Whether counts of an indictment were “duplicitous”; United States v Campbell; Expert testimony; FRE 704(b); Jury instructions; Kendel v Local 17-A United Food & Commercial Workers (Unpub 6th Cir); Sentencing; Procedural reasonableness; Intended-loss calculation; United States v You; Substantive reasonableness; Disparity

In an amended opinion (see eJournal # 82073 in the 8/20/2024 edition for the original opinion), the court again rejected defendant-Xu’s arguments that counts of the indictment in this espionage and trade secrets case should have been dismissed as “duplicitous.” It again found that the indictment counts at issue each alleged “a single conspiracy based on an overarching agreement between Xu and his co-conspirators.” It also again rejected his challenges to the admission of expert testimony and to his sentence. Xu, a Chinese citizen and member of China’s Ministry of State Security, was convicted of conspiracy to commit economic espionage and conspiracy to steal trade secrets from aviation companies. He was also convicted of attempted economic espionage by theft or fraud and attempted theft of technology. He was sentenced to a combined 240 months. The only change in the court’s amended opinion was in its discussion of his procedural reasonableness challenge to his sentence. Xu contended “that by relying on Application Note 3(A) under” Guidelines § 2B1.1, “which includes ‘intended loss’ in the definition of ‘determination of loss,’ the district court erred in applying a 22-level increase to his base offense level that resulted in a” 210 to 262-month Guidelines range. He acknowledged in his reply brief that the court’s “published holding in You—which was issued after Xu filed his opening appellate brief—forecloses this argument” and the court agreed. In You, it “held that the ‘character and context’ of the Commission’s reading entitled it to deference.” While Xu argued that case was wrongly decided, “given You’s binding effect—and Xu’s acknowledgment in” this regard—the court did not reach the merits. It again affirmed.