1 

26468554.3 

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.

:

:

:

:

:

:

:

:

:

:

:

:

Case No. 1:18-cr-00043 

Judge Timothy S. Black 

DEFENDANT’S REPLY IN SUPPORT 

OF MOTION FOR A 

BILL OF PARTICULARS 

[REDACTED] 

Defendant Yanjun Xu (“Defendant or “Mr. Xu”), by and through counsel, submits this 

Reply in Support of his Motion for Bill of Particulars and seeks to clarify the allegations in the 

Indictment so that Mr. Xu can understand the charges against him and prepare for trial. 

INTRODUCTION 

Although the government prepared an indictment that was enough to obtain initial 

cooperation from Belgian authorities, the Indictment remains constitutionally deficient and 

cannot secure a conviction under American law. (See Motion to Dismiss Counts I and II, Doc. 

55) (“MTD”); (Reply in Support of Motion to Dismiss Counts I and II, Doc. 72) (“MTD 

Reply.”) Accordingly, Mr. Xu sought additional information to clarify the charges against him 

through a request for a bill of particulars, but the government has refused. 

The government’s Memorandum in Opposition to Defendant’s Motion for Bill of 

Particulars regarding Counts 1 and 2 (“Response”) largely consists of three arguments. First, the 

government asserts that Mr. Xu does not have a substantive right to a bill of particulars because 

the Indictment is sufficiently clear. (Response in Opposition to Defendant’s Motion for a Bill of 

Particulars Regarding Counts 1 and 2 (Doc. 69), at 2-3, 4-9) (“Opp’n.”) For the reasons outlined 

Case: 1:18-cr-00043-TSB Doc #: 73 Filed: 01/13/20 Page: 1 of 19 PAGEID #: 569
2 

26468554.3 

in Mr. Xu’s Motion for a Bill of Particulars and Motion to Dismiss Counts I and II (and Reply in 

support thereof), the Indictment itself is too vague for the Court to sustain.1 But if the Court 

chooses not to dismiss Counts I and II, then as a matter of basic fairness it should require the 

government to file a bill of particulars. 

Second, the government has taken the remarkable position that Mr. Xu should have asked 

for clarification earlier, so now it no longer has to help. As explained below, Mr. Xu’s motion is 

timely, as the timing was addressed and agreed to by the Court and the parties several months 

ago. But the government’s argument is also disingenuous. The government argues that there is 

no need for a bill of particulars because it has provided Mr. Xu with mountains of discovery. Mr. 

Xu and counsel took the government’s argument in good faith and waded through discovery to 

see if it clarified the charges. It did not. Thus, Mr. Xu now asks the government to provide in the 

form of a bill of particulars the clarity that it promised (and failed to deliver) in the Indictment 

and discovery. 

Third, the government insists that the Court should not order a bill of particulars because 

the government can cure any vagueness in the Indictment by dumping its entire discovery file on 

Mr. Xu and telling him to sort it out. The government reasons that a bill of particulars is meant to 

prevent a defendant from being surprised at trial, but if the government turns over everything it 

has, then there can be no surprises. This Reply focuses largely on that argument, which rests on 

faulty assumptions and a faulty application of the case law upon which the government relies. 

1

 Pages 4-8 are largely copied from the government’s Response in Opposition to the Motion to 

Dismiss Counts I and II. Mr. Xu has thoroughly addressed those arguments in his Reply in 

support of that motion, and incorporates that Reply by reference here. This Reply will focus on 

the unique arguments raised in opposition to the request for a bill of particulars. 

Case: 1:18-cr-00043-TSB Doc #: 73 Filed: 01/13/20 Page: 2 of 19 PAGEID #: 570
3 

26468554.3 

As explained further below, the government’s position is full of holes. It is impractical; 

the government has delivered a voluminous amount of discovery on Mr. Xu and directed him to 

ferret out what the government thinks he did wrong, despite alleging the criminal conduct here in 

the broadest terms imaginable: Mr. Xu allegedly conspired with an entire intelligence agency 

and “others known and unknown to the Grand Jury,” targeting trade secrets and “aviation 

technology” from companies “around the world.” (Indictment (Doc. 1), ¶¶ 12, 13(b).) The 

government can defend that impractical task only by presuming Mr. Xu’s guilt; the government 

believes Mr. Xu can determine what evidence is relevant because he knows what he did wrong. 

But that view turns criminal law and the presumption of innocence on its head. Finally, the 

government’s Response make it clear that the government is and has been expanding the scope 

of alleged criminal conduct far beyond anything contemplated when it filed the Indictment and 

sought Mr. Xu’s extradition from Belgium. That creeping expansion is both fundamentally unfair 

to Mr. Xu, and forbidden by the U.S.-Belgium extradition treaty used to secure his extradition to 

the United States. 

Mr. Xu is not asking for extraordinary measures. He is not asking for more discovery and 

he is not asking for the government’s trial strategies. He is simply requesting some clarity as to 

the charges against him so that he may adequately prepare for trial. Neither the government nor 

the Court should require him to prepare as though he is already guilty, nor should they require 

him to prepare for a trial that the government is changing and expanding in real time. The Court 

should instead dismiss Counts I and II altogether (See MTD; MTD Reply), or at least order the 

government to clarify and stabilize the charges it intends to take to trial. 

Case: 1:18-cr-00043-TSB Doc #: 73 Filed: 01/13/20 Page: 3 of 19 PAGEID #: 571
4 

26468554.3 

ARGUMENT 

I. A Bill of Particulars is necessary in order to remedy the vagueness in the 

Indictment. 

A. The government’s authorities do not establish that discovery can cure a 

vague Indictment. 

The government begins its Response by accurately reciting that a bill of particulars is 

meant to minimize the danger of unfair surprise at trial, and should be required where the 

defendant would suffer “actual surprise and substantial prejudice.” (Opp’n at 2.) The accuracy 

ends there. The government next states that “[a]ny claimed surprise or prejudice is determined by 

examining the indictment and other facts known to the defendants, from whatever source,” and 

cites United States v. Phibbs, 999 F.2d 1053 (6th Cir. 1993) and United States v. Rey, 923 F.2d 

1217 (6th Cir. 1991). (Opp’n at 2.) And from there, the government asserts that because Mr. Xu 

has all of the government’s discovery, he knows all of the relevant facts and may sort through 

them for himself. But neither Phibbs nor Rey say anything of the sort. 

In Phibbs, the court denied a defendant’s request for a bill of particulars identifying the 

individuals he allegedly supervised in a drug distribution ring. A few facts—all omitted from the 

government’s recitation—stand out. The first is that the defendant had already pleaded guilty to 

previous charges of drug distribution, and believed that the prior plea deal barred any future 

prosecutions for drug dealing. 999 F.2d at 1080-82. Thus in Phibbs, the government could say 

with a straight face that the defendant knew what he had done wrong, and could therefore sort 

out for himself the basis of the charges. Second, the court explained that the defendant was not 

surprised by the list of alleged subordinates at trial because: (a) three of the supervisees were codefendants in the case, (b) two supervisees were known to be government witnesses and the 

defendant cross-examined them at a pre-trial hearing, (c) a sixth supervisee “was included in the 

government’s supplemental bill of particulars,” and (d) the seventh supervisee was the 

Case: 1:18-cr-00043-TSB Doc #: 73 Filed: 01/13/20 Page: 4 of 19 PAGEID #: 572
5 

26468554.3 

defendant’s ex-wife who lived with him during the conspiracy, and she was named by the 

government during the grand jury hearing—testimony the government produced to the defendant 

as Jencks Act material. Id. at 1086. Had the government given Mr. Xu the same kind of 

information it did the defendant in Phibbs, the parties would not be litigating this point. But the 

government has instead refused to provide a bill of particulars to Mr. Xu (much less a 

supplemental bill), it objects to turning over Jencks Act material sufficiently in advance of trial 

(the subject of another pending motion), and it has not named witnesses and made them available 

for pre-trial cross-examination. This case is a far cry from Phibbs. 

The government’s representation of Rey is similarly abbreviated. Rey involved yet 

another drug distribution charge. Rey does not stand for the proposition that the government need 

not ever file a bill of particulars or identify the defendant’s alleged co-conspirators. It opined 

only that the co-conspirators do not have to be named if the government proves an agreement 

and the defendant cannot articulate any prejudice in preparing his defense. Rey, 1222-23. But for 

the reasons set forth in the motion to dismiss and reply in support, the government has not 

alleged a criminal “agreement” to steal trade secrets in the Indictment nor provided any 

discovery suggesting such agreement. (See MTD, Doc. 55); (MTD Reply, Doc. 72.) 

It bears mentioning at this point that the government relies almost exclusively on drug 

distribution cases involving small, contained conspiracies. Those cases typically involve a 

controlled purchase of narcotics or a testifying co-conspirator, and often the execution of a 

search warrant on the defendant’s person, home, or vehicle, which also advises the defendant of 

the details of the alleged crime. And under those circumstances, it might indeed be unlikely that 

the defendant would be surprised or prejudiced by the government not naming his handful of 

confederates. 

Case: 1:18-cr-00043-TSB Doc #: 73 Filed: 01/13/20 Page: 5 of 19 PAGEID #: 573
6 

26468554.3 

But the government has done something altogether different here. The government has 

charged Mr. Xu as the representative of China standing as proxy for every nefarious act the 

government believes might ever have been committed by the Chinese government or by any one 

of its nearly 1.4 billion citizens anywhere in the world. It has charged a conspiracy involving 

individuals not only unknown to Mr. Xu, but unknown to the Grand Jury. And the conspiracy is 

extraordinarily broad, encompassing the entire intelligence apparatus of the most populous 

nation on earth (and others). It simply cannot be honestly analyzed by reference to small-time, 

small-town drug conspiracies run out of someone’s basement or apartment by a defendant and 

his ex-wife. 

Nothing in Phibbs, Rey, or any other case cited by the government allows the government 

to proceed to trial with a constantly shifting and expanding theory of the case without giving the 

defendant some idea of what it intends to try. If the government believes there was indeed a 

conspiracy in which Mr. Xu was involved, the government must be required to lock in its 

theories and clearly announce what those theories are. The government cannot be allowed to 

misuse its vague Indictment as an ever-widening cache of criminal charges and alleged criminal 

activity in order to punish an entire nation through the presence of one individual. 

B. Discovery has not cured the vagueness in the Indictment. 

The government repeatedly asserts that there can be no surprise or prejudice in this case 

because it has provided Mr. Xu with mountains of discovery. The government apparently 

expects Mr. Xu to divine for himself what the government believes he did wrong, and to sift 

through discovery without any frame of reference for what the case is really about. 

One problem with the government’s position is that it is simply impractical. The 

government has dumped an enormous amount of discovery on Mr. Xu, and continues to drop 

Case: 1:18-cr-00043-TSB Doc #: 73 Filed: 01/13/20 Page: 6 of 19 PAGEID #: 574
7 

26468554.3 

additional discovery at sporadic intervals.2 Mr. Xu is simply trying to understand the scope of the 

charges against him so that he might make sense of the mountains of discovery which are largely 

untranslated, and for which the government has refused to identify exculpatory and impeaching 

evidence as is required under Brady and Giglio.

3

See Brady v. Maryland, 373 U.S. 83, 87 (1963) 

and Giglio v. United States, 405 U.S. 150 (1972). 

The second problem is that the government assumes that Mr. Xu is guilty, and it insists 

that the parties conduct themselves as though Mr. Xu is guilty and must prove his innocence at 

trial. The government has refused to identify the actual conspiratorial agreement, the participants 

to the conspiracy, the trade secret or proprietary information, the victims of the conspiracy (other 

than GE Aviation), or the locations where the conspiracy allegedly occurred.4 The government 

said that the discovery came from electronic devices, 

, so Mr. Xu is in the best position to know 

what the discovery contains. That is, the government believes that Mr. Xu can read through the 

discovery and ferret out the crime the government believes he committed because he is guilty 

and knows what he did wrong. But the presumption of innocence does not allow the government 

or the Court to proceed that way. The government bears the burden of proving that Mr. Xu is 

guilty; it therefore cannot assert as a guiding litigation principle that Mr. Xu cannot be surprised 

at trial because he is aware of the proof of his own guilt. 

2

 The government’s last discovery production occurred on December 3, 2019 at the status 

conference. (Transcript of December 3, 2019 Status Conference, at 21:24-22:3) (“Dec. 3, 2019 

Tr.”). The discovery contained “some translations and some other matters that came in sort of 

later, some of it from overseas.” (Id. at 22:2-3.)

3

See Defendant’s Motion for Disclosure of Brady, Giglio, and Jencks Act Materials (Doc. 54). 

4

See MTD (Doc. 55); MTD Reply (Doc. 72). 

Case: 1:18-cr-00043-TSB Doc #: 73 Filed: 01/13/20 Page: 7 of 19 PAGEID #: 575
8 

26468554.3 

The government’s Response here and in response to the motion to dismiss reveal yet a 

third problem. It is clear that during the fifteen months since Mr. Xu was extradited from 

Belgium and “temporarily” detained, the government has taken advantage of the Indictment’s 

vague and sweepingly broad allegations as a means to expand the charges beyond what the 

government originally contemplated (and beyond what it outlined to the Belgian government to 

secure Mr Xu’s extradition). Moreover, the government continues to investigate and reshape the 

conduct it intends to charge at trial. The government cannot meaningfully say that Mr. Xu can 

prepare a defense when the government itself continues to expand what it believes to be the 

relevant, triable conduct. 

The government’s various memoranda have shoehorned into this case additional criminal 

conduct, participants, and victims neither referenced in the Indictment nor contemplated at the 

time the Indictment was issued. Where the Indictment alleges Mr. Xu conspired to steal from 

aviation companies, the government’s response to the motion to dismiss accuses him of plotting 

against “non-Chinese companies and countries.” (Response in Opposition to the Motion to 

Dismiss, Doc. 68 at 6, 11-12.) Meanwhile the Response here attempts to 

conduct nowhere reflected in the Indictment or the extradition papers. (Opp’n at 9-10.) In other 

words, the government is continuing to investigate its case more than a year after Mr. Xu was 

extradited the United States so that it might find Mr. Xu guilty of crimes or conspiracies that fall 

far outside its Indictment and its cooperation agreement with Belgium. 

As the Indictment creeps, so does the government’s attempt to now broaden the 

conspiracy from one to two, to increase the number of victims from just GE Aviation to multiple 

victims still unknown, from an attempt to steal GE Aviation’s trade secrets to multiple attempts 

Case: 1:18-cr-00043-TSB Doc #: 73 Filed: 01/13/20 Page: 8 of 19 PAGEID #: 576
9 

26468554.3 

to steal trade secrets generally from the aviation industry as a whole, from non-Chinese 

companies outside of China, then entire countries (other than China)5, 

 On top of all this, the government is promising to show that the conspirators all 

“knew each other, communicated with each other, and worked with each other” on two “distinct” 

conspiracies that are apparently supported by the exact same conduct in the Indictment. (Opp’n 

at 5, 11; Indictment ¶¶ 13-14, 17-18.) If the government is not required to inform a defendant as 

to the basic who, what, where, and when, of a charged conspiracy, how then is a defendant 

supposed to prepare for trial and avoid unfair surprise? And how is a defendant supposed to do 

so if the who, what, where, and when are constantly changing as the government keeps him 

solitarily confined in pre-trial detention? 

The government’s ever-shifting theory of the case creates still a fourth flaw in its 

argument. Under the Rule of Specialty in the U.S.-Belgium extradition treaty, the government 

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

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

U.S.-Belgium Extradition Treaty, Art. 15.6 Mr. Xu requests a bill of particulars in part to ensure 

that the government is abiding by its treaty obligations. 

5

See United States’ Memorandum in Opposition to Defendant’s Motion to Dismiss Counts 1 and 

2 (Doc. 68) at 6, 12. 

6

Instrument Amending the Treaty of April 27, 1987 Between the UNITED STATES OF 

AMERICA and BELGIUM, Treaties and other international Acts Series 10-201.3 (Dec. 16, 

2004),https://www.state.gov/wp-content/uploads/2019/02/10-201.3-Belgium-Extradition.pdf. 

Case: 1:18-cr-00043-TSB Doc #: 73 Filed: 01/13/20 Page: 9 of 19 PAGEID #: 577
10 

26468554.3 

C. The government cannot proceed to trial without identifying a basic who, 

what, when, and where of the charges to be tried. 

Mr. Xu has explained elsewhere that the Indictment is too vague to adequately inform 

him of the charges against him, to allow him to avoid double jeopardy, or to comply with the 

Rule of Specialty in the U.S.-Belgium Extradition Treaty. (MTD; MTD Reply) He will not 

rehash those arguments here, but a number of the government’s case citations merit close 

analysis, and ultimately confirm Mr. Xu’s position here and in the motion to dismiss. 

1. The government should be required to identify co-conspirators. 

The government maintains that it does not have to identify co-conspirators, either in an 

indictment or a bill of particulars. While these issues are also addressed in the motion to dismiss, 

the government specifically relies on United States v. Crayton, 357 F.3d 560, (6th Cir. 2004); 

United States v. Largent, 545 F.2d 1039 (6th Cir. 1976); and United States v. Page, 575 F. App’x 

641 (6th Cir. 2014) in its argument here.7 But none of those cases say quite what the government 

would like. For the reasons outlined below and in the motion to dismiss, the government must 

identify Mr. Xu’s alleged co-conspirators with some particularity. 

Begin with Crayton, another drug conspiracy case, which is wholly inapposite here. The 

defendant, Crayton, and his alleged co-conspirator were tried together; the trial ended with the 

jury deadlocked on the charges against Crayton. After the first trial, Crayton moved for a bill of 

particulars to gather more information about the alleged conspiracy, which the court denied. 

Crayton was convicted at a second trial, which was “virtually identical” to the first, with the 

exception of a rebuttal witness who named potential co-conspirators. Crayton, 357 F.3d at 568. 

The Sixth Circuit affirmed the conviction and found no prejudice from the denial of the motion 

7

 The government also cites Rey, which is addressed above. 

Case: 1:18-cr-00043-TSB Doc #: 73 Filed: 01/13/20 Page: 10 of 19 PAGEID #: 578
11 

26468554.3 

for a bill of particulars because “[t]he Government was not aware of [the rebuttal witness’s] 

testimony until the day before her rebuttal, and it is thus unlikely that a bill of particulars given 

before trial would have provided Clayton with helpful information.” Id. at 569. The court 

explained that the rebuttal testimony was a surprise—it simply was not a surprise that a bill of 

particulars would have avoided. Id. Suffice it to say, Mr. Xu has not had the luxury of seeing the 

government’s theory of the case in a trial already, nor is the government in a position to say that 

a bill of particulars would do Mr. Xu no good because the government might come by new 

evidence later. 

Largent is likewise inapplicable here. In an brief statement without analysis, the Sixth 

Circuit declared that a motion for a bill of particulars seeking “the names of all the Government’s 

witnesses” was overbroad. Largent, 545 F.2d at 1043-44. Mr. Xu has not asked for the names of 

all of the government’s witnesses; he has simply asked for a clear description of the crime he is 

accused of committing—one that narrows the universe from an entire intelligence apparatus 

targeting aviation around the world to whatever it is the government actually intends to pursue at 

trial. 

Finally, Page appears to be the only case the government cites that actually addresses the 

role of discovery in clarifying an indictment. And Page recognizes Mr. Xu’s objections: the 

government cannot remedy an erroneous denial of a bill of particulars “by offering up mountains 

of documents in discovery instead.” Page, 575 F. App’x at 643 (internal quotations omitted). The 

difference in Page was that the defendant “[did] not claim that his discovery process was in fact 

unmanageable or that he was unable to prepare a defense.” Id. But here, Mr. Xu has explained at 

length why the vague Indictment and “mountains of [untranslated] documents” are in fact 

unmanageable and prevent him from preparing a defense. 

Case: 1:18-cr-00043-TSB Doc #: 73 Filed: 01/13/20 Page: 11 of 19 PAGEID #: 579
12 

26468554.3 

The Response adds a new wrinkle. 

 

2. The government should be required to identify the time and location 

of the conspiracy. 

As written, the Indictment denies Mr. Xu the opportunity to learn when the agreements to 

steal unidentified trade secrets were allegedly formed or where the alleged acts occurred. (See

Indictment ¶ 12 (“Southern District of Ohio” and “elsewhere”).) In response to the request for 

particularity, the government simply concluded “there is no basis for a bill of particulars to 

identify the ‘location and timing’ of the conspiracies.” (Opp’n at 10.) In its opposition, the 

government ignored the authority cited by Mr. Xu and affirmatively missed its own mark 

arguing “[a]s to the ‘location’ of the conspiracies, Rule 7 does not entitle a defendant to learn all 

overt acts that might be proven, or the names of all co-conspirators.” (Opp’n at 8.) Indeed, there 

is ample authority demonstrating the Court may order the government to disclose the specific 

locations and times when the crimes allegedly occurred in order to enable the defendant to 

investigate the charges and prepare his defense. (See Defendant’s Motion for a Bill of 

Case: 1:18-cr-00043-TSB Doc #: 73 Filed: 01/13/20 Page: 12 of 19 PAGEID #: 580
13 

26468554.3 

Particulars, Doc. 56, at 11-12 (citing numerous examples in support, including: United States v.

Gonzales, No. 2:07-CR-071-JDH-2, 2007 WL 1245884 (S.D. Ohio Apr. 27, 2007) (known 

locations outside the Southern District of Ohio); United States v. Lawrence, No. C2-05-CR-11, 

2005 WL 8159643 (S.D. Ohio Oct. 7, 2005) (granting motion for bill of particulars and ordering 

the government to include additional information such as the nature of acts or statements 

defendant allegedly engaged in or uttered during the crime).) 

The government also argues that because the discovery allegedly came from 

 Mr. Xu should be able to pick out some additional 

conspirators from amongst the broad discovery which came from a wide variety of sources, 

 Opp’n at 8. The government’s position however, wrongly presumes that Mr. Xu is 

guilty, that Mr. Xu understands and agrees with the government’s charges, and that even though 

the grand jury did not know , Mr. Xu 

should somehow know which individuals 

 were engaged in the unknown conspiracy. 

The purpose of a bill of particulars is to ensure a defendant is informed of the charges 

against him to avoid being subjected to unfair surprise. Whether through name identification or 

reasonable description, Mr. Xu is entitled to know with whom he has allegedly conspired. The 

government’s strategy to hide the ball and argue that it need not disclose to Mr. Xu with whom 

he is charged with conspiring circumvents the right to a fair trial and effectively ensures Mr. Xu 

will be unfairly surprised and prejudiced as a result. The government’s provision of 

Case: 1:18-cr-00043-TSB Doc #: 73 Filed: 01/13/20 Page: 13 of 19 PAGEID #: 581
14 

26468554.3 

Mr. Xu is entitled to know or have a reasonable way to figure out with whom the government 

thinks he conspired. 

3. The government should be required to identify the alleged victims. 

The Indictment charges Mr. Xu with allegedly conspiring to steal unidentified trade 

secrets from only one single company, “Victim Company A” (Indictment ¶8) which was 

confirmed to be GE Aviation. Indictment ¶2 (“(“THE VICTIM COMPANY AND THE 

PROPRIETARY INFORMATION 6. Victim Company A has offices in the Southern District 

of Ohio.” (emphasis added).). In its Response, the Government seeks to expand the original 

charges to add multiple new victims including unidentified and unnumbered “non-Chinese 

companies and countries.” (Opp’n at 4.) Mr. Xu’s request for clarity through a bill of particulars 

is not a license for the government to re-charge its case to include responsibility for harm 

allegedly caused to additional victims. The government must be required to adhere to the 

allegations contained in the Indictment and clarify that its version of justice is only sought for 

alleged harm having been caused to one victim. 

4. The government should be required to identify the conspiracy it 

intends to charge, rather than to amend the Indictment by stealth. 

The government’s memoranda also improperly attempt to expand the Indictment by 

arguing that the recent discovery productions contain new and unrelated conspiracies including, 

for example, that Mr. Xu and 

Case: 1:18-cr-00043-TSB Doc #: 73 Filed: 01/13/20 Page: 14 of 19 PAGEID #: 582
15 

26468554.3 

 Similarly, for the first 

time in the government’s Response, the government also tried to add new conspiracies not 

contained in the Indictment including, to: 

 

The government also tried to bolster its expansion strategy by arguing Counts 1 and 2 

reflect two separate conspiracies. (Opp’n at 4.) However, this attempt to cause the scope of the 

Indictment to creep wider is belied by the government’s acknowledgment that the charged 

conduct for both counts incorporates the “same conspiracy by Xu” (“Count 2 alleges that 

defendant Xu engaged in a similar conspiracy [as Count 1] to steal trade secrets”), the same 

objective (“[t]he object of the conspiracies was to obtain technical aviation information, 

including trade secrets”), and spans the same time frame (“both conspiracies occurred from 2013 

to at least April 1, 2018.”). (Opp’n at 4, 11.) 

Case: 1:18-cr-00043-TSB Doc #: 73 Filed: 01/13/20 Page: 15 of 19 PAGEID #: 583
16 

26468554.3 

. In other 

words, Mr. Xu is simply asking the Court to require the government to issue a bill of particulars 

that clarifies the Indictment’s original charges without adding anything new. 

In sum, the government has refused to identify the co-conspirators or the actual 

conspiratorial agreement, is attempting to expand the number of victims and conspiracies (and 

give first notice of the same) through opposition memoranda, and now refuses to disclose the 

timing and location of the alleged conspiracy. Constitutional principles of fairness and justice 

and even ordinary reasonableness require that a criminal defendant be adequately informed of 

the charges against him. The government simply cannot withhold relevant information that it has 

in its possession at the expense of Mr. Xu being able to adequately prepare for trial. 

II. Mr. Xu’s motion is timely. 

Defendant’s motion is timely. The Court has authority to order the government to provide 

a bill of particulars to provide clarification necessary to remedy an impossibly vague indictment. 

Fed. R. Crim. P. 7(f) (a defendant may move for a bill of particulars more than 14 days after 

arraignment if the court permits.). 

In this case, the timing of Defendant’s motion was previously addressed and agreed to by 

the Court and the parties. Specifically, during the April 12, 2019 conference, the Court asked the 

parties to discuss the status of the case and the anticipated timing for filing their respective 

motions including CIPA, Brady, and others. (See April 12, 2019 Status Conference Transcript, 

Doc. 44, at 41:4-45:25.) On behalf of the government, Mr. Mangan acknowledged “[o]bviously, 

there’s, it sounds like, a series of motions that we will need to address at some point.” (Id. at 

42:15-16.) At the Court’s suggestion, the parties agreed to discuss relevant deadlines together. 

(Id. at 43:2-45:4.) The Court recognized that “[i]t may be easier to wait to set a motion deadline 

or to even discuss a motion deadline until you know how long it will take for your client to get 

Case: 1:18-cr-00043-TSB Doc #: 73 Filed: 01/13/20 Page: 16 of 19 PAGEID #: 584
17 

26468554.3 

the discovery.” (Id. at 45:16-25.) The parties both understood that the motion deadline would be 

set at a later date and the government cannot now shirk its duty to provide adequate notice to the 

Defendant. 

The government is correct that a bill of particulars is designed to address a deficiency in 

the Indictment, such as that which has occurred here. (Opp’n at 2.) And yet the government 

contradicts itself by arguing on the one hand that the defense “had many months to review” and 

“the benefit of thousands of pages of discovery” and shortly thereafter arguing that any lack of 

certainty should have been “based on the face of the Indictment” so there “was no need for the 

eleven-month delay in raising this motion.” (Opp’n at 2.) In further contradiction, during the 

December 3, 2019 status conference, the government acknowledged that it had just made its 

seventh production of discovery at that time and recognized that “it’s going to take time for them 

to go through it.” (Dec. 3, 2019 Tr. 22:12-13.) It appears that the government’s actual concern is 

that if more information or clarification is provided, then Mr. Xu will be informed well-enough 

to defend himself; absent this concern, there could be no harm in clarifying the existing charges. 

Whatever the government’s actual position, the passage of less than a year after arraignment, the 

mountains of disjointed and selectively translated discovery that has been dumped (and continues 

to be dumped), and the continuing vagueness of the Indictment only compound the Defendant’s 

need to understand the conduct against which he is required to defend. Mr. Xu is not asking the 

government to create something new or unique, in fact, the government must be prohibited from 

doing that; rather, Mr. Xu is simply asking for clarification to an existing document which will 

not subject the government to prejudice or undue burden. Under circumstances such as these, 

there can be no dispute that Rule 7 authorizes the Court to order a bill of particulars. 

Case: 1:18-cr-00043-TSB Doc #: 73 Filed: 01/13/20 Page: 17 of 19 PAGEID #: 585
18 

26468554.3 

CONCLUSION 

For the foregoing reasons, Mr. Xu requests this Court grant its Motion for Bill of 

Particulars as to all counts set forth in the Indictment. 

Respectfully submitted, 

/s/ Robert K. McBride

Ralph W. Kohnen (0034418) 

Jeanne M. Cors (0070660) 

Robert K. McBride (pro hac vice)

Taft Stettinius & Hollister LLP 

425 Walnut Street, Suite 1800 

Cincinnati, Ohio 45202-3957 

Telephone: (513) 381-2838 

Fax: (513) 381-0205 

kohnen@taftlaw.com 

cors@taftlaw.com 

rmcbride@taftlaw.com 

Florian Miedel (pro hac vice)

Miedel & Mysliwiec LLP 

80 Broad Street, Suite 1900 

New York, NY 10004 

Telephone: (212) 616-3042 

Fax: (800) 507-8507 

fm@fmamlaw.com 

COUNSEL FOR DEFENDANT 

Case: 1:18-cr-00043-TSB Doc #: 73 Filed: 01/13/20 Page: 18 of 19 PAGEID #: 586
19 

26468554.3 

CERTIFICATE OF SERVICE 

I hereby certify that on January 10, 2020 a copy of the foregoing was filed under seal. 

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

system. 

/s/ Robert K. McBride

Case: 1:18-cr-00043-TSB Doc #: 73 Filed: 01/13/20 Page: 19 of 19 PAGEID #: 587