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 this unsealed opinion, the court rejected defendant-Xu’s arguments that counts of the indictment in this espionage and trade secrets case should have been dismissed as “duplicitous.” It 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 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. On appeal, he sought to have the judgment vacated and his case remanded to the district court for a new trial. He contended the district court should have dismissed Counts 1 and 2 in the indictment as duplicitous because they “each charged more than one crime rather than a single overarching conspiracy.” However, the court held that a “conspiracy that alleges ‘one overall agreement among the various parties to perform different functions in order to carry out the objectives of the conspiracy’ is not duplicitous as ‘the agreement among all the parties constitutes a single conspiracy.’” It found that while “the alleged overt acts spanned several years and were directed toward three different entities (Honeywell, Safran, and Boeing), the indictment ties the allegations together through its assertion that the acts were undertaken in furtherance of a common, overarching agreement among the conspirators—to steal aviation-related trade secrets.” The court also rejected Xu’s argument that the district court should have prevented an expert witness (O) from “opining as to Xu’s intent to obtain trade secrets.” The court found that “the context of [O’s] testimony makes it clear that he did not opine on whether Xu possessed the requisite intent to steal trade secrets. Rather, [O], as a former intelligence officer, explained how Xu’s actions . . . were ‘consistent with,’ ‘typical of,’ and ‘indicative of’ a covert intelligence-gathering operation based on common tradecraft principles and techniques.” Further, even if the court were to find any error in admitting O’s testimony, the district “court’s jury instructions were sufficient to cure” it. Finally, it held that Xu’s sentence was both procedurally and substantively reasonable. Affirmed.