Berklee student from China gets nine months in federal prison for harassing and threatening another student from China over pro-democracy flier

A federal judge today sentenced Xiaolei Wu to nine months in prison for reacting to a flier another Berklee student posted calling for democracy in their homeland by threatening her with death - maybe even by being eaten by a homeless person at South Bay - and by reporting her and her family to Chinese officials, including his mother, a government functionary.

US District Court Judge Denise Casper ordered Wu to spend three years on probation after his term is finished, although he could be deported after he is let out.

A jury in Boston federal court convicted Wu in January on one count of cyberstalking and one count of interstate transmissions of threatening communication for the way he threatened and harassed another Berklee student from China who'd posted a flier posted on Mass. Ave. calling for various freedoms in their dictatorial homeland.

Prosecutors had urged Casper to sentence Wu to 33 months in prison, both to punish him and to send a message to Beijing that the US will not tolerate its interference with rights here. In a sentencing memorandum, they wrote about his treatment of the other student, identified as Miss Zoey:

A 33-month sentence is appropriate in this case for several reasons. First is the nature of the words themselves. They were violent. They employed references to death and the chopping off of hands. These were not mere colloquialisms used in the heat of the moment. They were directly calculated to cause fear. Second, the defendant threatened and harassed Miss Zoey not simply because he disagreed with her views about democracy, freedom, and the PRC. The defendant threatened and harassed Miss Zoey because he wanted to silence her. He has admitted as much. His conduct, therefore, was directed at ensuring that Miss Zoey – and others like her – would be afraid to speak out. In other words, he was carrying out his own personal censorship campaign. Third, as part of the defendant's campaign to silence Miss Zoey, he threatened to report her actions to the PRC government. In a series of posts on October 23, 2022, the defendant stated "I already called the tipoff line in the country, the public security agency will go greet your family." As established at trial, the references to the "tipoff line" and the "public security agency" were references to the Ministry of Public Security ("MPS") or the Ministry of State Security ("MSS"), who investigate political dissidents and those who voice support for democracy. Id. The term "greet" was a reference to beginning an investigation into the political loyalty of Miss Zoey's family, who continued to reside in the PRC. In other words, not content only to make threats of his own, the defendant raised the specter of the PRC government against her. This, again, he did to accomplish his main goal – to make her so afraid that she would never again speak out against the PRC government. Nor did the defendant stop after simply threatening to report Miss Zoey's actions to the PRC government. He followed through with his threat. On October 24, 2022, two hours after the Berklee College police visited him and issued a no contact order, the defendant reported Miss Zoey's actions to his mother, who was a PRC government official.

The campaign reporting seemed to have worked: Prosecutors say Miss Zoey's father begged her to drop the case, and warned her he thought her life was in danger if she did not.

Prosecutors continued:

Although the Defendant himself does not appear to have been specifically directed by the PRC government, he nevertheless enlisted himself as part of the PRC's network of censorship and repression. This repression network often reaches into the United States and targets people of Chinese descent whose family members remain in the PRC.5 It is important that this sentence send a strong message of general deterrence – the United States does not tolerate efforts to suppress a person's First Amendment rights simply because their views are at odds with the PRC government.

Wu's attorneys, however, while acknowledging Wu had done a bad thing, urged Casper to sentence Wu to the time he had already served awaiting trial.

In their own sentencing memorandum, they said Wu was an hard-working jazz musician whose one goal in life was to get into Berklee and that while he did a bad thing, he was more an immature kid thousands of miles away from his previously sheltered life in a strange new world and enraged by the effects of the Covid-19 pandemic, which had taken both of his grandfathers, one just a couple weeks before he saw the poster on Mass. Ave., at a time when protests were happening in China itself over the government's strict lockup procedures.

Mr. Wu came to the United States in August 2021 with a heart and head full of hopes and aspirations. He had finally achieved his dream of attending Berklee College of Music. However, while he was intellectually and musically prepared for what would come, he was unprepared for the shock of living in a very different culture, and emotionally immature after having lived a very sheltered life. Despite these challenges, and despite at times feeling very isolated, he threw himself into music, impressing his professors with his commitment and skill. Mr. Wu's guitar teacher noted that Mr. Wu was "a very good student with a passion for music and wanting to progress as a creative musician." ...

With the loss of his grandfather so fresh, Mr. Wu was both aware of, and upset by, these protests. His grief, his separation from the family he loved and culture in which he grew up, his stress of being in a new and unfamiliar environment, and his immaturity, all converged and resulted in his dysregulated and inappropriate response to seeing COVID protest materials on his campus in Boston. However, when made aware of the wrongfulness of his behavior and asked to stop by school personnel, he did so immediately.

And for somebody whose dream in life was to go to Berklee and then tour the world playing jazz, even a time-served sentence will exact a heavy toll, they wrote:

After this case is over, he will be taken into custody by Immigration and Customs Enforcement and deported. He will never be permitted to re-enter the United States. He likely will be unable ever to travel to numerous other countries, such as Canada, the United Kingdom, and Japan. And for him, devastatingly, after putting his heart and soul into studying and rehearsing for several semesters, he will not be able to return to and complete his degree at Berklee College of Music. He has lost the hope of ever continuing to pursue his dream of learning American jazz and touring the world.

They also objected to the prosecution's proposed sentence, writing that before the trial, they had offered Wu the chance to avoid prison altogether if he pleaded guilty. Wu, his lawyers wrote, should not be punished because he chose to exercise his constitutional right to a trial.