Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Xu

United States District Court, D. Delaware

May 30, 2018




         At Wilmington this 30th day of May, 2018, having considered Defendant Jerry Jindong Xu's ("Defendant" or "Xu") Motion to Reopen Issue of Bail (D.I. 73) ("Bail Motion") and Motion for CM/ECF Login (D.I. 79) ("Motion for Electronic Filing"), IT IS HEREBY ORDERED that Xu's Bail Motion (D.I. 73) is DENIED, and Xu's Motion for Electronic Filing (D.I. 79) is DENIED WITHOUT PREJUDICE.

         1. Xu, a Canadian citizen, is charged with conspiracy to commit theft of trade secrets in violation of 18 U.S.C. §§ 1832(a)(2) and (a)(5). (See D.I. 5 ¶¶ 8, 14-15) On August 25, 2017, a court in the Northern District of New York held a bail hearing and ordered that Xu be detained. (See D.I. 15) On October 11, 2017, having given the parties an opportunity to address concerns related to proposed conditions of release, Judge Thynge ordered that Xu remain detained consistent with the Northern District of New York detention order. On December 1, 2017, the Court held a hearing where it again considered the issue of Defendant's pretrial release status, and, after additional proceedings on December 18, 2017, the Court ordered that Xu remain detained. (See D.I. 70, 71, 45)

         2. Bail. On April 18, 2018, Xu filed a motion in open court to reopen the issue of his detention under both 18 U.S.C. § 3142(f) and the Due Process Clause. (See D.I. 73) On April 25, 2018, the government responded. (See D.I. 79) Xu filed his reply on May 18, 2018. (See D.I. 83)

         3. Under § 3142(f), a judicial officer may reopen a detention hearing "at any time before trial if the judicial officer finds that information exists that was not known to the movant at the time of the hearing and that has a material bearing on the issue whether there are conditions of release that will reasonably assure the appearance of the person as required and the safety of any other person and the community." To warrant reopening, the information must be (i) "not known" at the time of the earlier hearing and (ii) "material" to the detention analysis. Xu has not offered any information that meets these criteria.

         4. Xu asserts that two of his (three) previously proposed third-party custodians ("TPCs") "ha[ve] had an increase in funds" and are willing to post a portion of their earnings as security for his release. (D.I. 73 at 3) While presumably this is new information, it does not change the Court's view on whether the proposed TPC arrangement would reasonably assure Xu's appearance as required. As the government correctly points out, the Court has never been concerned about the TPCs' finances. (See D.I. 71 ("Tr.") at 32-33) Rather, the Court has been - and remains - uncomfortable with the lack of any prior relationship between the proposed TPCs and Xu. As the Court explained at the December 18, 2018 detention hearing,

[T]his isn't about [the proposed TPCs'] credibility so much as [it is about whether] ... I [can] get reasonably comfortable with a very unusual situation, a situation that many judges who have looked at something similar have said this is not what a third-party custodian is meant to be. There is no relationship whatsoever between any of the third-party custodians being offered and the defendant. There is plainly no moral suasion. . . . [M]aybe in some other case, but I just do not see it here.

(Tr. at 33-34) The proposed TPCs' increased earnings and willingness to post bond do not overcome the lack of moral suasion they would have over Xu or otherwise change the Court's view of the proposed custodial arrangement. Thus, it presents no grounds to reopen the detention hearing.

         5. The case law Xu offers in an attempt to allay the Court's concerns about his proposed custodial arrangement is likewise unhelpful. The cases Xu offers are not new. While they may have been previously unknown to Xu, the cases were all available at the time of his previous bail hearings and were known or should have been known to counsel then representing him. See United States v. Mclntyre, 2018 WL 385034, at *3 (D.N.J. Jan. 10, 2018) (holding cases submitted by defendant were not unknown at time of earlier bail hearings, despite intervening changes in counsel); see also United States v. Dillon, 938 F.2d 1412, 1415 (1st Cir. 1991) (discussing district court rejection of defendants' newly submitted letters from family because information contained in letters was available at time of bail hearing). However, even considering the substance of those cases, they do change the Court's risk of flight analysis as to Xu. The circumstances present in the cases cited by Xu differ materially from Xu's proposed custodial arrangement. See, e.g., United States v. Kami, 298 F.Supp.2d 129 (D.D.C. 2015) (granting release of foreign defendant to staffed shelter, where third-party custodian committed to having defendant monitored 24-7, and another party posted $75, 000 bond for defendant, in addition to defendant's bond). Thus, they not persuade the Court that the proposed custodial arrangement here - releasing Xu, who lacks ties to this District and has substantial ties abroad, into the custody of a combination of three individuals who were previously unknown to Xu - is appropriate.

         6. The issues presented by Xu's pending motion to dismiss - and specifically the alleged lack of notice he received regarding the criminality of his alleged conduct - are not a reason to revisit Xu's detention. Xu's motion to dismiss does not relate to the factors outlined in § 3142(g), and thus does not change the Court's view as to whether any condition or combination of conditions exists that can reasonably assure Xu's appearance as required.

         7. Finally, the newly proposed TPC and conditions of release that Xu now proposes do not alter the Court's assessment of the risk of flight. It remains unclear - as it was at the December 18 detention hearing - who Xu is proposing to serve as his TPC and what each party is willing to undertake in connection with that responsibility. (See D.I. 73 at 4 ("With three alternate TPCs . . . ."); see also Tr. at 33 ("There has been some uncertainty at least on my part as to who is being proposed to undertake the very substantial legal obligation of being a third-party custodian.")) Accordingly, the Court continues to be persuaded that Xu should remain detained under these highly unusual circumstances. Nor do the additional conditions Xu proposes (with or without the earlier proposed conditions) constitute a combination of conditions that can reasonably assure Xu's appearance.[1] As the Court explained in December,

I'm persuaded also . . . that there are no conditions that I could impose that would reasonably assure me that [Xu] would not flee to Canada to be with his family, to be where he has established his life, to be in a place that. . . may or may not consider what he allegedly did to be criminal conduct, and to be in a place that it remains undisputed . . . will take some substantial amount of time for us to get him back here were he to run to Canada.
I remain again concerned that even though the defendant either has no passport or would give us his passport that given his experience crossing the Canadian border, he would find a way, if he were tempted to do so, to get there.

(Tr. at 31-32) The Court continues to believe that this is the case, even with the additional or alternate TPC ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.