IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

WESTERN DIVISION

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

:

v. : Judge Timothy S. Black

:

YANJUN XU : UNITED STATES’ TRIAL BRIEF

(a/k/a Xu Yanjun and Qu Hui) :

:

:

During the course of investigation, the government obtained multiple phones and items 

from electronic accounts related to the defendant. This evidence included text messages, chats, 

emails, recordings, calendar notifications, and cloud account data (hereinafter “electronic data”). 

Most of these communications and data required translation from Chinese into English, which was 

processed in batches. From this substantial volume of evidence, the government intends to offer 

selected excerpts and translations into evidence during trial. 

Accordingly, the government submits this trial brief in order to address several evidentiary 

matters that may arise during trial. 

A. The Use of Summaries under Rule 1006 of the Federal Rules of Evidence. 

In some instanced, the quantity of the electronic data is so voluminous such that the totality 

of the electronic evidence cannot be conveniently examined at trial. At other times, the data

relating to a single event is pulled from several separate sources or conversations. To address these 

circumstances, the prosecution intends to use evidence under Rule 1006 (Summary Exhibits) of 

the Federal Rules of Evidence.

Under Rule 1006, the proponent may use a summary, chart, or calculation to prove the 

content of voluminous writings that cannot be conveniently examined in court. Rule 1006 of the 

Case: 1:18-cr-00043-TSB Doc #: 142 Filed: 10/01/21 Page: 1 of 11 PAGEID #: 1816
2

Federal Rules of Evidence states: “The contents of voluminous writings, recordings, or 

photographs which cannot conveniently be examined in court may be presented in the form of a 

chart, summary, or calculation. The originals, or duplicates, shall be made available for 

examination or copying, or both, by other parties at [a] reasonable time and place. The court may 

order that they be produced in court.” Fed. R. Evid. 1006. 

In order to admit a Rule 1006 summary into evidence, there are several requirements. First, 

the documents or items must be so voluminous that they “cannot conveniently be examined in 

court” by the trier of fact. United States v. Bray, 139 F.3d at 1109–10. The documents must be 

sufficiently numerous as to make comprehension “difficult and ... inconvenient.” United States v. 

Seelig, 622 F.2d 207, 214 (6th Cir.1980); see Martin v. Funtime, Inc., 963 F.2d 110, 115 (6th 

Cir.1992). It is not necessary that the documents be so voluminous as to be “literally impossible to 

examine.” United States v. Scales, 594 F.2d 558, 562 (6th Cir.1979). The phones and other 

electronic discovery data collected from Yanjun Xu consists of thousands of lines of text messages, 

hundreds of chats from an app called “WeChat,” and cloud account backups of phones, emails, 

and calendar notifications. The quantity of these messages and information is so voluminous that 

it cannot conveniently be examined in court and therefore summaries and excerpts should be 

admitted. 

Second, the proponent of the summary must also have made the documents “available for 

examination or copying, or both, by other parties at [a] reasonable time and place.” Fed.R.Evid. 

1006; see Bray, 139 F.3d at 1109–10; Scales, 594 F.2d at 562. The purpose is to provide the 

opposing party an opportunity to address the authenticity or accuracy of a chart, summary, or 

calculation. The prosecution has already provided the defense with all discovery items containing 

the underlying messages and content that is included within the summaries therefore already 

Case: 1:18-cr-00043-TSB Doc #: 142 Filed: 10/01/21 Page: 2 of 11 PAGEID #: 1817
3

providing the defense with ample time to examine the messages. As part of the discovery, the 

prosecution provided the defense with a hard drive and other media so the defense would have the 

entirety of the Defendant’s phones and iCloud accounts. 

Third, the proponent of the summary must establish that the underlying documents are 

admissible in evidence.” Martin, 963 F.2d at 116 (emphasis omitted) (quoting United States v. 

Johnson, 594 F.2d 1253, 1256 (9th Cir.1979)). Thus, if the underlying documents are hearsay and 

not admissible under any exception, a chart or other summary based on those documents is likewise 

inadmissible. But given Rule 1006's provision that the underlying documents need not themselves 

be in evidence, however, a summary admitted under Rule 1006 is itself the evidence that the trier 

of fact should consider. Bray, 139 F.3d at 1109–10. Nearly all communications directly involve 

Yanjun Xu. The defendant’s own statements are admissible. As previously briefed, the other half 

of the conversation with the defendant are likewise admissible to provide context and meaning for 

the defendant’s admissions. Therefore, these summaries should be considered admissible as 

evidence since they are not hearsay or fall into hearsay exceptions.

Fourth, the summary document “must be accurate and nonprejudicial.” Bray, 139 F.3d at

1109–10, citing Gomez v. Great Lakes Steel Div., Nat'l Steel Corp., 803 F.2d 250, 257 (6th 

Cir.1986). The content contained in these summaries containing Yanjun Xu communications 

consist of select text messages, chats and emails from the discovery data to tell the story of the 

alleged crime(s) be prosecuted during trial. These messages are accurate and not prejudicial. 

Therefore, the summaries should be admitted.

Fifth and finally, a summary document must be “‘properly introduced before it may be 

admitted into evidence.’” Bray, 139 F.3d at 1109–10; Martin, 963 F.2d at 115-16 (quoting Scales,

594 F.2d at 563). In order to lay a proper foundation for a summary, the proponent should present 

Case: 1:18-cr-00043-TSB Doc #: 142 Filed: 10/01/21 Page: 3 of 11 PAGEID #: 1818
4

the testimony of the witness who supervised its preparation. See Scales, 594 F.2d at 562-63; United 

States v. Harris, 881 F.3d 945, 951 (6th Cir. 2018) (admitting summary of bank and market records 

under Rule 1006). A witness is not required have personally created the underlying records or have 

personally prepared the summary exhibit. It is sufficient if the witness testifies that he or she 

supervised others who reviewed the raw data and prepared the summary, and that the witness then 

reviewed the summary. Fahnbulleh, id. The expertise involved in creating the chart does not make 

the witness an expert witness; the opinions in the chart are Rule 701, not expert, opinions. See

United States v. Georgiou, 2015 WL 241438 (3d Cir. Jan. 20, 2015). 

It is important to distinguish between exhibits under Rule 611(a) or Rule 1006. Rule 611(a)

of the Federal Rules of Evidence states: “the court should exercise reasonable control over the 

mode and order of examining witnesses and presenting evidence so as to: (1) make those 

procedures effective for determining the truth; (2) avoid wasting time; and (3) protect witnesses 

from harassment or undue embarrassment.” Charts under Rule 611(a) are pedagogical or teaching 

aids which are not admitted into evidence. See United States v. Milkiewicz, 470 F.3d 390, 397 n.14 

(1st Cir. 2006). In contrast, summaries under Rule 1006 for voluminous evidence are admitted into 

evidence. 

The seminal case in the Sixth Circuit on this topic is United States v. Bray, 139 F.3d 1104, 

1112 (6th Cir. 1998). In Bray, the court discussed the differences between document summaries 

received in evidence as substantive exhibits under Fed.R.Evid. 1006, and those not received in 

evidence but used as pedagogical devices under Fed.R.Evid. 611(a). 

However, the Bray court also adopted a third, “hybrid” type of evidence under these rules

that is not entirely in compliance with Rule 1006 but is more than mere pedagogical devices 

designed to simplify and clarify other evidence in the case. As stated in Bray, these “secondaryCase: 1:18-cr-00043-TSB Doc #: 142 Filed: 10/01/21 Page: 4 of 11 PAGEID #: 1819
5

evidence summaries are admitted in evidence not in lieu of the evidence they summarize but in 

addition thereto, because in the judgment of the trial court such summaries so accurately and 

reliably summarize complex or difficult evidence that is received in the case as to materially assist 

the jurors in better understanding the evidence. In the unusual instance in which this third form of 

secondary evidence summary is admitted, the jury should be instructed that the summary is not 

independent evidence of its subject matter and is only as valid and reliable as the underlying 

evidence it summarizes.” Id. 

As a helpful example, in United States v. Williams, 952 F.2d 1504 (6th Cir. 1991), the 

district court did not abuse its discretion by admitting three charts containing compilations of 

information from telephone records, surveillances and tape recordings, which amounted to a 

chronology of significant events on particular days. See also, United States v. Moon, 513 F.3d 527 

(6th Cir. 2008) (admission of summary chart of drugs purchased, amounts defendant claimed to 

have administered, and estimated profits upheld.) Likewise, the government will present Rule 

1006 summaries that compile certain communications and data related to particular individuals, 

events, or time periods. 

B. The Admission of Recordings and Transcripts. 

The government also intends to introduce three recordings of the Defendant Xu, all of 

which were spoken in Mandarin, along with English transcripts of these recordings. The three 

recordings are:

1. A recording of a phone call between Xu and Employee 1, recorded by the FBI. 

2. A recording of a conversation between Xu and a tutor. This recording was contained on 

Xu’s iCloud account, which backed up his phones. 

Case: 1:18-cr-00043-TSB Doc #: 142 Filed: 10/01/21 Page: 5 of 11 PAGEID #: 1820
6

3. A recording of a presentation given by a U.S. engineer to Xu and several engineers in China 

in October 2017. The recording captures: (1) the presentation with the U.S. engineer; (2) 

Xu’s conversations with the other Chinese individuals after the engineer left; and (3) 

several calls made by Xu after the meeting. Again, this recording was contained on Xu’s 

iCloud account, which backed up his phones. 

The admission at trial of a sound recording rests in the “sound discretion” of the trial court. 

United States v. Robinson, 707 F.2d 872, 876 (6th Cir. 1983). “[A]s a prerequisite to admission, 

the tapes must be authentic, accurate and trustworthy . . . .” Id. (citations omitted). To authenticate 

audio recordings, the government must prove that, “as a matter of reasonable probability, 

possibilities of misidentification and adulteration have been eliminated.” United States v. Celis, 

608 F.3d 818, 842 (D.C. Cir. 2010) (quoting United States v. White, 116 F.3d 903, 920-21); see 

also Fed. R. Evid. 901(a) (“The requirement of authentication ... is satisfied by evidence sufficient 

to support a finding that the matter in question is what its proponent claims.”). Moreover, the 

recording “must be audible and sufficiently comprehensible for the jury to consider the contents.”

Robinson, 707 F.2d at 876. (citations omitted). 

As with recordings, the use of transcriptions of a recorded communication is also within 

the court's discretion. United States v. Wilkinson, 53 F.3d 757, 761 (6th Cir. 1995) (citation 

omitted). The concern is that while the transcript is not “evidence,” it will be treated as such 

where a recording is inaudible or incomprehensible. Id. at 762 (citation omitted). Where a party 

seeks to introduce a transcript at trial, it is preferred that the parties stipulate to its accuracy. Id. 

Where, however, the accuracy is questioned, the court should make a pretrial determination as to 

the use of the transcript. Id. 

Case: 1:18-cr-00043-TSB Doc #: 142 Filed: 10/01/21 Page: 6 of 11 PAGEID #: 1821
7

Translated Transcripts. When an audio recording involves conversations in a language 

that is foreign to the jury, transcripts are a “virtual necessity.” United States v. Mediola, 707 F.3d 

735, 742 (7th Cir. 2013) (quoting United States v. Cruz-Rea, 626 F.3d 929, 936 (7th Cir. 2010)). 

“It is simply common sense that an English-speaking jury cannot adequately identify voices in 

languages in which they are not familiar or even fluent.” Mendiola, 707 F.3d at 742. Parties who 

object to the use of translated transcripts as exhibits have an obligation to point to specific 

inaccuracies—whether in the translation or transcription—or present alternative transcripts. See 

United States v. Garcia, 20 F.3d 670, 673 (6th Cir. 1994); United States v. Liddel, 64 F. App'x 

958, 963 (6th Cir.2003) (“[T]here can be no abuse of discretion . . . when the Defendants 

involved did not point to any specific inaccuracies in the translation or offer any alternative 

translation.”).

In cases involving translated transcripts, the Sixth Circuit requires measures to verify the 

reliability of the transcript. The proponent must present a witness qualified in the relevant foreign 

language who has listened to the recordings to verify the accuracy of the translated transcript. 

Garcia, 20 F.3d at 673; see also Liddel, 64 F. App'x. at 963.There is no requirement that the 

transcriber himself testify, another witness proficient in the language can testify to the accuracy 

of the transcripts. United States v. Roberts, 316 F. App'x 388, 392 (6th Cir. 2008) (citing United 

States v. King, 272 F.3d 366, 374 (6th Cir.2001)). Here the government has provided the original

recordings and English transcripts to the defense for review. The parties have resolved any 

disputes related to the accuracy of the translations, or are waiting on final resolution of certain 

translations by the Court. Because the jury cannot listen to and comprehend the foreign language 

recordings, the government intends to submit these English transcripts of the recordings into 

evidence. 

Case: 1:18-cr-00043-TSB Doc #: 142 Filed: 10/01/21 Page: 7 of 11 PAGEID #: 1822
8

Voice Identification. With respect to identifying a defendant as the speaker in a 

transcript, the availability of witnesses for cross-examination at trial who can identify the 

defendant as the speaker “negates any prejudice” to the defendant. United States v. Ford, 187 F. 

App’x. 496, 501 (6th Cir. 2006) (citing United States v. Crane, 632 F.2d 663, 664-665 (6th Cir.

1980)). The question then becomes what is required of a witness who will testify to the identity 

of a speaker on an audio recording.

Federal Rule of Evidence 901(b)(5) permits a witness to provide an opinion identifying a 

person’s voice “--whether heard firsthand or through mechanical or electronic transmission or 

recording—based on hearing the voice at any time under circumstances that connect it with the 

alleged speaker.” Fed. R. Evid. 901(b)(5). The identifying witness may have heard the voice 

“firsthand or through mechanical or electronic transmission or recording.” Id. The standard for 

admitting an opinion as to the identity of a speaker “is merely that the identifier has heard the 

voice of the alleged speaker at any time.” United States v. Pryor, 842 F.3d 441, 451 (6th Cir. 

2016) (quoting United States v. Cooke, 795 F.2d 527, 530 (6th Cir. 1986)). There is no 

requirement that an exemplar be based on a face-to-face conversation. Pryor, 842 F.3d at 452 

(citing United States v. Mendiola, 707 F.3d 735, 741 (7th Cir. 2013). “[T]he circumstances that 

might connect a voice to a given speaker can assume a virtually unlimited number of forms and 

there is no requirement that the circumstances employed in a given case take any specific form.” 

31 Fed. Prac. & Proc. Evid. § 7110 (1st ed.). The identifying witness does not need to be 

qualified as an expert. Pryor, 842 F.3d at 452 (citing United States v. Recendiz, 557 F.3d 511, 

527 (7th Cir. 2009)). Voice identification need only meet a "low bar of minimal familiarity." 

United States v. Cruz-Rea, 626 F.3d 929, 935 (7th Cir. 2010) (authenticating officer listened to a 

fifteen second exemplar).

Case: 1:18-cr-00043-TSB Doc #: 142 Filed: 10/01/21 Page: 8 of 11 PAGEID #: 1823
9

In United States v. Cooper, 868 F.2d 1505 (6th Cir. 1989), an FBI Special Agent 

identified a defendant as the speaker on four wiretapped recordings admitted into evidence at 

trial. Cooper, 868 F.2d at 1519. The agent based this identification on listening to the wiretaps 

and comparing them with brief discussions he had with the defendant, which only lasted 

approximately thirty-seconds. Id. Despite the agent’s use of a mere thirty-second exemplar, the 

Sixth Circuit found that the district court had not abused its discretion by admitting the 

identification testimony. Id.; see also Cruz-Rea, 626 F.3d at 935 (7th Cir. 2010) (low bar of 

“minimal familiarity” met by officer using a fifteen-second exemplar to identify defendant on 

twenty-four wiretapped conversations).

Here, an FBI linguist reviewed countless phone conversations Xu stored on his iCloud 

account. The linguist also heard defendant Xu speak on several jail recordings, on the phone, and 

during his transportation to the United States. From this familiarity, the linguist was able to 

identify Xu’s voice on the recordings at issue. 

As noted, the standard is merely that the person making the identification has heard the 

person’s voice at any time. Pryor, 842 F.3d at 452; Fed. R. Evid. 901(b)(5). Moreover, questions 

regarding voice identification go to the weight of the evidence, not its admissibility. United 

States v. Walker, 320 F.2d 472, 475-76 (6th Cir. 1963). Therefore, because the witness can 

properly identify Xu’s voice and will be available for cross-examination, the government may

introduce the recordings as admissions and identify Xu’s name as a speaker in the translated 

transcripts of his recorded conversations.

C. The Admissibility of Business Records Under Rule 902(11). 

The records provided by internet service providers – namely Google, Apple, and Yahoo –

will be introduced as business records, admissible under the business records exception to the 

Case: 1:18-cr-00043-TSB Doc #: 142 Filed: 10/01/21 Page: 9 of 11 PAGEID #: 1824
10

hearsay rule. Federal Rule of Evidence 803(6). The elements of Rule 803(6) can be shown 

through a certificate from the business custodian pursuant to Rule of Evidence 902(11). Rule 

902(11) states: “The original or a copy of a domestic record that meets the requirements of 

Rule 803(6)(A)-(C), as shown by a certification of the custodian or another qualified person 

that complies with a federal statute or a rule prescribed by the Supreme Court. Before the 

trial or hearing, the proponent must give an adverse party reasonable written notice of the 

intent to offer the record--and must make the record and certification available for 

inspection--so that the party has a fair opportunity to challenge them.” Fed. R. Evid. 902(11). 

These certificates have been produced to the defense in the discovery. By this filing, the 

government gives notice that it intends to use such business record certificates to support the 

admissibility of the business records. 

D. Admissibility of Records Produced Under a Mutual Legal Assistance Treaty.

The government has also produced in discovery several productions of records that were 

procured pursuant to a Mutual Legal Assistance Treaty (MLAT) with a foreign government.

Records produced pursuant to an MLAT are deemed to be admissible without further 

authentication. See e.g., United States v. Odeh, 815 F.3d 968, 981 (6th Cir. 2016). The process 

for admitting such foreign records is set forth in 18 U.S.C. Section 3505 and Rule 902(12). 

Pursuant to Section 3505, “a foreign record of regularly conducted activity, or a copy of such 

record” is admissible with a similar foreign certification that attests to the business records 

requirements. The government has produced these records in discovery and intends to offer 

the records into evidence pursuant to Section 3505 and Rule 903(12). 

Case: 1:18-cr-00043-TSB Doc #: 142 Filed: 10/01/21 Page: 10 of 11 PAGEID #: 1825
11

Respectfully submitted,

VIPAL J. PATEL

Acting United States Attorney

s/Timothy S. Mangan

EMILY GLATFELTER 

TIMOTHY S. MANGAN (0069287)

Assistant United States Attorneys

221 East Fourth Street, Suite 400

Cincinnati, Ohio 45202

Office: (513) 684-3711

Fax: (513) 684-6385

E-mail: timothy.mangan@usdoj.gov

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing has been electronically served via the Court’s 

CM/ECF system upon defense counsel, this 1st day of October, 2021.

s/Timothy S. Mangan

TIMOTHY S. MANGAN (0069287)

Assistant United States Attorney

Case: 1:18-cr-00043-TSB Doc #: 142 Filed: 10/01/21 Page: 11 of 11 PAGEID #: 1826