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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF VIRGINIA

NORFOLK DIVISION

UNITED STATES OF AMERICA,

v. Case Number: 2:08cr194

SHU QUAN-SHENG,

Defendant.

DEFENDANT’S MOTION, AND MEMORANDUM OF POINTS AND AUTHORITIES IN

SUPPORT OF MOTION FOR EARLY TERMINATION OF SUPERVISED RELEASE

INTRODUCTION

In November 17, 2008 the Defendant, Dr. Shu Quan-Sheng pled guilty to counts

1, 2 and 3 of a criminal information. Count one charged him with violation of 22 U.S.C.

Section 2778 (Export of Defense Service Without a License), count two charged

violation of 22 U.S.C. Section 2778 (Export of Defense Article Without a License), count

three charged violation of title 15 U.S.C. Section 78dd-1 (Bribery of Foreign Official). On

April 9, 2009, he was sentenced to a term of fifty-one (51) months incarceration as to

each count with the sentences to run concurrently. This sentence was to be followed by

a two year term of supervised release.

The Bureau of Prisons designated him as a “low” security inmate and he served

the majority of his term of incarceration at the FCI Bastrop, Texas.

In August, 2012 he was transferred to a halfway house in Fort Worth, Texas. On

February 15, 2013, Dr. Shu Quan-Sheng was released from BOP custody having

completed his sentence, and commenced his term of supervised release. He has now

completed one year, of a two year term of supervised release.

Case 2:08-cr-00194-HCM-TEM Document 58 Filed 01/28/14 of 10 PageID# 242

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Based on his successful performance on supervised release and the additional

factors noted herein, Dr. Shu Quan-Sheng hereby moves the Court for entry of an order

terminating the remainder of his term of supervised release. The U.S. Probation Officer

does not oppose this request.

THE LEGAL STANDARD

Under 18 U.S.C. Section 3583(e), the Court has authority to grant early

termination of a previously imposed term of supervised release. Section 3583(e)(1)

provides:

(e) Modification of conditions or revocation. The court may, after considering the

factors set forth in 18 U.S.C. Section 3553(a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D), (a)(4),

(a)(5), (a)(6), and (a)(7).

(1) terminate a term of supervised release and discharge the defendant

released at any time after the expiration of one year of supervised release, pursuant to

the provisions of the Federal Rules of Criminal Procedure relating to the modification of

probation, if it is satisfied that such action is warranted by the conduct of the defendant

released and the interests of justice.

18 U.S.C. Section 3583(e)(1); see also Fed. R. Crim. Procedure 32.1(c)(1), (2)(B) & (C)

(providing for hearings for modification of supervised release, unless the result is

favorable to the person supervised and the government does not object after notice).

To be eligible for termination of supervised release the defendant must meet a

two prong test establishing that termination is warranted by (1) “the conduct of the

defendant” ; and (2) “the interest of justice.” 18 U.S.C. Section 3583(e)(1).

The factors to be considered by the Court for early termination under Section

3583(e)(1) mirror the sentencing factors in Section 3553(a), with one exception, 18

U.S.C. Section 3553(a)2(A) is excluded. Section 3553(a)(2)(A) is a sentencing factor

intended to “reflect the seriousness of the offense, to promote respect for the law, and

to provide just punishment for the offense;”. The exclusion of this subsection as a factor

for early termination indicates that supervised release is not intended to be punishment,


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and retribution as a factor is eliminated. The terms of incarceration and halfway house

satisfy the retributive goal of the sentencing scheme.

The U.S. Supreme Court interpreted the purpose of supervised release:

Congress intended supervised release to assist individuals in their transition to

community life. Supervised release fulfills rehabilitative ends distinct from those served

by incarceration. See Sec. 3553(a)(2)(D); U.S. Sentencing Commission, Guidelines

Manual Section 5D1.3(c),(d),(e)(Nov. 1998) see also S. Rep No. 98-225, p.124(1983)

declaring that the primary goal of supervised release is to ease the defendant’s

transition into the community after the service of a long prison term for a particularly

serious offense, or to provide rehabilitation to a defendant who has spent a fairly short

period in prison for punishment or other purposes but still needs supervision and

training programs after release... Johnson v. US, 529 US 694 (2000).

Although 18 U.S.C. Section 3583(e)(1) refers the Court generally to a

consideration of the Section 3553(a) sentencing factors when adjudicating an early

termination motion, a more perceptive and pragmatic list of criteria to be applied by the

Court in the context of an early termination proceeding is available and comports with

the statutory requirements of Section 3553(a). With input from Probation Officers, the

Judicial Conference Committee on Criminal Law, chaired by Chief Judge William

Wilkins (4th Cir) in March, 2003 promulgated a list of criteria for the court’s consideration

in the context of early termination of supervised release. The criteria promulgated by the

committee are:

1. Stable community reintegration (e.g. residence, family, employment);

2. Progressive strides toward supervision objectives and compliance with all

conditions of supervision;

3. No aggravated role in the offense of conviction, particularly large drug or fraud

offenses;

4. No history of violence (e.g. sexually assaultive, predatory behavior, or

domestic violence);

5. No recent arrests or convictions (including unresolved pending charges) or

ongoing uninterrupted patterns of criminal conduct;

6. No recent evidence of alcohol or drug abuse;

7. No recent psychiatric episodes;


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8. No identifiable risk to the safety of any identifiable victim; and

9. No identifiable risk to public safety based on the Risk Prediction Index.

(See http://www.uscourts.gov/ttb/mar04ttb/rewarded/index.html)

Chief Judge Wilkins asserted that “The committee believes that when the

conditions of supervision imposed have been met, and the offender has successfully

reintegrated into the community and does not pose a foreseeable risk to public safety in

general or to any individual third party, the probation officer should request the court to

consider early termination.”

ARGUMENT I

THE DEFENDANT MEETS THE CRITERIA FOR EARLY TERMINATION

PROMULGATED BY THE JUDICIAL CONFERENCE COMMITTEE ON CRIMINAL

LAW AND IS DESERVING OF EARLY TERMINATION

Since his release from the BOP low facility at Bastrop, Tex. in August, 2012, Dr.

Shu Quan-Sheng has successfully reintegrated into his community as a grandparent,

parent and husband. Now retired at age 73 he maintains a stable residence with his

wife, a significant role as a grandparent and tutor to his grandchildren, as well as a

loving and caring father and husband.

He has complied with all his conditions of supervision and met all his supervision

objectives. As a result of this, he was placed on “low risk caseload” for the remainder of

his supervised release. (Exh. A)

Dr. Shu Quan-Sheng was not given any aggravated role adjustment in the

offense of conviction and has no history of violence.

He has no recent arrests or convictions nor ongoing pattern of criminal conduct.

He has no recent nor past history of alcohol or drug abuse, nor any history of

psychiatric episodes.


http://www.uscourts.gov/ttb/mar04ttb/rewarded/index.html

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He presents no identifiable risk to the safety of any identifiable victim, nor to

public safety based on the Risk Prediction Index.

He has served one-half of his term of supervised release without the slightest of

incident, and meets all the criteria promulgated by the Judicial Conference Committee

on Criminal Law.

Dr. Shu Quan-Sheng is a 73 year old retiree who has successfully reintegrated

into his community. Prior to this conviction he had no history of criminal behavior, and

his sole incident of criminal behavior can best be described as an “aberration.” He is

clearly deserving of the grant of early termination of his term of supervised release.

ARGUMENT II

THE DEFENDANT’S HISTORY OF COMPLIANCE AND NEED FOR MINIMAL

SUPERVISION REFLECTS THE TYPE OF CONDUCT CALLED FOR BY SECTION

3583(e)(1)

The first prong of the two prong test for early termination under 3583(e)(1) calls

for the Court to determine whether “the conduct of the defendant” is such as to warrant

a grant of relief.

Dr. Shu is a citizen of the United States having been naturalized on May 13,

1998. He received his BS degree in 1963 and his PhD in physics in 1970. Virtually his

entire working life was as a college professor and researcher. His last employment

before entering the private sector was until 1996 at Jefferson Laboratory, a Department

of Energy lab. His sole sojourn into the private sector ended with his arrest in 2008. He

is now retired and living with his family in Texas. He presents an atypical profile for an

individual on supervised release.

Shortly after his arrest on September 24, 2008, Dr. Shu commenced negotiations

and cooperation with the Government resulting in the Government’s withdrawal of its


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motion for detention and on October 8, 2008, he was released on $100,000 bond. At all

times he was compliant with his conditions of release, appearing when and as required

by the Government and this Court.

On November 17, 2008, less than 60 days after his arrest he appeared before

this Court, waived indictment and entered a guilty plea to all three counts of a criminal

information. Without meaning to in any way malign or disparage the exceptional work

done by the Government in this case, the expediency of Dr. Shu’s guilty plea is due at

least in part to the sense of remorse he felt over his aberrant criminal conduct. Despite

his guilty plea this Court continued his release on bond. While awaiting sentencing, he

continued to comply with all conditions imposed upon him.

Although the details of Dr. Shu’s assistance will not be delved into here, it is

sufficient to note that the Government was satisfied with the breadth and veracity of his

assistance and consented to the grant of an additional point for acceptance of

responsibility.

On April 7, 2009 he once again appeared before this Court and was sentenced to

three concurrent terms of incarceration of 51 months. This Court continued him on bond

and permitted him to self-surrender to the Bureau of Prisons. On June 22, 2009 he self-

surrendered in compliance with this Court’s order.

He served the majority of his sentence at the Bureau of Prisons “low” facility at

Bastrop, Texas. While there he was a model prisoner and taught an industrial insulation

course and tutored Chinese to other inmates. His entire term of incarceration was

served without any disciplinary incidents.


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In August, 2012 he was transferred to a half-way house in Ft. Worth, Texas from

which he was released to home confinement in November, 2012, once again without

incident.

On February 15, 2013 he commenced his two year term of supervised release.

On April 30, 2013 he was placed on “low risk caseload” by the U.S. Office of

Probation and Pretrial Services. This is a status reserved for those individuals who have

exhibited a positive and compliant adjustment to supervision requirements. (Exh. A).

Dr. Shu has completed the payment in full of restitution as ordered by this Court.

He has spent his post release time gardening and tutoring his college bound

granddaughters in math and science and developing a graduation endorsement plan for

them.

He has at all times been compliant with the rules and requirements of his

supervised release, once again reaffirming his penchant for compliance, a lack of need

for supervision, and evincing the sort of conduct called for by the first prong of

3583(e)(1).

ARGUMENT III

THE INTEREST OF JUSTICE WILL BE SERVED BY THE EARLY TERMINATION OF

THE DEFENDANT’S TERM OF SUPERVISED RELEASE

The second prong for early termination under Section 3583(e)(1) calls for the

Court to determine whether “the interest of justice” would be served by the early

termination of supervised release.

Dr. Shu is now a 73 year old retiree. He resides with his wife in Texas as well as

his daughter and granddaughters. He dedicated the vast majority of his adult life to the


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education of college students and research. His primary activity now is the tutoring and

preparation of his granddaughters for admission to college. His eldest granddaughter is

a straight “A” student who hopes to major in Bio-Engineering in college. He maintains

cordial relations with former colleagues who are now professors at Cornell, Stanford,

MIT and University of Washington. These colleagues can help to provide guidance and

mentoring at the college level for his granddaughters. He is in charge of the girls daily

activities including tutoring them in math and science, transportation to and from school

as well as after- school activities which include national math and science competitions

and musical performances. (Exh. B)

His plan is to continue to tutor the girls, travel on campus visits with them and

place them with his former colleagues for mentoring.

His older brother, professor Hau Wu Shu resides in New York, is 83 yrs. old and

in poor health. Dr. Shu would like to make extended visits to see him in New York.

Dr. Shu would also like to petition the State of Texas for reinstatement of his right

to vote, which right he’d hopefully exercise in the November, 2014 elections.

The life expectancy for the average American male is 75 years. (Center for

Disease Control and Prevention: Deaths: Final Data for 2006.) Based on this life

expectancy estimate, Dr. Shu can be expected to live approximately two more years.

Such a short life expectancy means that he may not be around to witness his

granddaughters graduation from high school, shepherd them through the college

admissions process, spend time in New York with his older brother, nor ever vote again

in a national election. Though these may seem like inconsequential events to others,

they form the essence of the remainder of Dr. Shu’s life. He feels the utmost remorse


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over his criminal conduct and assures the Court that such behavior would never be

repeated.

CONCLUSION

The combination of Dr. Shu’s exemplary compliant conduct after arrest, remorse,

advanced age and the interest of justice, militate for the favorable exercise of discretion

by this Court, in granting the defendant’s motion for early termination of supervised

release pursuant to Section 3583(e)(1).

Accordingly, he respectfully moves this Court for early termination of the

remainder of his term of supervised release.

Respectfully submitted,

SHU-QUAN-SHENG

By Counsel

/s/ James O. Broccoletti, Esquire

VSB# 17869 Counsel for Shu-Quan-Sheng ZOBY & BROCCOLETTI, P.C.

6663 Stoney Point South Norfolk, VA 23502 (757) 466-0750 (757) 466-5026

[email protected]

CERTIFICATE OF SERVICE

I hereby certify that on the 28th day of January, 2014, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system, which will then send a notification of such filing (NEF) to the following:

Alan M. Salsbury, Esquire Assistant U. S. Attorney


mailto:[email protected]

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Office of the U. S. Attorney 101 W. Main Street Suite 8000 Norfolk, VA 23510

/s/ James O. Broccoletti, Esquire

VSB# 17869 Counsel for Shu-Quan-Sheng ZOBY & BROCCOLETTI, P.C.

6663 Stoney Point South Norfolk, VA 23502 (757) 466-0750 (757) 466-5026

[email protected]


mailto:[email protected]

Case 2:08-cr-00194-HCM-TEM Document 58-1 Filed 01/28/14 Page 1 of 2 PageID# 252

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