·New York as possible.· The reason is

·2· ·two-fold.· One, he has been often visited

·3· ·by members of the Chinese consulate based

·4· ·in New York, and also it's likely his

·5· ·appeals lawyer will be based in New York.

·6· · · · THE COURT:· I'm happy to make that

·7· ·recommendation.· It's merely a

·8· ·recommendation.· The Bureau of Prisons

·9· ·makes the decision.

10· · · · I recommend that he be imprisoned as

11· ·close to New York City as his eligibility

12· ·permits.· I heard what he said about his

13· ·confinement.· The Court worked hard to

14· ·make sure that he was attended to in the

15· ·most appropriate manner.

16· · · · Yes?

17· · · · As part of my sentence, he needs to

18· ·pay the $100 special assessment as to

19· ·each of the four counts, $400.

20· · · · There is no supervised release on my

21· ·sentence.

22· · · · Is there something else?

23· · · · THE CLERK:· No fine.

24· · · · THE COURT:· No fine.

25· · · · Anything else?

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·1· · · · THE CLERK:· No, that's it.

·2· · · · THE COURT:· Godspeed.· The Court

·3· ·intends to recess.

·4· · · · MS. SANTORO:· All rise.· The Court

·5· ·is now in recess.

·6

·7· · · · · · · · ·- - -

·8· · HEARING ADJOURNED AT 12:12 P.M.

·9· · · · · · · · ·- - -

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·1· · · · · · · ·C E R T I F I C A T E

·2

· · ·STATE OF OHIO· · · ·:

·3· · · · · · · · · · · ·:· SS

· · ·COUNTY OF CLERMONT :

·4

·5· · · · · · · · I, Kathy S. Simpson, RPR, the

·6· ·undersigned, a duly qualified and commissioned notary

·7· ·public within and for the State of Ohio, do certify

·8· ·that the foregoing is the hearing given at said time

·9· ·and place; and that I am neither a relative of nor

10· ·employee of any of the parties or their counsel, and

11· ·have no interest whatever in the result of the

12· ·action.

13· · · · · ·IN WITNESS WHEREOF, I hereunto set my hand

14· ·and official seal of office at Cincinnati, Ohio, this

15· ·1st day of December, 2022.

16

17

· · · · · · _________________________________

18· · · · · ·Kathy S. Simpson, RPR

· · · · · · ·Notary Public - State of Ohio

19· · · · · ·My commission expires March 21, 2027

20

21

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