UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF OHIO 

WESTERN DIVISION 

- - - 

. . . . . . . . . . . . . . . . 

UNITED STATES OF AMERICA, . Case No. 1:18-cr-043 

. 

 Plaintiff, . Motions Hearing/In-Person

. Status Conference

 - v - . 

. Wednesday, January 22, 2020 

YANJUN XU, . 10:05 AM 

. 

 Defendant. . Cincinnati, Ohio 

. . . . . . . . . . . . . . . . 

REDACTED TRANSCRIPT OF PROCEEDINGS 

BEFORE THE HONORABLE TIMOTHY S. BLACK, JUDGE 

APPEARANCES: 

For the Plaintiff: TIMOTHY S. MANGAN, ESQ. 

EMILY N. GLATFELTER, ESQ. 

Assistant U.S. Attorneys 

United States Attorney's Office 

221 East Fourth Street, Suite 400 

Cincinnati, Ohio 45202 

For the Defendant: RALPH W. KOHNEN, ESQ. 

JEANNE M. CORS, ESQ. 

PHILIP D. WILLIAMSON, ESQ. 

Taft, Stettinius & Hollister LLP 

425 Walnut Street, Suite 1800 

Cincinnati, Ohio 45202-3957 

Law Clerk: Cristina V. Frankian, Esq. 

Court Reporter: Luke T. Lavin, RDR, CRR 

Potter Stewart U.S. Courthouse 

100 East Fifth Street, Room 103 

Cincinnati, Ohio 45202 

Telephone: (513) 564-7500 

- - - 

Proceedings recorded by stenotype; transcript

prepared by computer-aided transcription.

Case: 1:18-cr-00043-TSB Doc #: 83 Filed: 01/27/20 Page: 1 of 56 PAGEID #: 786
 2

 P R O C E E D I N G S 

(In chambers at 10:05 AM.)

THE COURT: Okay. Let's go on the record.

We're here in chambers on the criminal docket in the case

of United States of America versus Xu. We are here for oral

argument on four pending motions and for status conference.

For purposes of the record, I ask that you enter your

appearances. Who appears as counsel for the United States of

America?

MR. MANGAN: Tim Mangan and Emily Glatfelter.

THE COURT: Good morning to the two of you.

And on behalf of defendant Xu?

MR. KOHNEN: Your Honor, good morning. Ralph Kohnen.

MR. WILLIAMSON: Philip Williamson.

MS. CORS: Jeanne Cors. Good morning, Your Honor.

THE COURT: Good morning to the three of you.

My law clerk, Cristina Frankian, is present as well.

The fact that we are here in chambers does not obviate the

fact that we're here in part for oral argument on the pending

motions. I find this more informal setting of chambers more

conducive to discussion and understanding than formal argument

in the courtroom. But defense has asked for oral argument; the

Court is providing it today.

I believe my law clerk e-mailed you and indicated that I

don't need oral argument consisting of recitation of what is in

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case: 1:18-cr-00043-TSB Doc #: 83 Filed: 01/27/20 Page: 2 of 56 PAGEID #: 787
 3

the briefs. The motion to dismiss and the motion for a bill of

particulars, in particular, present questions of law. We've

worked hard on it, we're ready, but I'll give you an

opportunity to say anything you wish if you wish.

The motion for disclosure of Brady and Giglio materials, I

need to understand more clearly what the difficulties are. I

find that the hyperbole in defendant's pleadings makes it

difficult for me to truly understand what the difficulties are,

and I'm hoping that oral argument, slash, status conference

will enable us to identify truly what presents and try and

effect practicable and reasonable remedies.

Of the four motions pending, one is a motion for pretrial

disclosure of 404(b) evidence. Pursuant to the parties'

jointly-proposed calendar, that evidence is due on February 24,

2020. I believe, therefore, that motion is moot.

The government has produced 9,000 pages of hot documents

that they intend to use to prove their case. A review of those

documents reflects precisely what the government is going to go

forward on. They produced those documents in indexed,

foldered, translated searchable documents. The additional

productions are largely from the defendant's own devices and

records.

(The Court and law clerk confer privately.)

THE COURT: So that's sort of my opening statement.

The defendant is the movant, so can we have argument, a

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case: 1:18-cr-00043-TSB Doc #: 83 Filed: 01/27/20 Page: 3 of 56 PAGEID #: 788
 4

dialogue, and if need be, can I stop you and try and pinpoint

exactly what's going on and ask the government to weigh in.

Mr. Kohnen, will you be heard?

MR. KOHNEN: Gladly, Your Honor.

First of all, with respect to the noted hyperbole in the

Brady, Jencks, Giglio motion, I hope the Court will --

THE COURT: All motions.

MR. KOHNEN: Okay.

-- I hope the Court will consider that at least as an

indication of how seriously we take these matters.

THE COURT: I'm just telling you, in the spirit of

full disclosure, it's not helpful to the Court. You guys are

sophisticated lawyers that know what presents and what the

specific issues are, and I'm glad we're having this

opportunity.

MR. KOHNEN: Would you like to deal with any of the

motions in any particular order?

THE COURT: Yeah. The first two that I think you

fully briefed, they're questions of law. If there's something

you want to supplement on the motion to dismiss or the motion

for bill of particulars, yes. And I'll hear from anybody.

MR. KOHNEN: Jeanne, do you have anything to add on

that?

MS. CORS: No, I don't.

MR. KOHNEN: I don't have anything. We really don't

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case: 1:18-cr-00043-TSB Doc #: 83 Filed: 01/27/20 Page: 4 of 56 PAGEID #: 789
 5

have anything to add on the motion to dismiss or the motion for

bill of particulars. As the Court can tell, and we appreciate

the fact that you've read the memos, but the reason I mention

that is because, as I think you can probably tell, we see all

of these -- all three of these motions as connected to one

another. And I think, to boil it down to its essence, the

connection really is -- can be as simple as one word, really: 

information. Not as in the charging document but as in

information, the body of material that we need. We have --

THE COURT: Can I interrupt and clarify?

MR. KOHNEN: Sure.

THE COURT: The government has not suppressed

evidence. They've given you everything they have, and you're

not happy with the ability to manage it.

MR. KOHNEN: Yeah. And I think they've given us

everything they -- well, I don't think they've given us

everything they have. I don't know if they've given us

everything they have.

THE COURT: I'm just trying to make the point I don't

think it's an issue of suppression. I think it's an issue of

manageability of what you've been given.

MR. KOHNEN: Yeah, the CIPA material aside. We have

no idea what's going on with that.

THE COURT: The Court's on that.

MR. KOHNEN: Okay. 

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case: 1:18-cr-00043-TSB Doc #: 83 Filed: 01/27/20 Page: 5 of 56 PAGEID #: 790
 6

Yeah, they've given us the material. They've attributed it

to Mr. Xu. To our satisfaction, at least, they haven't

demonstrated that it's exclusively from Mr. Xu.

But the more important thing is, it's not in a form that we

can use, and it's voluminous. They have gone to great lengths,

apparently, to find -- through word searches, as they've

represented to us in prior conferences, and other things --

inculpatory material, and they've found those needles in the

haystacks, they've translated them, and they've produced them

to us.

Now they refuse to use those same capabilities to assist us

and to fulfill their obligation to seek and find exculpatory

material.

THE COURT: And their obligation is to seek and find,

not to tab, organize, translate, and present for you,

particularly if they're your documents.

MR. KOHNEN: Judge, I think it would be great if they

would start with an acknowledgment of their obligation to seek

and find and embark on efforts to do so. To date they haven't

even done that, and to date they refuse to do that.

It would be easy for us to work out some kind of mechanism

to get the information identified and translated once they were

willing to do it. My point in referring back to the 9,000

documents --

THE COURT: Pages?

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case: 1:18-cr-00043-TSB Doc #: 83 Filed: 01/27/20 Page: 6 of 56 PAGEID #: 791
 7

MR. KOHNEN: -- 9,000 pages is they've now proven they

have the ability to do that, and yet they won't do it for us.

That's the first problem that we have, and I think it's the

only really significant problem. Because if they were to

commit to do that, then I think the rest of this would fall in

line.

THE COURT: Tell me what the problems are with the

format of what's been produced to you.

MR. KOHNEN: I will start with that, but it's not just

the format that's our problem.

THE COURT: You've gotten a bunch of documents.

MR. KOHNEN: Right.

THE COURT: And now you've got to --

MR. KOHNEN: We now have readable electronic data.

THE COURT: Okay.

MR. KOHNEN: That's all we have. It's not indexed;

it's not searchable.

THE COURT: All right. Let's talk about not

searchable. I thought they produced virtually everything in

PDF.

MR. KOHNEN: They probably have.

THE COURT: So you can -- 

And you can help me if need be.

With software, you can pop it into a PDF that's searchable.

MR. KOHNEN: I don't think -- 

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case: 1:18-cr-00043-TSB Doc #: 83 Filed: 01/27/20 Page: 7 of 56 PAGEID #: 792
 8

Jeanne, maybe you can help us. 

I don't think, number one, we have the software. And I'm

not sure that the equipment that Mr. Xu has is capable of

accommodating that software.

THE COURT: All right. I'm going to interrupt and ask

Ms. Frankian to speak to that.

THE LAW CLERK: If the information --

THE COURT: Louder for me.

THE LAW CLERK: If the information is already in a

PDF, even if it's in Mandarin, it's still searchable. So, for

instance, all you need is the character, and you just copy and

paste it. So Control F, Copy, Paste, and it will find it for

you. You won't know what it means, but you'll find it. And

then that will at least get you to the sections where that

particular character is.

THE COURT: And you can translate that character.

THE LAW CLERK: And then you can translate that.

MR. KOHNEN: Right. Which leads me to the bigger

logistical problem.

THE COURT: Okay.

MR. KOHNEN: Which, because of the logistical

difficulties, is a bigger problem, frankly.

THE COURT: Tell me what it is.

MR. KOHNEN: Mr. Xu is stuck at the Milan Federal

Correctional Institution.

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case: 1:18-cr-00043-TSB Doc #: 83 Filed: 01/27/20 Page: 8 of 56 PAGEID #: 793
 9

THE COURT: And he has an opportunity to review, in a

language he speaks, the documents that came from him.

MR. KOHNEN: Allegedly came from him, but --

Yes, he does, but he's not a trained lawyer. He doesn't

understand the American judicial system. He doesn't know what

to look for. It's that simple. And even if he did know what

to look for, if we gave him the benefit of the first year of

law school, it wouldn't be us doing it.

THE COURT: He can certainly identify the irrelevant

portions, the photographs that take up all this stuff, the

e-mails from Joseph Bank, whatever it is. He can tell you

those are irrelevant and start to weed it down, can't he?

MR. KOHNEN: Judge, there are relevance questions that

go to this court and the Court of Appeals and the Supreme Court

every day. 

(Cellphone rings.)

MR. KOHNEN: Pardon me. I'm sorry about that. 

No. The answer is no, he's not capable to deal with --

THE COURT: Telling you what's spam in his stuff?

MR. KOHNEN: Spam is one thing.

THE COURT: I consider Joseph Bank spam.

MR. KOHNEN: It could be. But what if Mr. Xu had a

receipt from Joseph Bank on the day he was alleged to have been

in Amsterdam?

THE COURT: Well, then would he not tell you he was in

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case: 1:18-cr-00043-TSB Doc #: 83 Filed: 01/27/20 Page: 9 of 56 PAGEID #: 794
 10

Joseph Bank in Russia at the time and you would go looking for

that document?

MR. KOHNEN: My point, Your Honor, is we can't trust

him to do what lawyers have to do.

THE COURT: And then I'm suggesting, in a practical

world, he can help you enormously by identifying what's clearly

not relevant.

MR. KOHNEN: Yes. But clearly not relevant --

THE COURT: I'm just talking about --

MR. KOHNEN: -- is just a small step --

THE COURT: Okay. 

MR. KOHNEN: -- on the way to finding Brady material,

Jencks material, and Giglio material. Again, fights repeatedly

in this court, in the Sixth Circuit, in the Supreme Court among

lawyers, sophisticated lawyers, about what really is Brady

material. Right? How are we going to trust not just a

civilian but a civilian from an entirely different culture to

screen that and to do that work? It's just impractical. It's

not just impractical --

THE COURT: That assumes that it's the government's

responsibility to translate it and provide it all to you. Can

you not get to work on figuring out what's in his own

documents?

MR. KOHNEN: We are working furiously at that.

THE COURT: I'm sure you are. That's why you've got a

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case: 1:18-cr-00043-TSB Doc #: 83 Filed: 01/27/20 Page: 10 of 56 PAGEID #: 795
 11

long time for trial. 

MR. KOHNEN: But you've got to understand, we don't

have the capabilities they have. One of our filings made

reference to the unit that the Department of Justice and the

FBI has, which I'm sure these prosecutors or their

investigators took advantage of. Okay?

THE COURT: I think you have the technology, the

smarts, to get this done.

MR. KOHNEN: We do.

THE COURT: And I was just searching --

MR. KOHNEN: We do, but we --

THE COURT: -- for ways to practically be of

assistance.

MR. KOHNEN: We do.

THE COURT: You do have the ability?

MR. KOHNEN: We do, but we don't have the time and we

don't have the manpower.

THE COURT: Anything further?

MR. KOHNEN: Judge, you know, I don't want to beat a

dead horse, but we get precious few hours per visit roughly

every other week with Mr. Xu. I mean, I understand where the

Court's coming from, and we -- it is physically possible to get

it done, but it's not physically possible to get it done before

I retire from the practice of law.

MS. CORS: If I could weigh in just on another

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case: 1:18-cr-00043-TSB Doc #: 83 Filed: 01/27/20 Page: 11 of 56 PAGEID #: 796
 12

practical issue we're facing with respect to where Mr. Xu is

and the computer access he has.

Even assuming he has the knowledge regarding the case and

the legal knowledge to go through and identify what is relevant

in his mind, what is extraneous, we don't have a way to easily

have him identify that and get that information even to us

because we're not linked. 

You know, normally in our firm we would use something like

Relativity or Summation, and people could tag documents, mark

them, put notes on them, and everyone would have access to

that. We don't have that here.

I mean, what he has is a pretty old computer that he can

pull up this information, look at the equivalent of the screen

of his phone or a phone, or an e-mail account, and start going

through it.

But then there's really no practical way, even if he has

identified, you know, ten references in the phone data, to be

able, for us, to then easily understand and know what that was.

I mean --

THE COURT: Why can't he identify that for you?

Although he can't do it with some sophisticated software, he

can write it down, can't he? I'm just trying to understand.

MR. KOHNEN: Judge --

THE COURT: Let me -- let me hear the response to

that.

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case: 1:18-cr-00043-TSB Doc #: 83 Filed: 01/27/20 Page: 12 of 56 PAGEID #: 797
 13

MS. CORS: He, I suppose, could say, "If you go into

this device, this folder, this number," we might be able to

then backtrack into that, but that becomes extraordinarily time

consuming and difficult to get us that information and again

we're back to, you know, at most we're getting maybe eight

hours in a two-day block to meet with him. That -- honestly,

everything that's taking place then tends to be answering his

questions and still trying to get through the discovery.

So I don't think it's practical for him to be able to

navigate these devices, somehow pinpoint what is relevant, and

then tell us.

THE COURT: Okay.

MS. CORS: The other problem is, you know, it comes

back to some of these other motions. But from our perspective,

we're at a deficit, even as lawyers, in terms of knowing -- you

know, talking about certain character searches, even if we were

able to identify characters -- and I think that's a big "if"

given the number of Chinese characters there are in the

different dialects -- we have very little information at this

point about the core case. And, you know, usually you have

that information and then you develop search terms based on

that information.

So we're at a deficit with information and we're at a

deficit with respect to the language and this issue of

characters.

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case: 1:18-cr-00043-TSB Doc #: 83 Filed: 01/27/20 Page: 13 of 56 PAGEID #: 798
 14

THE COURT: You wanted to say something?

MR. KOHNEN: Judge, mechanics. I was just going to

say, you know, he can't even sit down with a piece of paper and

a pen -- or a pencil, probably, more likely -- and jot down

Bates numbers because the material they gave us doesn't even

bear Bates numbers.

So maybe to way overuse a bad analogy, he might be able to

shrink the haystack a little bit for us.

THE COURT: He might what?

MR. KOHNEN: He might be able to shrink the haystack a

little bit for us, but we're still not going to be able to find

the needles.

But I think most importantly, I don't want to lose sight of

the legal obligation that the government has here. They have a

duty to find and turn it over to us. They can't -- and our

hyperbole is we should have been less, because I hope this

message is clear. It's their obligation. Okay? Brady, Kyles

versus Whitley, all the cases that come along, it's their

obligation, of the material that they possess, to find it and

to turn it over to us.

That was actually memorialized in a memo to all of these

prosecutors in January of 2010, January 4th of 2010, almost

exactly ten years ago, by a deputy attorney general named Ogden

that they recognize this obligation. For whatever reason, the

prosecution in this case is ignoring that, is refusing to

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case: 1:18-cr-00043-TSB Doc #: 83 Filed: 01/27/20 Page: 14 of 56 PAGEID #: 799
 15

recognize that obligation.

THE COURT: I reject it out of hand. 

I'm looking at Warshak, which you didn't even cite until it

was brought to your attention. Be that as it may, what else do

you want to say before I hear from the government?

MR. KOHNEN: I think we did a pretty darned good job

of distinguishing Warshak in our reply brief. And if the Court

would like to hear more on that --

THE COURT: No, thank you.

MR. KOHNEN: -- we're happy to do it.

THE COURT: I'll look at your reply brief.

MR. KOHNEN: I hope you will, Judge.

THE COURT: I have.

MR. KOHNEN: Okay. Because the Warshak case was

completely different than this case.

I think also that the Court has to recognize, must

recognize, the facts of this case and the circumstances that we

have here are completely unique. This is a helpless defendant.

I mean, this is a much more difficult situation than Steve

Warshak and his mother and his employees found themselves in.

And I'm familiar with the Warshak case because I signed that

Indictment.

THE COURT: I understand. We each have a role to

play. Was there more you wanted to say at oral argument?

MR. KOHNEN: Anything to add?

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case: 1:18-cr-00043-TSB Doc #: 83 Filed: 01/27/20 Page: 15 of 56 PAGEID #: 800
 16

MS. CORS: I think the only other point, and, you

know, we do flush this out, but in terms of the duty to provide

Brady, at its core when you look at any of these open file

cases, the courts, where they have permitted open file, it's

been on the basis that both sides are equally in a position to

find the information. And given the limited information we

have about this core case, what companies are at issue, what

trade secrets are at issue, who these co-conspirators are, we

aren't in a position, even as lawyers, to properly identify

Brady material to the same extent that the government is right

now. 

And I think that is a key issue that each of those courts

addressed and, in the cases the government cites, found that in

fact the defendant was in a position, an equal position, to

find Brady, and that's just not the situation we're in right

now.

THE COURT: Very well.

Did you have anything you wanted to weigh in at this point,

or pivot to the government?

THE LAW CLERK: I did have a question. The 9,000

pages that were presented, is that not the core case? 

THE COURT: What was the question?

THE LAW CLERK: The 9,000 pages that have been

translated and presented, is that not a sufficient outline of

the case? I think at one point Mr. Mangan had said that

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case: 1:18-cr-00043-TSB Doc #: 83 Filed: 01/27/20 Page: 16 of 56 PAGEID #: 801
 17

whatever documents they intend to use in their case they'll

translate or they have translated and given to you and that

they'll do so going forward.

Doesn't that give you the information that you need

regarding the case, or is there something that's still missing?

Just for purposes of trying to come up with a practical

solution.

MR. KOHNEN: We don't know. I mean, that's their

representation some time ago. Now, the breadth of the case,

and particularly with respect to the conspiracy counts and the

either intrinsic or 404(b) evidence, depending on how you look

at it, has expanded greatly. At least that's our conclusion

based on these supplemental productions that are pretty large.

The one thing I'll --

THE COURT: Will you speak up, please.

MR. KOHNEN: Yeah. I'm sorry.

The one thing I'll repeat is, that was identified to us by

the government, and I'm repeating essentially what you just

said, but as their core case.

In our view, the case, at least the evidence that they

intend to have available to them, has expanded greatly. I

don't know if the core case and its 9,000 documents have

expanded greatly. But I want to stress that all of that, by

their own admission, is inculpatory in nature and not

exculpatory.

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case: 1:18-cr-00043-TSB Doc #: 83 Filed: 01/27/20 Page: 17 of 56 PAGEID #: 802
 18

THE LAW CLERK: Would it be helpful for you to

provide -- do you know what keywords were used to search for

the documents that they gave you?

MR. KOHNEN: No. And as I'm sure you know, we had

suggested at the very end of our reply memo that we would like

to use those tools they have with our own search terms.

THE COURT: Did you have anything more?

THE LAW CLERK: Just whether the government would be

willing to add some search terms.

THE COURT: Well, let's hear where we are. We've

heard oral argument from the defense. Who wishes to be heard

in response to what we've heard and had presented to us?

MR. MANGAN: I will, Your Honor.

THE COURT: Good.

MR. MANGAN: With respect to this particular issue,

there are a few things I wanted to highlight, particularly that

came from their reply memo, because that's when they kind of

got deeper into the issues that were raised in Warshak. And

they raised a few things in describing the discovery that

concerned us in terms of -- that may have muddied the waters a

little bit.

I did want to offer to the Court, before I jump into some

of the details, to try to clarify, you know, exactly what we've

been doing. We took the letters that we produced with the

discovery, and, you know, with each one it has a spreadsheet

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case: 1:18-cr-00043-TSB Doc #: 83 Filed: 01/27/20 Page: 18 of 56 PAGEID #: 803
 19

that lays out here's what's in this production, we called them

tiers, you know, with the Bates labels and then the

classification levels.

And it has come out in pieces. We've got, you know, six or

seven tiers. But I put all the letters and the spreadsheets

together that we can submit to the Court and provide to you so

that you can have a full understanding of how we've tried to

present things so that they would not be unduly onerous.

I also have -- at one point when we provided the

translations to them and our Bates labeling, they had a concern

that, well, it's hard to find that translation in the

electronic version that's in the report. And so they asked

for, sort of, a way to cross-reference the translations to the

electronic report.

So last July we had provided them with a letter and then a

different spreadsheet that goes through a cross-reference for

each of those items. And then for many of those

cross-references we gave attachments that have screen shots of

it to help sort of guide them through the process of finding

where those translations were.

And some of this, we wanted to mark it in case the Court

was willing to look at this, or at least accept it, in the

record. We think it's important to show, based on what they

placed in the reply, the efforts that we've gone to to try to

make this manageable and not onerous on the parties, but it

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case: 1:18-cr-00043-TSB Doc #: 83 Filed: 01/27/20 Page: 19 of 56 PAGEID #: 804
 20

also gives the Court a little bit of an understanding, just in

terms of screen shots, as to what it looks like when you look

at some of these electronic reports.

So with that background, I wanted to touch on a few points,

Your Honor. First, they identify or they made a statement that

the government has been producing items from a myriad of

sources, many of which are not related to Mr. Xu. That is not

our understanding in terms of what is at issue. We believe

what is at issue is we take in a number of electronic devices

or accounts -- so we had e-mail accounts, we had an iCloud

account -- that we attribute to Mr. Xu. I understand they can

contest that. And within the iCloud account, which has been,

frankly, the most voluminous issue, it has backups of a couple

phones that had a lot of data on them.

And then we also have devices that were recovered in

Belgium at the time of the arrest of Mr. Xu and his colleague.

Those, frankly, are smaller in terms of the volume of data.

The largest item and where most of the translations have come

from has been from that iCloud account and the backups within

it.

When the FBI went through and tried to triage what they

wanted to translate --

And by the way, given who Mr. Xu is or who we contend he

is, the FBI has, you know, tried to find what they thought

would be relevant. They certainly had an incentive to look for

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case: 1:18-cr-00043-TSB Doc #: 83 Filed: 01/27/20 Page: 20 of 56 PAGEID #: 805
 21

things.

-- they were triaging and looking for, okay, who were other

individuals who might have been in MSS. We think this person

is. You know, Joe Smith is a colleague we think is in MSS.

Let's start triaging those and seeing if we need to pull those

conversations or those messages and translate them.

When we got the translations, as we said, we produced

those. They are part of the 9,000 pages. We are not going to

present anything that is not within the 9,000 pages of

translated documents. Obviously, there was testimony, but --

MR. KOHNEN: Can you repeat that? Sorry.

MR. MANGAN: I said it before as well.

THE COURT: Can you read that back.

(Record read.)

MR. MANGAN: And we will have witness testimony. What

I'm talking about is, so, for example, for the iCloud account,

what we've translated out of that account and what we've pulled

out, presented to them, will be the subset, if you will, from

which we will pull our evidence related to that evidence, if

that makes sense to the Court.

In other words, we're not going to suddenly show up with

something in Mandarin from a different part of the iCloud that

we did not previously translate.

Hopefully, I've made that more clear instead of more muddy.

But when you go through that, they translated all that

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case: 1:18-cr-00043-TSB Doc #: 83 Filed: 01/27/20 Page: 21 of 56 PAGEID #: 806
 22

information, so my understanding is what's left or sort of

what's at issue is are the items that were not translated.

I do want to mention, within those things that were

translated, we're not going to use all of them. Sometimes they

found conversations between people, they thought it was going

to be important, they're talking about dinner arrangements,

they're taking pictures of their dinner. You know, there are

things in there that we're not going to use all of this stuff.

THE COURT: That's within the 9,000 documents?

MR. MANGAN: Yes, yes.

THE COURT: Okay.

MR. MANGAN: So you're not going to find that every

line of that was on point. They were trying to triage and find

the things that were relevant as best they could.

A couple other things to be mentioned. When they talk

about things came from a myriad of sources outside of Mr. Xu, I

don't know who they're referring to other than maybe the

devices that his colleague had on him.

My understanding is, you know, the dispute here relates to

the untranslated pieces of the electronic evidence that we

contend went with Mr. Xu or his associate in Belgium. There

was nothing else that we grabbed from other sources, frankly,

as far as electronic evidence that is not translated.

Secondly, they mentioned -- I took offense to this -- that

the government padded the discovery with irrelevant documents.

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case: 1:18-cr-00043-TSB Doc #: 83 Filed: 01/27/20 Page: 22 of 56 PAGEID #: 807
 23

I don't know how we would do that, first of all. You know, if

we had taken the iCloud document -- or taken the iCloud

account, pulled what we thought was relevant and produced that,

they would have screamed that we didn't produce the whole

account. We produced the whole account and the translations.

How they can say that constitutes padding, I don't know. I

don't know what we would have done differently.

We have tried to be as clear as possible in terms of what

we're producing, as far as where the translations are coming

from. So I do take offense to saying that we padded the

discovery with irrelevant documents.

They mention in there that xxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

xxxxxxxxxxxxxx. In the effort to, you know, clarify some of

the items that are in the discovery and items that they are

asking about either as parts of the conspiracy or potentially

it's 404(b), we specifically identified, xxxxxxxxxxxx

xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx. You

know, Here are the details related to that charge. Here's the

evidence that we will use from that that is not already in Mr.

Xu's devices. And so we produced those, they're Bates labeled,

they're in the production.

xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx.

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case: 1:18-cr-00043-TSB Doc #: 83 Filed: 01/27/20 Page: 23 of 56 PAGEID #: 808
 24

He has text messages with the individual. Those are part

of what has already been translated and what has already been

produced. xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

xxxxxxxxxxxxxx we produced as well and put them in a separate

category.

These additional documents, you know, xxxxxxxxxxxxxxxxxx

xxxxxxxxxxxxxxxxxxxxxxxx, it's less than 300 pages. It's like

this (indicating). So for them saying that we've expanded the

scope and xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

xxxxxxxxxxxxxxx.

When they mention that we've made discovery unduly onerous

or overly onerous, mainly they refer to the BOP situation,

which we cannot control. We're trying to work with it, because

I think everybody throughout the case has been trying to find

accommodations to make that as reasonable as possible. But

with respect to Brady obligations, we are doing everything we

can. We are not doing anything to make discovery overly

onerous or unduly onerous, as required -- or as stated in

Warshak.

With respect to the data, a couple things that I do want to

pull out for the Court. When you look at these -- we call them

UFED reports. So take the iCloud account. When it was

produced, I think as you'll recall, we originally took the

account in its raw data format and provided that electronic

information to the defense in the raw, sort of, forensic

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case: 1:18-cr-00043-TSB Doc #: 83 Filed: 01/27/20 Page: 24 of 56 PAGEID #: 809
 25

format. And they said, "Well, you need software. You need to

hire somebody to do that to be able to read it." Fine.

So we went back and took that same account, ran it through

something that creates what we call a UFED report. It's an

electronic report so that, when you pull it up, it has a table

of contents on the left-hand side and you can click on those

things. So, for example, it might have e-mails. It might have

SMS messages, which are texts. It might have phone calls, just

a phone log. It's a little bit scary, frankly, what all it

finds on there.

It will have a timeline. You can hit timeline, and it will

pull up all of the data on the report, whether it's a call or

an e-mail or a text or a picture, and it will put it in

chronological order so you can actually -- it will pull from

the different sources and put it in chronological order. It

will have pictures, it will have videos, audio. It will break

it down into various categories. And then when you go and

click in those, it might bring up -- you know, so, for example,

SMS messages, it might look like this. So it's a table, and

then either it shows you the actual message in a table format,

or if it's a document or an audio, you click on it and then you

can get into the content.

So with respect to phone numbers, you can look for phone

numbers. You can look at things chronologically. They said

you can't search things by date. This is actually, more than

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case: 1:18-cr-00043-TSB Doc #: 83 Filed: 01/27/20 Page: 25 of 56 PAGEID #: 810
 26

any other piece of information, this kind of format you can

narrow things down by date through the timetable. If you --

you know, a number of these folks in the WeChats, they're

identified either by name or a nickname or a phone number, so

you can pull specific people.

You know, beyond that, yeah, there's a lot in there, but we

did our best to try to cull it down to provide, as you called

it, hot docs, which is essentially, you know, the way that we

were trying to proceed with this case in an orderly fashion.

Then the last thing I'll say, Your Honor, is I don't know

what I would look for to find exculpatory information in this,

because we have sort of an odd case where -- and they have the

right to do this -- but, you know, we contend he is a certain

person and they contend he is not, or they may assert that he

is not at all who we say he is. So everything that we find

that asserts any connection to MSS or that work we would

consider inculpatory. Anything that we would consider -- an

alias we might consider inculpatory; they might consider it

exculpatory. We produced those as well where he's used other

names because we consider that inculpatory.

If there is a search term, I don't know what it would be.

I just don't know what I would look for specifically in there.

But we've done the best we can, and we've tried to make this as

orderly as possible.

Given the allegations that were put in the reply, we would

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case: 1:18-cr-00043-TSB Doc #: 83 Filed: 01/27/20 Page: 26 of 56 PAGEID #: 811
 27

like to offer, you know, these two exhibits so that the Court

at least can have as much detail as you would like to

understand what the government is doing in this case with

regard to discovery.

If I could have one moment, one minute.

THE COURT: Yes.

MR. MANGAN: Is there anything else?

(Mr. Mangan and Ms. Glatfelter confer privately.)

MR. MANGAN: So Ms. Glatfelter is pointing out a

better page in terms of the screen shot. But this shows you on

the left, it's a little dark, but it kind of shows you the

table of contents and the tabs, the type of tabs that you could

click on within the UFED report to find things.

MS. GLATFELTER: And up on the top right, you could

put in the phone number. For example, if you wanted to see if

Mr. Xu was in contact with particular phone numbers or people,

you would put it up in that right-hand corner. You could

search the report, and it would cull the contacts. Every time

that phone was in contact, the last contact, whether it's been

an SMS message, whether it's been a WeChat message, those would

all come up. And you could see the same thing in the timeline.

So that UFED report is certainly searchable in some of the

ways that they want to search.

MR. MANGAN: But that's really all I have to say, Your

Honor. Obviously, it's whatever questions --

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case: 1:18-cr-00043-TSB Doc #: 83 Filed: 01/27/20 Page: 27 of 56 PAGEID #: 812
 28

THE COURT: My visceral reaction is I would like those

documents in the record. If I do that, I think you get a reply

memo only as to those documents, if you wish. I'm not sure

that's required. That's my initial reaction to that.

MR. KOHNEN: But for the record, Judge, we have no

objection to them, to their submitting it to the Court.

THE COURT: Thank you.

MR. KOHNEN: But we would like to get -- you know,

just have a look at them. We've received them all, I believe.

MR. MANGAN: Yeah.

MR. KOHNEN: And I'm going to take the prosecutors at

their word.

THE COURT: Right.

MR. KOHNEN: But I don't want to spend the time here

to confirm that.

THE COURT: Understood.

MR. MANGAN: Fair enough. We provided copies, but

this is the correspondence we sent to them.

We would ask, Your Honor, if we could keep it under seal,

because it does go through certain names and classifications.

MR. KOHNEN: No objection to that, Judge.

THE COURT: The Court's comfortable with that as well.

MR. KOHNEN: And just -- oh, sorry.

THE COURT: Do you have questions or comments for the

government? You had a question when we started, Ms. Frankian.

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case: 1:18-cr-00043-TSB Doc #: 83 Filed: 01/27/20 Page: 28 of 56 PAGEID #: 813
 29

Based on what they've said, do you have anything you wish to

inquire of the government?

THE LAW CLERK: Would the government object to telling

the defense what search terms you used so that if there are any

additional -- I mean, I'm sure a lot of it was, you know,

names, phone numbers, and things like that. But if, for

instance, you ran a search for the word "university" and just

translated wherever that popped up or something like that.

MR. MANGAN: I'd have to -- my only reluctance is

being able to reconstruct how they triaged, because sometimes

they might be looking -- sometimes it might be a name,

sometimes it's more of a personal connection or -- so I think

the analysts who were trying to look through it, it might have

been a winding road. 

So that's my only hesitation, is can I fully reconstruct

exactly what each person looked for. If the Court ordered, we

could certainly go back and try to endeavor to do that. I

just -- it wasn't like, sort of, the simple thing where you

get, let's say, a complete e-mail file and you just do search

words, you know, like in a corporate case, to pull something.

This was, I think, a little bit different because they were --

You know, certainly there were certain companies they could

look for and I think they did look for. Certain universities

came into play. But I think as they found different MSS

individuals, I think, you know, it changed. So if there's a

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case: 1:18-cr-00043-TSB Doc #: 83 Filed: 01/27/20 Page: 29 of 56 PAGEID #: 814
 30

number, phone number, that they didn't know who it was, they

might have done more searches to figure out who this is, does

it seem like a person they're interested in. If they looked at

it and realized, "Oh, no. This is his gardener," they might

have disregarded it.

So that's, without sort of knowing, you know, every single

thing that they did, that's my only hesitation, is I don't know

that I can fully reconstruct it, but we could try to do it,

whatever the Court would ask.

THE LAW CLERK: So maybe -- I'm sorry.

THE COURT: Is there a follow-up question to that

about them providing search terms? 

THE LAW CLERK: Perhaps it would be easier if the

defense wanted to provide search terms not for the purpose,

necessarily, of translating them but just to see is there a way

that you can easily go through, as easily as possible go

through and just identify where that particular name or that

particular word comes up, and just provide those so that at

least they can go straight to that e-mail or that --

MR. MANGAN: That might -- that might be something we

could do.

THE COURT: So I'm not holding anybody to it yet, but

you don't find something extraordinarily prohibiting your

giving them your best recollection of the search terms you

used?

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case: 1:18-cr-00043-TSB Doc #: 83 Filed: 01/27/20 Page: 30 of 56 PAGEID #: 815
 31

MR. MANGAN: I'll want to go back and, sort of, talk

with the FBI and try and understand how best they can

reconstruct that.

THE COURT: And if they have search terms, you might

consider using those for them?

MR. MANGAN: Yeah, I was going to say, the second

point in terms of them providing search terms might get more to

the heart of what they're complaining about, and that would

certainly be easier to execute.

THE LAW CLERK: The reason I asked about them

providing the search terms was just so that the defense doesn't

provide a list that they've already searched. But it seems

like it's harder for them to reconstruct what they've already

done, rather than the defense providing it, as opposed to the

other way around.

MR. MANGAN: Yeah. There might be a deduplication

issue there, but --

THE COURT: Did you have other comments or questions

for the government? Because I'm going to give them a reply,

and then I'll want to clarify something, and I want to touch

base on the calendar.

THE LAW CLERK: No, Judge, I don't think --

MR. MANGAN: I'll say one thing. If that's the way

the Court goes or we agree to do something where they provide

search terms, we do not agree that that is what is compelled by

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case: 1:18-cr-00043-TSB Doc #: 83 Filed: 01/27/20 Page: 31 of 56 PAGEID #: 816
 32

Brady --

THE COURT: Right.

MR. MANGAN: -- and that we have not satisfied it, but

in order to help, we are certainly open to that.

THE COURT: I think that's an important and understood

statement.

Did you want to reply in oral argument?

MR. KOHNEN: Yes, Your Honor.

First, I want to say thank you for the progress we've made

on this issue.

THE COURT: Thank you.

MR. KOHNEN: Also I want to -- again, clarification

first. With respect to the UFED reports, as they refer to

them, we're not yet able to work with them. We've got a

vendor, but because of the protective order and other factors,

we have to completely divorce all of this stuff from our

existing systems at the office. And we're working now with a

new software to use to work. I think it's Summation. Unless

the software -- I mean, I've seen printouts of the UFED stuff

that they referred to and I've seen some of those screens, but

I didn't know it was searchable.

THE COURT: Well, let's see if we can clarify that

now.

Can we?

MR. KOHNEN: We'll work on that.

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case: 1:18-cr-00043-TSB Doc #: 83 Filed: 01/27/20 Page: 32 of 56 PAGEID #: 817
 33

MR. MANGAN: The CD that it's on comes with its own

reader, but there is no separate software that's required.

MR. KOHNEN: Okay.

MR. MANGAN: You can take a computer out of the box

and plug this in and you can read it and work with it. I

believe there was an issue earlier when we --

Correct me if I'm wrong, Ms. Cors.

When we sent the document that had our cross-reference,

they had some questions about trying to find things, and we got

on the phone, and I remember it was Ms. Cors and then two other

associates or paralegals.

MS. CORS: Two technologically savvy.

MR. MANGAN: Okay. Well, then two -- you were right

with them, but the other two seemed more savvy. And so we

all -- they got on the system, and we had it up as well, and we

had a conference call and we tried to walk through, "No. You

click on this and then you click on this," because I think they

were having trouble opening the audio files. We helped them

kind of find, "No. You go to the right-hand side and you

click, right click, and it will open." And so we worked

through a few of those issues.

That was some time ago, and I have not heard anything until

today that they had issues.

MR. KOHNEN: Judge, and I am probably the least

technically savvy person, maybe second-least, so I may have

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case: 1:18-cr-00043-TSB Doc #: 83 Filed: 01/27/20 Page: 33 of 56 PAGEID #: 818
 34

overstated the problem, or misstated.

I don't know yet whether Mr. Xu has the capability to

search the UFED reports, but I'll get an answer to that

question very soon.

MS. CORS: I don't believe that he does, because right

now he's using a computer with an English keyboard. I'm not

aware of any way for him to actually search what's there. 

Unless you guys know a way. I mean, he doesn't have

Internet access.

THE COURT: Ms. Frankian?

THE LAW CLERK: I think even with the English

keyboard, because a Chinese keyboard has English letters on it,

so it would -- and so it would just convert. It's pinyin, so

you just put it in phonetically and it just converts it to the

character. So if he were -- and that's very likely the way,

you know, that he was typing just in his, you know, sending

e-mails to friends and family. And I don't believe that you

need any particular software for it to do that. I think

there's just a setting that you can select.

MR. KOHNEN: Except for the reader that they

mentioned.

THE COURT: I didn't hear you.

MR. KOHNEN: Except for the reader that Mr. Mangan

mentioned, or Ms. Glatfelter.

THE LAW CLERK: I believe it was on the disk already.

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case: 1:18-cr-00043-TSB Doc #: 83 Filed: 01/27/20 Page: 34 of 56 PAGEID #: 819
 35

MR. MANGAN: That is how you interact with it. You

click on the reader, it opens up the document, and you're off

and running.

MS. GLATFELTER: You can work it from the CD, or you

can -- I've saved it on my hard drive. So I have a file I open

up, and it goes right to it.

THE COURT: So we're going to hear a little bit more

of your reply? 

Just to lighten your load, it's T.S. Black, "Technically

Savvy Black." Go ahead.

MR. KOHNEN: Thank you, Judge. The first I've heard

of that.

We have no problem with the -- Mr. Mangan said they tried

to present these things so that they would not be onerous. And

he said that they provided them in stages and he said that he

provided English, they were English translations.

I want to be clear with the Court. We don't have any

problem with the English translations. We can read and

understand English very well. And we've had those translated,

the ones that we think that are significant, into Mandarin.

Okay? We don't have a problem with how they've presented it.

They've sent us nice letters and informative indexes, as you'll

see. What we're talking about is all of this material that

they gathered that is in Mandarin that likely would be helpful,

pieces of which likely would be helpful to us.

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case: 1:18-cr-00043-TSB Doc #: 83 Filed: 01/27/20 Page: 35 of 56 PAGEID #: 820
 36

I've had the pleasure of working before this Court, and

there's all kinds of things that don't seem to others to be

relevant during the cross-examination of a witness, et cetera,

that from the defense perspective becomes very useful. And so,

you know, we have to get at that stuff. And I really -- that's

why I really appreciate this new willingness to sort of help

accommodate us and search through that data.

But I want to be clear. You know, everybody, except for

us, is assuming that all of this stuff belonged to Mr. Xu and

belonged exclusively to Mr. Xu. I want the record to be clear

that we're going to challenge the authentication of this stuff

from day one, because we've seen shared e-mail accounts, shared

iCloud accounts. We've seen -- Mr. Mangan refers to aliases of

Mr. Xu. But we've connected some of these alleged aliases to

actual people.

So these are all questions that remain open, and there are

things that, with a competent review of the Mandarin material

that's been sent to us, we can probably distinguish, at least

on occasion, which separate individual is saying what through

the same e-mail. It's going to be very critical to our

defense. And I was reluctant to flag it, but it's that

important to get at it.

So, you know, the translated -- so we're sort of back to

square one here, because the translated material is only

inculpatory. Mr. Mangan did a pretty good job -- 

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case: 1:18-cr-00043-TSB Doc #: 83 Filed: 01/27/20 Page: 36 of 56 PAGEID #: 821
 37

I didn't understand much of it, but that doesn't have

anything to do with his job. That has to do with my

capabilities. 

-- of describing the method by which they searched for

inculpatory material. It seems to me, especially given the

unique circumstances of this case, that they can employ or

deploy a similar method to help us help them fulfill their

obligation to find exculpatory material.

THE COURT: I understand that that is your argument. 

And can you click that page. 

Go ahead.

MR. KOHNEN: The other thing I just want to touch on,

this claim from Department of Justice lawyers that they can't

control the conditions of Mr. Xu's confinement, we just find it

really hard to believe.

Example: If the United States Attorney were to talk to the

Bureau of Prisons and the U.S. Marshals Service about an

alteration of this gentleman's conditions of confinement, it

would happen. If a deputy attorney general talked to the

Bureau of Prisons about this man's conditions of confinement

and sought a change, it would happen.

So it's not that they don't have the power to do it. It's

that the Department of Justice, which is also the parent

department of the Bureau of Prisons, has the power to do it.

They don't do it. And they have their own reasons, but I want

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case: 1:18-cr-00043-TSB Doc #: 83 Filed: 01/27/20 Page: 37 of 56 PAGEID #: 822
 38

to make sure the record's clear, because this is a serious,

serious impediment to us being able to do our work to represent

our client.

Ms. Cors? 

If I may, Your Honor.

THE COURT: Yes.

MS. CORS: The only other point I would reference, I

mean, there appears now there is discovery xxxxxxxxxxxxxxxx

xxxxxxxxxxx. We don't have access to any of those materials to

conduct any search for Brady materials from whatever universe

of materials have been collected by the government in each of

those. So, you know, if there is any Brady materials in those

universe of documents, only the government right now would be

in a position to be able to identify those and get them to us.

THE COURT: Do you have any inquiries, Ms. Frankian?

THE LAW CLERK: No, Judge.

THE COURT: Did you want a surreply?

MR. MANGAN: I think you've heard everything, so --

THE COURT: Well, we got off track on the conditions

of his being held.

MR. MANGAN: I would just say, with respect to the

documents that we examined and we believe were relevant related

xxxxxxxxxxxxxxxxxxxxxxxxxx, we have produced them. We

understand our Brady obligations with respect to those as well.

My understanding was the main issue that they were framing

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case: 1:18-cr-00043-TSB Doc #: 83 Filed: 01/27/20 Page: 38 of 56 PAGEID #: 823
 39

was specific to this electronic evidence and the accounts that

we have identified, but we do understand our obligations in

that regard.

THE COURT: And what have you done in that regard?

MR. MANGAN: We've produced -- I think I already

mentioned we produced xxxxxxxxxxxxxxxxxxxxxxxxxxx --

THE COURT: Right.

MR. MANGAN: -- xxxxxxxxxxxxxxxxxxxxx.

THE COURT: Incriminating documents?

MR. MANGAN: Yes. But we've also spoken with the

people involved. We realize we have to coordinate with them to

understand what else they have.

THE COURT: Okay. All right.

MR. KOHNEN: Judge, when appropriate, I just wanted to

alert the Court to a couple of things, a couple of issues that

we see coming up.

THE COURT: Okay.

MR. KOHNEN: And I'll wait for my turn.

THE COURT: We're almost there. So you're going to

give us these exhibits.

Do you want a date by which you need to file a reply, if

any, to the exhibits?

MR. KOHNEN: Judge, I think that the chances of us

needing a reply are exceedingly small. But for the -- on the

way-off chance that we might want to present some kind of

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case: 1:18-cr-00043-TSB Doc #: 83 Filed: 01/27/20 Page: 39 of 56 PAGEID #: 824
 40

response to the Court, I would ask for a week to do so.

THE COURT: All right. A week from today it will be

ripe whether you file or not.

It's been helpful. I appreciate the work that you all are

doing.

Anything you want to inquire about before I move to

calendar and whatever else he wants to bring to my attention?

THE LAW CLERK: So do we want to set a date for you to

provide the government with a list of search terms?

THE COURT: Are you interested in that?

MR. KOHNEN: Absolutely, yes. It may be a little

premature for a date depending on what -- I think Tim has to,

Mr. Mangan has to figure out if we actually can get it done.

Maybe not.

MR. MANGAN: Maybe I misunderstood.

MR. KOHNEN: Are you talking about a date for search

terms?

THE LAW CLERK: Uh-huh.

MR. KOHNEN: Yeah. I mean, we're happy to do that

if --

Will your folks be able to deploy the same tactics and

strategies that they used to find inculpatory material in

looking for exculpatory material?

MR. MANGAN: Without talking with them, I believe they

could. The forensic piece to all of these, by the way, is in

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case: 1:18-cr-00043-TSB Doc #: 83 Filed: 01/27/20 Page: 40 of 56 PAGEID #: 825
 41

your hands as well. We would use the tools that they have

where they are able to, you know, as a forensic examiner, open

them and do searches, so --

THE COURT: Nevertheless, although you don't believe

it's your obligation, if they gave you some search terms, you'd

be willing to run them?

MR. MANGAN: Yes. And if we encounter any issues,

we'll advise everyone.

THE COURT: And can we limit how many search terms

we're talking about? 

MR. MANGAN: That was going to be my next question.

THE COURT: Two or three, or, I mean, what's the

ballpark number?

THE LAW CLERK: May I ask just one question?

THE COURT: Yes, yes.

THE LAW CLERK: In light of the fact that any search

terms they provide you would search for using the same software

or the mechanism that they have access to as well -- 

Is that -- did I understand that correctly?

MR. MANGAN: Yes.

THE LAW CLERK: You don't have any method of searching

that they don't have access to?

MR. MANGAN: We have -- the forensic examiners have

tools where they can open it up and, you know, what they call

exploit the document or exploit the file.

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case: 1:18-cr-00043-TSB Doc #: 83 Filed: 01/27/20 Page: 41 of 56 PAGEID #: 826
 42

The raw data was provided to the defense. They did not

choose to engage someone to do that kind of work. So our

forensic examiner took and put it into a UFED report, which is

what we did provide to them, so that someone can just open it

up and search through it on their own. 

But they may have other tools. That's what I need to

check.

THE LAW CLERK: Okay. I thought that maybe the easier

way to do it would be for you to get -- or maybe they can come

to your office and you can show them how you search for the

first term, and then they can go back to their office and

search for the rest of the terms themselves, or something like

that. That way they don't have to provide you with all of the

terms and then be limited to that. They can search for as many

terms as they want, and you give them a demonstration of how

you would go about it.

MR. MANGAN: We can try that. I mean, bear in mind

part of what we're talking about is we need to search in

Mandarin.

THE LAW CLERK: Right.

MR. MANGAN: So we can start that way and, if it

doesn't work, we can take the terms to the FBI and see if they

can have better luck with it.

Does that make sense?

THE LAW CLERK: Uh-huh.

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case: 1:18-cr-00043-TSB Doc #: 83 Filed: 01/27/20 Page: 42 of 56 PAGEID #: 827
 43

THE COURT: So you guys are going to confer on this

and try and come up with a plan consistent with what we've

talked about and let us know in 30 days?

MR. MANGAN: That would be fine, Your Honor.

THE COURT: Is that okay?

MR. KOHNEN: I think that's a good idea, Judge. 

What do you think, Jeanne?

MS. CORS: My only other comment, I mean, originally

we talked about the government using the search terms that

they've already used to help identify Brady. I would ask that

that not be off the table. I mean, we still are at an

information deficit, from our perspective, that would make it

extremely difficult, if not impossible, to come up with set

search terms to apply to this data without knowing what

companies are we talking about, what trade secrets was Mr. Xu

allegedly trying to obtain. I mean, we still have an

indictment that covers, potentially, companies throughout the

world, and so --

THE COURT: And I guess you need the Court to rule,

and we're prepared to.

THE LAW CLERK: And I mean, I haven't seen it, so I

don't know, but I would assume there is a finite number, there

are a finite number of companies and potential co-conspirators

identified in the 9,000 documents they've provided. So if you

were to just assume that everything in the -- assuming that's

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case: 1:18-cr-00043-TSB Doc #: 83 Filed: 01/27/20 Page: 43 of 56 PAGEID #: 828
 44

correct, if everything -- you just limit it to the 9,000

documents, or excuse me, 9,000 pages of documents, is that -- I

mean, are there, you know, hundreds or thousands of companies

identified in those 9,000 pages?

MR. KOHNEN: I think that's -- I mean, that's a good

question. Because what you're asking is, essentially, is that

what sets the universe, what limits the size of the universe.

And while it's a good question, the problem is going to be with

respect to the 404(b) stuff and other material, I expect.

THE LAW CLERK: And that would be resolved --

I'm sorry. Can I see the calendar?

MR. MANGAN: I think it's February 24.

THE LAW CLERK: That you would disclose it?

MR. MANGAN: I think that's the initial disclosure.

THE COURT: Yeah, February 24.

THE LAW CLERK: So at the very least -- and then you

needed the Court's ruling on some of it. So by, you know, May,

for instance, you would know, not only would the government

have identified it, but to the extent that the defense is

arguing that any of this is not proper 404(b) evidence, you

would also have an answer to that by May, which I would assume

would be helpful in sort of narrowing down that universe.

MR. KOHNEN: I think May might be a little ambitious

after I identify one of the problems I see down the road at the

appropriate time, but --

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case: 1:18-cr-00043-TSB Doc #: 83 Filed: 01/27/20 Page: 44 of 56 PAGEID #: 829
 45

THE COURT: Well, we'll get to that momentarily.

THE LAW CLERK: I was just going off the briefing

schedule.

MR. KOHNEN: The most basic reason why I'm reluctant

to settle on a date -- and I think we're past this now, but

just so you know -- on a date to provide them with the search

terms is we're -- with Mr. Xu we're still finishing up tier

five of the discovery. So we've got all of tier six still to

go through with him and tier -- I believe there's a tier seven

as well. We're doing it, I promise, as quickly as we can, but,

you know, we're limited.

THE COURT: Well, you've told us that, and that's fine

and we'll deal with it, but you guys are going to confer in the

next 30 days and see if there's some progress to be made.

Bear with me. You made a statement that I had read back

that was a pretty broad statement, and then I thought you

clarified it. You said you're not introducing any documentary

evidence but for from the universe of 9,000 pages, but then you

said "from his stuff that we seized."

Were you telling me that there are no exhibits coming in

beyond those contained within the 9,000 hot documents?

MR. MANGAN: I wanted to make sure I understood the

question there.

That all of our exhibits would come from the 9,000

documents that we've provided?

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case: 1:18-cr-00043-TSB Doc #: 83 Filed: 01/27/20 Page: 45 of 56 PAGEID #: 830
 46

THE COURT: (Nods head up and down.)

MR. MANGAN: I'm just trying to think and make sure

there's nothing.

THE COURT: It was a broad statement.

MS. GLATFELTER: Right. Well, there could be, for

example, physical exhibits, like physical evidence seized.

Right? And there could be summaries of those documents from

the 9,000.

MR. MANGAN: But that's all still within the 9,000.

MS. GLATFELTER: Right.

THE COURT: But you're not going to pull something out

of his iCloud that's not in the 9,000 documents and seek to

introduce that. That was the thrust of your --

MR. MANGAN: Correct.

MS. GLATFELTER: Yes.

MR. MANGAN: Yes, that is correct.

THE COURT: Did you want to clarify anything, Mr.

Kohnen?

MR. KOHNEN: Not on that subject, no, Your Honor.

Thank you.

THE COURT: Has discovery reflected the identity of

all unindicted co-conspirators that you're going that rely on?

Do you understand the question I'm asking? 

Ms. Frankian, you wrote it, or something similar. Do you

want to restate it?

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case: 1:18-cr-00043-TSB Doc #: 83 Filed: 01/27/20 Page: 46 of 56 PAGEID #: 831
 47

THE LAW CLERK: I don't remember how I wrote it, but I

think your question is, are the names of every known -- 

(Mr. Mangan and Ms. Glatfelter confer privately.)

MS. GLATFELTER: We're just making sure we understand

exactly what you're --

THE LAW CLERK: Is the name of every known unindicted

co-conspirator contained somewhere within the discovery that

was provided?

MR. MANGAN: I think so.

MS. GLATFELTER: Right.

MR. MANGAN: Unless you have a different answer.

MS. GLATFELTER: No. I think you clarified it by

saying "known," so --

MS. CORS: And that's within the 9,000 documents?

MR. MANGAN: Yes. That was the question.

THE LAW CLERK: Okay.

THE COURT: The question was whether in discovery the

identities of all known unindicted co-conspirators has been

disclosed.

MR. MANGAN: Correct. Yes.

THE COURT: Not necessarily in the 9,000 documents?

MR. MANGAN: No, within the 9,000 documents.

THE COURT: Okay.

MR. MANGAN: I thought I was --

THE COURT: I think that's important for you to have

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case: 1:18-cr-00043-TSB Doc #: 83 Filed: 01/27/20 Page: 47 of 56 PAGEID #: 832
 48

heard.

MR. KOHNEN: I agree. It's very important.

MR. MANGAN: And just as a --

MR. KOHNEN: And I'm glad that it sets limits.

MR. MANGAN: I think as sort of a minor caveat, some

folks within that translated, you know, discovery are referred

to as nicknames. So when you said identified, they're in

there, but there may be a nickname or something like that,

so --

THE COURT: Fair enough.

MR. MANGAN: Okay.

THE COURT: Do you each have any other -- well, maybe

we should pause and hear what you've got on your list, Mr.

Kohnen.

MR. KOHNEN: Judge, I really just want to give the

Court a heads-up. In the beginning this morning and then later

during the proceedings the 404(b) issue was raised, and I want

to -- we believe that the question of what is and what is not

404(b) evidence is going to be something that is pretty hotly

contested and something that's going to take a fair amount of

the Court's time, and I just want to give you up a heads-up on

that.

Mr. Mangan and Ms. Glatfelter have on occasion, and we're

grateful for this, given us clues with references to a trial

within a trial and a conspiracy within a conspiracy.

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case: 1:18-cr-00043-TSB Doc #: 83 Filed: 01/27/20 Page: 48 of 56 PAGEID #: 833
 49

MR. MANGAN: I don't think we've used that phrase.

MR. KOHNEN: Well, we found it in the transcripts.

But "intrinsically connected, inextricably intertwined," to us,

all these are pretty sophisticated buzzwords for 404(b) and

non-404(b). In fact, in June after we heard these phrases a

couple times, we started our research and we realized that this

is -- we're going to have a tiger by the tail here. There's

going to be a lot of argument over whether something is

intrinsic, which is -- by its nature it can't be 404(b), or

extrinsic, for example. And that's sort of the master rubric

under which the Court is going to be asked to decide some of

these things.

It's a really important problem or important issue to at

least get everybody on the same page on pretrial, because when

you think about it, if we haven't settled this, then the first

time we trot up to the bench and ask the Court to decide what's

relevant or irrelevant even under 403, you're going to -- I'll

be presumptuous here -- but you're going to wish that we'd all

educated ourselves together on this subject.

We need -- what we're really going to ask for, then, is not

just disclosure of 404(b) evidence but identification and

disclosure of non-404(b) intrinsic stuff that we're going to

fight over. I know that's a little bit unique and it would be

a little bit unique request of the government, but I think it's

the only way. And we can talk with these guys about this

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case: 1:18-cr-00043-TSB Doc #: 83 Filed: 01/27/20 Page: 49 of 56 PAGEID #: 834
 50

offline, but I just want to give the Court a clue.

The other thing that's unique to this case that is starting

to rear its ugly head in the pleadings, as you've seen, is the

Rule of Specialty. This could become a complicated problem, or

it could remain a simple issue. We're not sure. But as you

probably have thought about, at least I have a lot, the Rule of

Specialty comes into play going all the way back to when the

government presented this case to the grand jury, because it

was the Indictment that the grand jury returned that they

submitted to authorities in Europe in order to get the --

THE COURT: Extradition? 

MR. KOHNEN: -- extradition approved. Now, the Rule

of Specialty sets tight limits on what can be done with that

case and its breadth, frankly, going forward.

So this may present a unique problem that we may have to

raise with the Court as well. And I just want to -- I'm not

here to argue. I'm just here to inform.

xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx, we get worried

about how much of this was the grand jury made aware of, how

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case: 1:18-cr-00043-TSB Doc #: 83 Filed: 01/27/20 Page: 50 of 56 PAGEID #: 835
 51

much of this was the separate sovereign from which he was

extradited made aware of, how much of this is admissible.

I will tell you that our preliminary research says that --

and full disclosure -- there's a split in circuits about

whether a defendant can even raise the Rule of Specialty,

whether he or she has standing to do so. And the Sixth Circuit

hasn't really decided. 

But these are things down the road that I just wanted to

start the wheels turning on here in chambers.

THE COURT: I appreciate the two heads-up, or maybe --

yeah.

Did you want anything further today? Did you want to

respond to the two heads-up, Ms. Frankian?

THE LAW CLERK: No, Judge. I mean, the only thing I

was thinking is maybe setting an earlier motion in limine

deadline or maybe breaking out the intrinsic versus extrinsic

for purposes of 404(b), which from my perspective, just an

issue -- I mean, I would think that rather than the government

identifying it, that that would be a subject of a defense

motion in limine. But again, if they're willing to break it

out, I -- just ignore what I said.

MR. MANGAN: I think, Your Honor, at the end of our

motion for bill of particulars we tried to lay out a number of

specific examples that we believe are part of the conspiracy.

We haven't finished it, but I think you'll find our Rule

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case: 1:18-cr-00043-TSB Doc #: 83 Filed: 01/27/20 Page: 51 of 56 PAGEID #: 836
 52

404(b) disclosure will look very similar in terms of us saying

we believe this is direct evidence of the conspiracy; however,

in an abundance of caution, if the Court rules otherwise, we

believe it is admissible under 404(b) for this reason.

So in order for us to sort of cover both, we'll probably

list a lot of the same, same items that have already been

identified both in our reply as well as in our discovery.

So I don't think -- I think we'll all know, sort of, what

the list of items are. How you want to kind of rule on them

pretrial is maybe another question.

THE COURT: Very well. Well, the calendar calls for

your motion by February 24, and your response and reply is set

forth as well.

THE LAW CLERK: They would just give notice and

then --

THE COURT: Notice.

THE LAW CLERK: Right.

THE COURT: Opposition by March 16.

THE LAW CLERK: Right.

THE COURT: Reply by April 13.

THE LAW CLERK: Uh-huh.

THE COURT: And then it's before us. You pointed that

out a while ago.

Well, we'll brace ourselves for continuing incoming matters

of concern, and we will be responsive. Is there more we ought

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case: 1:18-cr-00043-TSB Doc #: 83 Filed: 01/27/20 Page: 52 of 56 PAGEID #: 837
 53

to discuss today before we adjourn?

On the calendar, we're getting ready to docket it?

THE LAW CLERK: Yes, unless we need to make any

changes just based on the way it's been developing.

MR. MANGAN: We don't have any on our end.

MS. CORS: I don't think we have anything.

MR. KOHNEN: I don't think we do.

THE COURT: Very well.

Anything further on behalf of the government?

MR. MANGAN: No, Your Honor. I think there's an

Addendum B that the defense is going to submit for the

protective order related to their translator. We had sent them

an edit to it, and I think with that edit, I think we've got

something agreed. 

Is that correct?

MS. CORS: Correct.

THE COURT: Good.

MR. MANGAN: So just as a heads-up, that will be

coming your way.

THE COURT: Thank you.

MR. MANGAN: Did you have anything else?

MS. GLATFELTER: No.

THE COURT: Anything further from the defense?

MR. KOHNEN: No. Thank you, Judge.

MS. CORS: No.

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case: 1:18-cr-00043-TSB Doc #: 83 Filed: 01/27/20 Page: 53 of 56 PAGEID #: 838
 54

THE COURT: It's been a high honor and great

privilege, and you're excused. We'll go off the record. 

Yes?

MS. CORS: Thank you.

THE LAW CLERK: Sorry. Do we want --

THE COURT: Back on the record.

THE LAW CLERK: Do we want to set another status

conference, and do you want to just reiterate an ends of

justice finding.

THE COURT: I'll reiterate the ends of justice finding

that, given the complexity of the case and the need for

adequate time to review discovery and prepare, consider motion

practice, the Court finds that the case is not able to be tried

within 70 days, and, in fact, the time running from now until

the new trial date, the time is tolled pursuant to the ends of

justice, all in an effort to avoid a miscarriage of justice.

What was the other item?

THE LAW CLERK: Do we want to set another date?

THE COURT: Status. Can you and I just discuss that

offline to figure out what's coming and set a status?

THE LAW CLERK: Sure.

THE COURT: Or do you want to do it now?

THE LAW CLERK: No, that's fine. 

THE COURT: When do you guys want to get together

again? When the Court's ready?

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case: 1:18-cr-00043-TSB Doc #: 83 Filed: 01/27/20 Page: 54 of 56 PAGEID #: 839
 55

MS. GLATFELTER: (Nods head up and down.)

MR. MANGAN: That would be fine with us.

THE LAW CLERK: Sometime after 30 days, so after

you've conferred about the --

MR. MANGAN: Give you an update on the --

THE LAW CLERK: Right.

MR. MANGAN: Sure.

THE COURT: So we'll get an update probably by e-mail,

both sides, within 30 days on those issues, and then we'll

figure out when the next status report really is required,

because we'll be buried in your motions.

MS. CORS: Yeah. We may want to set that status after

the 404 briefing is complete. I forget what that final date

was.

THE COURT: That was what I was wondering. I think

it's --

THE LAW CLERK: April 13th. It says the reply is due

April 13th on the 404(b).

THE COURT: So the suggestion is we wait until that's

come in for a status. 

Well, we're going to hear a status within 30 days on the

stuff we have discussed. We'll set it for status conference

and update that's workable for you thereafter, probably not

before the 404(b) stuff ripens.

Okay. You're free to go. Thank you. We're adjourned.

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case: 1:18-cr-00043-TSB Doc #: 83 Filed: 01/27/20 Page: 55 of 56 PAGEID #: 840
 56

MR. KOHNEN: Thank you.

MS. CORS: Thank you, Judge.

(Proceedings concluded at 11:22 AM.)

- - - 

C E R T I F I C A T E 

I, Luke T. Lavin, RDR, CRR, the undersigned, certify 

that the foregoing is a true and correct transcript from the 

record of proceedings in the above-entitled matter and 

incorporates the redactions ordered by the Court. Redacted 

characters appear as an "x" in the transcript. 

 s/Luke T. Lavin 

Luke T. Lavin 

 Official Court Reporter 

- - - 

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case: 1:18-cr-00043-TSB Doc #: 83 Filed: 01/27/20 Page: 56 of 56 PAGEID #: 841