Harvard’s Kseniia Petrova was back in court Wednesday for a probable cause hearing to determine whether a criminal complaint against her should be dismissed.
The government’s one witness at the hearing, special agent Brian Goldsworthy, was unable to explain the meaning of “biological material” despite using it in his sworn affidavit supporting the criminal complaint. He was also unable to explain the meaning of “merchandise” when the crime Petrova is charged with, smuggling under 18 USC §545, criminalizes the introduction into the country of “any merchandise which should have been invoiced.”
Judge Judith G. Dein did not rule during the hearing, and gave government attorneys until June 25 to submit a written brief, with a response from Petrova’s attorneys by July 2. Because Petrova was charged through a written complaint by prosecutors and not through a grand jury indictment, the government has a limited time to obtain a grand jury indictment – 30 days, although the time for transportation is excluded, as is the time to resolve pretrial motions from the defense. Excluding 10 days (the maximum allowed) for transport and eight days for the defense’s June 4 motion to expedite her transfer, the 30-day clock is now set to expire July 1.
Cambridge Day obtained the audio recording of the hearing and is making it available: https://youtu.be/8ZoQ_dgNHto
Petrova is a Russian-born computational biomedical researcher in Marc Kirschner’s Harvard medical school lab who was detained in February by customs officials at Logan Airport as she returned from France. Officials, saying she failed to declare microscope slides and samples in vials of clawed xenopus frog embryos, canceled her visa and detained her in immigration custody for three months – briefly in Vermont at first, and mostly in Louisiana. Hours after a favorable hearing in Vermont in May, prosecutors unsealed criminal charges against her and took her into criminal custody for several weeks while she was moved to Massachusetts. She appeared before the judge on June 12 and was ordered released on pretrial probation, with the probable cause hearing set for Wednesday.
Probable cause hearings in criminal matters are frequently waived by defendants because it is always an uphill battle to show the government lacked probable cause to bring criminal charges – and if there is any doubt, the judge will let the case go forward toward trial.
“Probable cause is a very low bar,” defense attorney William Fick told magistrate judge Dein; the government has not met its burden of proof, he said.
“The question is whether there is probable cause to believe there was smuggling of merchandise not-invoiced,” Fick said. But “the investigator who swore out the affidavit can’t tell us what it means, as opposed to some general understanding that would encompass the leather in my shoe. The agent swearing out the affidavit can’t define ‘merchandise.’ The statute covers merchandise not invoiced, not any item not declared.”
Goldsworthy, a special agent with the Homeland Security Investigations division of Immigration and Customs Enforcement, was the focus of the nearly two-hour hearing. Prosecutor David Holcomb walked Goldsworthy through the affidavit he swore out on May 12, as well as a “record of sworn statement in proceedings” that appeared to be a transcript of Petrova’s customs interview Feb. 16 – except it was not a true transcript and reflected some things Petrova did not actually say, Holcomb testified according to his review review of an audio-video recording of the interview.
Direct examination by the prosecution
Holcomb began quizzing Goldsworthy about his training and the general customs process at Logan Airport. Goldsworthy, an 18-year veteran of the agency, did not have firsthand knowledge of Petrova’s arrival, but had reviewed records and recordings and spoke with officers in preparing his affidavit.
Goldsworthy said that Petrova told the first customs officer she had no food, but was actually carrying beef and fruit, which caused a dog to flag her checked bag. He said Petrova was paged on the airport loudspeaker and did not respond, so a customs agent found her at the luggage carousel based on her photograph.
Holcomb displayed photographs of Petrova’s vials and slides and scientific packing materials and asked Goldsworthy to describe what was being shown. “It’s frog embryos,” Goldsworthy said, clearly at a loss to describe what was on the screen. (The picture of vials on the screen made their contents neither visible nor identifiable.)
Holcomb showed a text-messaging chat between Petrova and William Trim, her colleague and housemate, in which Trim says, “if you bring samples or antibody back, make sure you get the permission etc. Like that link I sent to leon-/group chat about frog embryos because TSA went through my bags at customs in Boston.” The “Leon” referred to is Leon Peshkin, Petrova’s Harvard lab supervisor.
On cross-examination later, Fick asked if Goldsworthy knew that in that group chat, members of the lab discussed frog embryos and concluded that they were not required to declare them. Goldsworthy said he didn’t have access to the full chat and didn’t know that.
Holcomb also showed a chat from Petrova’s phone in Russian with Peshkin. Goldsworthy said he and the customs officer at Logan used Google Translate to translate the chat into English, and that neither speak or read Russian. They were aware Google Translate is not perfectly reliable, Goldsworthy said.
Peshkin asked, translated, “What is your plan to pass the U.S. customs with samples? This is the most delicate place of the trajectory.”
Petrova responded, “No plan yet 😊. I won’t be able to swallow them 😊.”
But the 😊 emoji appeared as “😊” in the transcript, and Holcomb dismissed that as “a bunch of numbers … I think it might be a mistake.”
On cross examination, Fick explained the numbers resulted from copy/pasting emoji and asked Goldsworthy if he understood Petrova was joking about swallowing the samples: “Plainly, that’s a joke?”
Goldsworthy was silent.
Fick referred to the pictures, which showed a several boxes worth of samples: “We’ve seen the pictures, you couldn’t swallow that?”
“Correct,” Goldsworthy said.
In Holcomb’s direct examination, which lasted about 40 minutes, Goldsworthy also testified that the samples were sent to Fort Detrick in Maryland for analysis, and that even if Petrova had declared the samples, she would not have been allowed to have left Logan Airport with them.
Cross-examination by the defense
Fick began cross-examination at 4:15 p.m. After establishing Goldsworthy lacked firsthand knowledge of the events at Logan and prepared no reports after talking with others, Fick asked how Petrova’s case was referred to Homeland Security Investigations.
Goldsworthy testified the referral came from “headquarters,” and not from Customs and Border Protection, two and a half months after the events. “I wouldn’t say it was very unusual to get referrals in this manner,” he said.
“What are biological products,” Fick asked.
“I’m not sure,” Goldsworthy said.
“You’ve been doing this for 18 years?” Fick asked.
“I couldn’t define it for you,” Goldsworthy said. “What I was told was these were frog embryos … biological embryos.”
“What is your understanding of what constitutes a biological product?” Fick asked.
“Embryos?” Goldsworthy suggested. “What’s often encountered is plasmids. Living things, plants.”
“How is a traveler supposed to know, if you can’t answer the question?” Fick asked.
“The website,” Goldsworthy responded.
“Are you aware in the Code of Federal Regulations there is a definition of biological products?” Fick asked.
“I’ve heard there is one, not related to this?” Goldsworthy responded.
“The term biological products, also referred to in this subchapter as biologics, biologicals or products, shall mean all viruses, serums, toxins (excluding substances that are selectively toxic to microorganisms, e.g., antibiotics),” Fick read from the regulation.
Holcomb interrupted with an objection, suggesting the definition may not be right.
(The prosecutors later tried to argue that the definition of “biological products” in 9 CFR 101.2 was irrelevant, seemingly ignoring the fact that Goldsworthy’s affidavit refers to 9 CFR 104 about “Permits for Biological Products” and §101 is the “definitions” section that explains the words in §104.)
“Are you aware of any other definition?” Fick asked.
Holcomb interrupted again: “He’s not a lawyer.”
“He can answer,” Dein ordered.
“Only something similar to this, a CFR related to the previous section,” Goldsworthy said.
“I understand you’re not a lawyer,” Fick said. “I’m trying to understand, legally, what you believe to be a biological product.”
Goldsworthy: “The frog embryos.”
This continued for some time.
“Do you agree the frog embryos were not alive?” Fick asked.
“I don’t know,” Goldsworthy said.
“You don’t know?” Fick asked, in an incredulous tone of voice.
“I assume,” Goldsworthy said.
“They were in a cooler, I don’t know alive or dead,” Goldsworthy said.
“Are you familiar with the term ‘formalin fixed’?” Fick asked.
“I know the words,” Goldsworthy said.
“Are you aware they are contained in a formaldehyde solution?” Fick asked.
Holcomb objected and was overruled.
“I see tubes with embryos,” Goldsworthy said.
Goldsworthy testified that the scientists at Fort Detrick determined they were “biological.”
“Do you know if they were speaking colloquially or a matter of legal definition?” Fick asked.
Goldsworthy: “It didn’t matter for my purposes.”
Fick responded incredulously: “The legal definition didn’t matter for charging her with a crime?”
Goldsworthy: “It was irrelevant to the smuggling charge.”
Fick then moved on to the merchandise requirement of the smuggling charge: “Did they have commercial value?”
Goldsworthy, “I’m sure they had some value.”
“You have no information on any value?” Fick asked.
“I don’t know,” Goldsworthy said.
“The word ’merchandise’ connotes products by a merchant?” Fick asked.
“It could be anything,” Goldsworthy said.
Fick, again incredulously: “It could be anything?”
Holcomb objected and Dein sustained the objection. Fick moved on.
Fick asked what would happen if he bought a novelty Eiffel Tower magnet at the airport in France and did not declare it.
“There’s an exception based on value,” Goldsworthy said. But for written declarations, not for oral ones, he said.
“So if I don’t make an oral declaration I’ve committed a crime?” Fick asked.
Fick moved on, turning the cross-examination to Petrova’s answers to customs agent questions.
When a traveler arrives at primary customs inspection, Fick said, “sometimes an officer will ask, ‘Anything to declare?’ Sometimes not.”
Goldsworthy confirmed that Petrova was not asked that question.
Petrova was asked where she was coming from, and responded “France.”
Goldsworthy testified that she was asked about any other countries and said no – but Petrova had traveled to countries other than France since she last left the United States.
“‘Any other countries or just France,’ that’s not a complete sentence, is it?” Fick asked.
“That’s what was said,” Goldsworthy responded.
“A direct flight from France, you’re coming from France, right?” Fick said. “The officer did not ask for a list of countries visited since she last left the U.S.?”
“Correct,” Goldsworthy said.
“You’re not suggesting she was lying at Primary when she answered the question about France?” Fick asked.
Holcomb objected, but Dein allowed the question, saying “this witness has indicated on certain occasions the impression was an inaccurate answer” and asked, “Do you think that’s an inaccurate answer?”
“Yes,” Goldsworthy said.
Fick further elicited from Goldsworthy that Petrova’s answer to the question about food items was reported as “inaudible,” despite the quasi-transcript saying otherwise.
Fick also challenged Goldsworthy on the idea that Petrova claimed to a first customs agent she was not carrying biological materials, then admitted to the second that she lied to the first.
“He made a declarative statement in a question, suggesting to Petrova that she had falsely told the officer at primary she didn’t have biological materials,” Fick said.
“One more time,” Goldsworthy pleaded, seeking clarification.
“The assumption embedded in this question – that the officer got Petrova to agree to – is wrong, correct?”
“I think we were discussing biological materials ‘in a broad sense,’” Goldsworthy said.
“But does the law prohibit importation of biological materials ‘in a broad sense,’ or is there a legal definition?” Fick asked
Dein sustained an objection – because witnesses do not testify about the law – and Fick moved on.
After some brief redirect questioning of Goldsworthy by Holcomb, witness testimony finished after an hour and 20 minutes.
Legal argument
In the final 20 minutes of the hearing, both sides presented oral arguments about whether probable cause had been met.
Holcomb said Petrova offered “two simple lies” to customs agents: about carrying food and about traveling anywhere other than France.
“Her conduct showed she intended to bring in [materials] without declaring them,” Holcomb said.
“It’s not Petrova’s job or her colleagues’ to decide if they technically meet the statutory definition” of biological materials, Holcomb said. “If there is one. Which in this case, there is not. It’s CBP’s job to assess. They can only do that if items are declared. She did not declare as required by law. And she also gave a false answer when questioned about it. Here the evidence amply clears the probable-cause bar for the charge in the complaint: smuggling of clawed frog embryos.”
In his portion of the argument, Fick responded that he could count on one hand the number of times a federal judge in this courthouse had denied probable cause to the government, because it was such a low bar. But this case should join them, he said.
“The statute covers merchandise not invoiced, not any item not declared,” Fick said. “Those are different words.”
“Probable cause is a very, very low bar. The government – if they even understand their own theory –” Fick began.
Dein interrupted. “Is it your theory that the materials had to meet the definition of administrative definition of goods?” she asked Fick.
Yes, Fick suggested: “The smuggling statute, there’d be a real void-for-vagueness problem if you expand that,” meaning that the law would be so vague that it could encompass an unreasonably broad range of conduct, and therefore courts should not interpret it in a broad or vague fashion to avoid that problem.
Fick said that what Petrova did was “maybe not the best practice,” but it was “certainly not the specific crime alleged.”
Next steps
The briefs in the case that Dein allowed are due Wednesday and the following Wednesday, around the same time that the Speedy Trial Act requires a grand jury indictment if the case is to continue. The briefs seem intended to allow Dein to understand both sides’ positions on whether the legal definition of “biological” materials matters (and if so, which definition) and whether Petrova’s samples need to qualify as “merchandise,” with value, that should have been invoiced under the smuggling statute.
This post was updated June 25, 2025, to add audio from the hearing.
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