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Proceedings recorded in stenotype.

Transcript produced with computer-aided transcription.

1

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

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UNITED STATES OF AMERICA,

Plaintiff,

vs.

YANJUN XU, also known as XU

YANJUN, also known as QU HUI,

also known as ZHANG HUI,

Defendant.

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CASE NO. 1:18-cr-0043

STATUS VIDEOCONFERENCE

30th of September, 2021

12:00 P.M.

- - -

TRANSCRIPT OF PROCEEDINGS

BEFORE THE HONORABLE TIMOTHY S. BLACK, JUDGE

- - -

APPEARANCES:

For the Plaintiff:

Timothy S. Mangan, Esq.

Emily N. Glatfelter, Esq.

Assistant United States Attorneys

221 East Fourth Street, Suite 400

Cincinnati, Ohio 45202

For the Defendant:

Ralph William Kohnen, Esq.

Jeanne Marie Cors, Esq.

Taft Stettinius and Hollister

425 East Walnut Street, Suite 1800

Cincinnati, Ohio 45202

and

Florian Miedel, Esq.

Miedel & Mysliwiec, LLP

80 Broad Street, Suite 1900

New York, New York 10004

Also present: May Harding, Interpreter

Yanjun Xu, Defendant

Law Clerk: Cristina V. Frankian, Esq.

Courtroom Deputy: Rebecca Santoro

Stenographer: Lisa Conley Yungblut, RDR, RMR, CRR, CRC

United States District Court

100 East Fifth Street

Cincinnati, Ohio 45202

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(Proceedings held by videoconference at 12:00 p.m.)

THE COURT: Good afternoon. This is United States

District Court Judge Timothy Black on the record appearing

by videoconference as if in the open courtroom. We're here

on the criminal docket in the case of United States versus

Xu, 1:18-cr-43. We're here for a status conference

specifically relating to upcoming jury selection.

I'd like to begin by identifying the participants

in this conference. Who appear as the attorneys for the

United States of America?

MR. MANGAN: Good afternoon, Your Honor. Tim

Mangan and Emily Glatfelter for the government.

THE COURT: Good afternoon to the two of you. I

can see you on the videoconference and I heard you, Mr.

Mangan.

Who appear as the attorneys for Mr. Xu?

Mr. Kohnen, are you threatening -- there you go.

MR. KOHNEN: Sorry about that. I'm here on behalf

of Mr. Xu, so is my colleague, Florian Miedel, who's also on

the screen. Jeanne Cors is there with Mr. Xu. And present

also is May Harding, our interpreter.

THE COURT: Good afternoon to all of you. And I

can see Mr. Miedel. I see you, Mr. Kohnen. I see Ms. Cors

in the presence of Mr. Xu.

And, Mr. Xu, good afternoon. I'm Judge Black. Can

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you hear me?

THE DEFENDANT: Yes.

THE COURT: Very well. Good afternoon.

And we have an interpreter present. Ma'am, if

you'd be willing to take an oath to accurately translate the

language. Your right hand is up, mine is as well.

Do you solemnly swear or affirm that you will

accurately translate these proceedings under the penalties

of perjury?

THE INTERPRETER: Yes, I will.

THE COURT: Thank you. You may lower your right

hand. And on behalf of the Court and the community, thank

you for the work you are doing.

Also engaged in this conference is Cristina

Frankian, who's my career law clerk, she's a lawyer, works

for me; also Rebecca Santoro, who's the courtroom deputy and

my assistant. The US Marshal, John, is linked to the

conference as well. The court reporter is Lisa Conley

Yungblut, whom the Court is grateful for her presence and

continuing work.

Let me make a short statement and then we'll hear

from each side in turn. We're scheduled to go to jury trial

beginning October 18th running potentially up until

December 1st with time off for Thanksgiving. Due to the

length of the anticipated trial as well as the issues

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presented in this case, which pose a particular risk of

bias, particularly under the current circumstances, the

Court anticipates having a difficult time finding jurors who

are ready, willing, and able to serve. To ensure a larger

pool, the Court called 350 prospective jurors, and of those,

175 prospective jurors responded.

Let me pause and ask the interpreter whether you

are able to keep up with me and whether Mr. Xu can tell me

that he understands what I'm saying?

THE DEFENDANT: Yes.

THE COURT: Very well. And the interpreter, ma'am,

you're able to keep up with me; is that right?

THE INTERPRETER: Yes.

THE COURT: Thank you for your work.

All right. So we called for 350 prospective

jurors. We've gotten 175 that have responded.

Additionally, there are currently three jury trials,

including our own, scheduled to begin in Cincinnati on

October 18, 2021. Therefore, those 175 jurors need to be

divided between the three trials. Typically, the jury

coordinator would wait until the morning of voir dire, first

day of trial, and after every prospective juror arrives

would simply assign the jurors to a trial evenly. For

instance, the first 50 would go to our trial, the next 50

would go to Judge Dlott's trial, the next 50 would go to

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Judge McFarland's trial.

But, again, our trial has a higher likelihood of

needing to excuse jurors for hardships or cause, based

largely upon length and the subject matter. Therefore, if

we do not work to identify viable jurors for our trial in

advance, we could ultimately be assigned 50 prospective

jurors most of whom will get excused due to hardships,

availability, bias, thereby, leaving us with too few jurors

to proceed. We would then have to call a new pool and start

jury selection over; whereas, there may have been jurors

present that day who could have served on our jury if they

had only been in our group.

In an effort to pre-identify viable jurors, the

Court sent out a supplemental questionnaire which both sides

reviewed and approved. Now the Court must create a

procedure that will hopefully alleviate the concerns I've

just raised. Excuse me. And our proposal is for the Court,

the judge, to review the questionnaires first and to, quote,

pre-exclude, end quote, the jurors who would have inevitably

been excused had they appeared in our courtroom for voir

dire the morning of trial. Those jurors that we would

pre-excuse would then go to one of the other two trials,

thereby, leaving us with a pool of jurors who we know are

ready, willing, and able to serve the entirety of the trial

free of bias or prejudice.

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But before we proceed in that way, I want to be

certain that both sides are comfortable with the proposal.

If both parties unanimously agree that the Court can

pre-exclude those individuals with hardships, then, we'll

proceed accordingly.

What I want to avoid is a situation where all agree

to this process and then down the road to have either

side -- excuse me -- argue that the Court pre-excluded a

prospective juror that they would have wanted had they only

known about him or her. I don't think it's fair to allow

the parties to hand-pick their jury pool in advance, which

is why my proposal is to allow me to exercise my discretion

as reflected in law in a fair and neutral manner just as I

would have done if the jurors had appeared in person for

voir dire.

What we're trying to avoid is getting assigned 50

prospective jurors of -- a large number of which we already

know are unavailable or ought to be excused perhaps, for

example, in bias. The individuals who would be unavailable

for our weeks-long trial could well be available for the

other two trials, and they should be diverted there before

the morning of voir dire.

The proposed categories of exclusion that I would

exercise with your consent is, No. 1, unavailability. If

they have got a prescheduled vacation, a doctor's procedure,

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whatever, if they are indicating they're not available for

the entirety of our trial, we have to excuse them now and

not have unavailable people in our pool. Unavailability is

related to work and financial hardship. It's related to

medical concerns.

And then the absolute proposed category of

exclusion would include non-mask-wearers who indicate

they're unwilling to wear a mask given the pandemic, which

would be in violation of the Court rules and would be a

basis to exclude them.

I'd like to talk subsequently about how we deal

with bias. If we have an indication that a juror says they

can't trust anybody from -- who doesn't share their

Judeo-Christian values or who comes from China, I think we

ought to address that beforehand, but you may want to

address it during voir dire. What we're trying to do is

build a pool that gets assigned to us which is people who

can serve unless excused by the parties pursuant to

preemptory challenges or for cause.

So having said all of that, I want to go around the

table and understand what your reaction is, if you have

questions or comments, and I'll do it one side at a time.

And my career law clerk, Ms. Frankian, may well be called

upon to respond to any of your comments along with me.

So with that, which of the attorneys for the United

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States can be responsive to what the Court is presenting

now?

MR. MANGAN: Your Honor, this is Tim Mangan. I'll

speak on behalf of the government.

THE COURT: Very well.

MR. MANGAN: Your Honor, we certainly understand

the difficulty that we've got here based on all of the

factors that you've just laid out and the situation

upcoming. With respect to what the Court has laid out, we

would be agreeable. We have no problem with the

unavailability issue that the Court walked through, that the

Court would then look at the questionnaires, as I understand

it, and sort of in the normal course look at those who

simply cannot serve for that long a time for all of the

various reasons that you identified. And we understand the

reason why you want to try to do that without us being the

parties preselecting the jury pool.

The second category that you mentioned were those

who would be refusing to wear masks in accordance with Judge

Marbley's order. Given that what they're indicating would

violate the Southern District of Ohio order, we certainly

understand why and think the Court would have discretion to

handle those jurors separately.

Our proposal would be at that point to kind of see

where we are as far as the numbers, because when it gets to

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sort of that next step of cause and talking about

individuals with bias, I know traditionally in normal

selection, that's one where at least the parties would be

able to see the questionnaires at that time and sometimes

ask questions. I realize that some questions -- some

answers on the questionnaire may seem very, very clear, but

we've all seen with some jury selections where there's a

back-and-forth about certain individuals.

So I guess our proposal, Your Honor, in response to

what you laid out is we would be agreeable to the process

certainly as to those first two categories, the

unavailability and the refusal to follow the mask order for

the district. We would suggest at that point seeing where

we are as far as numbers for the pool, and if there's still

a problem and you think we need to go to that next step, you

know, in terms of screening bias or -- can we wait and do

that during the normal voir dire?

Or is there a way to -- another option would be at

that point maybe the parties could see the questionnaires

that are at issue and we could at least discuss those

potential bias issues, you know, in an adversarial -- or,

you know, in the normal court hearing like this, but with us

having the benefit of at least knowing what we're talking

about from the questionnaire. So that's our initial

feedback, Your Honor.

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THE COURT: And that's entirely responsive and

professional, and the Court expresses its appreciation for

that approach.

Ms. Glatfelter, has Mr. Mangan spoken

comprehensively or would you like to supplement?

MS. GLATFELTER: No, I agree with everything said.

Thank you.

THE COURT: Very well. Who'll be heard on behalf

of the defendant?

MR. KOHNEN: Your Honor, this is Ralph Kohnen.

I'll be happy to speak on behalf of Mr. Xu. But I would

also ask the Court since my colleague, Jeanne Cors, is there

in the jail with him and the translator, that she be given

an opportunity, No. 1, to make sure that he understands

what's been said so far; and, secondly, that after I speak

what will of course be my opinion, he concurs and it then

becomes our opinion, with the Court's permission.

THE COURT: That's absolutely appropriate and

granted. Let me at this stage ask Ms. Cors and Mr. Xu and

the translator whether you've heard everything I said and

you've also heard everything the government has said?

THE DEFENDANT: Yes.

THE INTERPRETER: Yes.

THE COURT: That right, Ms. Cors?

MS. CORS: Yes, Your Honor.

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THE COURT: Very well. So, Mr. Kohnen, I would

propose that you give us the Defendant Xu's reaction at this

stage, and we'll confirm it with Ms. Cors and your client.

MR. KOHNEN: Okay. Thank you, Judge. For

background, Ms. Frankian gave us a heads-up on this, as I'm

sure she did with other counsel, so we've had an opportunity

to discuss it among the attorneys. And I think that the

Court's suggestion along with, I guess I'll call it, Mr.

Mangan's next step is a good one. It's one that we came up

with as well. You know, I think it's worth everybody

reminding themselves that this is a process that is pretty

much undertaken by the Courts before trials independent of

counsel's involvement, especially with things such as

unavailability and what I guess would be fairly unique

circumstances.

Because of that and for a lot of other reasons, we

have no problem with the Court making that -- let's call it

the first cut of Category 1, the unavailability,

non-mask-wearers, and would probably expand a little bit and

say that there are probably other more obvious reasons that

we absolutely trust the Court to excuse potential jurors

for.

Jeanne, you want to make sure Xu's okay with that

so far?

MS. CORS: Yes. I've spoken with Mr. Xu and he is

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amenable to that as well.

THE COURT: Is that right, Mr. Xu?

THE DEFENDANT: Yes.

THE COURT: Thank you.

MR. KOHNEN: Judge, we also, as I mentioned, like

the idea about how that the folks that could be revealed as

biased could at least be screened, I guess is a good way to

put it. In addition to the questionnaires, I think we would

ask that the Court take it upon itself to share with us any

other information that might come in about these individual

prospective jurors. Again, speaking from experience, that

they call the clerk's office sometimes, they get through to

chambers on occasion, any communication like that in

addition to the juror questionnaires would be appreciated.

I think the Court is envisioning, and I think I heard Mr.

Mangan say, that we would sort of reconstitute once that

second -- I'll call it the second cut is done and discuss

where we go from here.

For the record and also as a product of our

conversation among the attorneys, we, of course, recognize

that no matter how we do it, it's ultimately up to the man

in the black robe. So we appreciate the accommodations

here.

THE COURT: Thank you. That's entirely responsive.

I think what I heard was that the parties are willing to

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acquiesce to what the Court has the authority and discretion

to do, and that is to excuse people for unavailability and

for unwillingness to abide by a court order to wear a mask.

After we've done that, we would then regroup, find out where

we are in terms of numbers, and then collectively begin to

determine how to proceed to evaluate bias, either pre voir

dire or at voir dire. Is that what you were saying,

Mr. Kohnen?

MR. KOHNEN: Yes, Your Honor.

THE COURT: And is that the government's

perspective, Mr. Mangan?

MR. MANGAN: Yes, Your Honor.

THE COURT: Ms. Cors, is there anything from your

end that we need to touch base with yet? We're not done,

but I saw you standing.

MS. CORS: No, Your Honor. I'm just making sure we

mute and unmute so you can't hear the interpreter.

THE COURT: After that experience, will you work

with Mr. Kohnen, please? Very well.

Ms. Frankian, I'm on the record. You have been

extraordinary in driving this attempt to be efficient,

totally transparent, fair and impartial. Is there anything

that the government has said you want to respond to or

clarify? Is there anything the defense has said that you

would like to inquire of, respond to, or clarify?

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MS. FRANKIAN: No, Judge. So we would pre-excuse

the unavailable prospective jurors and those with financial

hardships, physical concerns, non-mask-wearers. And then

should -- should I separate out those individuals who

have -- who the Court is inclined to excuse for bias so that

everyone can weigh in on those individuals separately or

should I just send everyone remaining?

THE COURT: My understanding is you were going to

identify the potential biased prospective jurors, and we

would talk through those questionnaires and those alone with

the lawyers, and then we would confer as to whether there's

a consensus that allegedly biased Juror Nos. 7 and 12 should

be pre-excused.

Is that your understanding of the approach we are

developing, Mr. Mangan?

MR. MANGAN: Yes, that would be fine with us, Your

Honor.

THE COURT: And is that acceptable to the defense,

Mr. Kohnen?

MR. KOHNEN: Yes, it is, Your Honor. Of course, we

would be grateful to get the questionnaires of the venire

panel as soon as possible, but we're fine with the way it

was stated.

THE COURT: Fair enough.

Is that responsive to your inquiry, Ms. Frankian,

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or do you have additional follow-up?

MS. FRANKIAN: I think that's responsive.

THE COURT: Very well, I agree. And all of the

lawyers, even the judge, appreciate the enormous work

Ms. Frankian does for the Court day after day after day. So

that is the way in which we will proceed.

I need to ask directly on the record if the Court

proceeds in the way that we just amicably came to an agreed

approach, no complaint, no appeal of that portion of the

voir dire selection process; is that right from the

government's perspective, Mr. Mangan?

MR. MANGAN: It is, Your Honor, yes.

THE COURT: Is that right, Mr. Kohnen, from the

defendant's perspective?

You're muted. You're muted. Mr. Kohnen, you're

muted.

MR. KOHNEN: Sorry, Judge. My software does it

automatically.

I'll promise you that none of the lawyers who are

involved in this case before the trial court will appeal.

THE COURT: On this issue.

MR. KOHNEN: Of course, on this issue. And I would

like Ms. Cors to make sure that our client understands that.

THE COURT: Very well. Ms. Cors, can you confer

with Mr. Xu -- you don't have to speak in my presence -- and

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then advise me?

MS. CORS: Yes, Your Honor.

THE COURT: So have you asked Mr. Xu, if we proceed

in this way, he understands there's no complaining about it

or appealing about it later?

THE DEFENDANT: Yes.

MS. CORS: Yes, we have conferred with him, and he

is amenable to that.

THE COURT: I also heard him say "yes."

So I think we have accomplished in large part what

we had intended today. It's always nice to see you, Mr.

Miedel.

MR. MIEDEL: Thank you. You too.

THE COURT: Very well. Is there more we need to

discuss today from the government's perspective? We'll be

chatting regularly going forward.

MR. MANGAN: No, Your Honor. Thank you very much.

THE COURT: Anything further from the defendant's

perspective, Mr. Kohnen?

MR. KOHNEN: No, Your Honor. I hope you can hear

me. Thank you to the Court and to Ms. Frankian.

THE COURT: Thank you, Mr. Kohnen. That's a credit

to you.

Anything further from your end, Ms. Cors, from Mr.

Xu's perspective today at this time?

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MS. CORS: No, Your Honor, other than to thank the 

Court for organizing the conference here. Chambers was very 

helpful in facilitating the logistics. 

THE COURT: Very well. Glad to hear that. It 

doesn't surprise me. 

Ms. Frankian, is there more we should proceed today 

or are we prepared to adjourn this? 

MS. FRANKIAN: Nothing further, Judge. 

THE COURT: Very well. I want to thank you all for 

participating timely. I want you to know that I want you to 

stay safe and do well. Thank you for calling in timely. 

I'm going to end the hearing now by saying goodbye and 

leaving the meeting. Thank you all. 

(Proceedings concluded at 12:26 p.m.) 

C E R T I F I C A T E

I certify that the foregoing is a correct transcript of 

the record of proceedings in the above-entitled matter 

prepared from my stenotype notes.

/s/ _______ 10/12/2021

LISA CONLEY YUNGBLUT, RDR, RMR, CRR, CRC DATE

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