Case 3:18-cr-04683-GPC Document 150 Filed 02/10/20 PageID.1309 Page 1 of 22
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`ROBERT S. BREWER, JR.
`United States Attorney
`MELANIE K. PIERSON
`Assistant U.S. Attorney
`California Bar No. 112520
`Office of the U.S. Attorney
`880 Front Street, Room 6293
`San Diego, CA 92101
`Tel: (619) 546-7976
`Fax: (619) 546-0420
`Email: Melanie.Pierson@usdoj.gov
`
`Attorneys for the United States
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`UNITED STATES DISTRICT COURT
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`SOUTHERN DISTRICT OF CALIFORNIA
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`UNITED STATES OF AMERICA,
`Case No. 18cr4683-GPC
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` GOVERNMENT’S RESPONSE AND
`
`Plaintiff,
`OPPOSITION TO DEFENDANTS’ MOTION TO
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`DISMISS WIRE FRAUD COUNTS AND
`v.
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`ALLEGATIONS FOR FAILURE TO STATE AN
`JACOB BYCHAK (1),
`OFFENSE
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`MARK MANOOGIAN (2),
`MOHAMMED ABDUL QAYYUM (3), and
`PETR PACAS (4)
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`Defendants.
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`COMES NOW the plaintiff, United States of America, by and through
`its counsel, United States Attorney Robert S. Brewer, Jr. and Assistant
`U.S. Attorney Melanie K. Pierson, and hereby files its Response and
`Opposition to Defendants’ Motion to Dismiss Wire Fraud Counts 2-5 and
`to Strike Wire Fraud Allegations in Count 1 for Failure to State an
`Offense.
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`DATED: February 10, 2020
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`Respectfully submitted,
`ROBERT S. BREWER, JR.
`United States Attorney
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`/s/Melanie K. Pierson
`Assistant United States Attorney
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`Case 3:18-cr-04683-GPC Document 150 Filed 02/10/20 PageID.1310 Page 2 of 22
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`I.
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`STATEMENT OF THE CASE
`On October 31, 2018, a federal grand jury in the Southern District
`of California returned a ten-count indictment charging defendants Jacob
`Bychak, Mark Manoogian, Mohammed Abdul Qayyum and Petr Pacas with
`Conspiracy, in violation of Title 18, United States Code, Section 371;
`four counts of Wire Fraud, in violation of Title 18, United States Code,
`Section 1343; five counts of Electronic Mail Fraud, in violation of
`Title 18, United States Code, Section 1037(a)(5), and Criminal
`Forfeiture. The charges all relate to the defendants’ hijacking of legacy
`Internet Protocol (IP) addresses and the use of the purloined IP
`addresses to send spam.
`Defendants have filed numerous pretrial motions in this case. In
`March of 2019, Defendants filed a motion to dismiss the electronic mail
`fraud counts (Counts 6-10) as void for vagueness, and a motion to dismiss
`the indictment based on an allegation that the government misled the
`grand jury. ECF Nos. 69-70. At a hearing on October 24, 2019, the Court
`denied the grand jury motion and took the motion to dismiss Counts 6-10
`under submission. ECF No. 135. The latter motion is still pending.
`On December 11, 2019, the Court granted Defendants’ request for
`leave to file a separate motion to dismiss the wire fraud counts
`(Counts 2-5). ECF No. 142. Defendants filed that motion on January 23,
`2020. ECF No. 149. A hearing on the motion is scheduled for February 20,
`2020.
`Response and Opposition to Motion to
`Dismiss Wire Fraud Counts
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`Case 3:18-cr-04683-GPC Document 150 Filed 02/10/20 PageID.1311 Page 3 of 22
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`II
`STATEMENT OF FACTS
`Defendants stand charged with multiple counts of wire and
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`electronic mail fraud based on their scheme to hijack IP addresses,
`which they used to send billions of commercial emails and from which
`they earned millions of dollars.
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`The indictment alleges that, between December of 2010 and September
`of 2014, the defendants, “having devised a material scheme and artifice
`to defraud, and for obtaining money and property by means of materially
`false and fraudulent pretenses, representations and promises,” sent wire
`communications for the purpose of executing the scheme. As part of the
`scheme, the defendants: (1) “searched for IP addresses registered to
`third parties that appeared to be inactive,” (2)”created and sent letters
`to Internet hosting companies fraudulently making it appear that the
`registrant of the IP addressed had authorized the defendant use of the
`IP addresses,” (3)”used the IP addresses to send commercial email
`messages knowing they did not obtain control of the IP addresses from
`the true registrant or the legitimate successor in interest,” and
`(4) “concealed their use of the IP addresses to send ‘spam’ emails by
`using business names, post office boxes, and email addresses under
`different names.”
`The conspiracy count (Count 1) centers on the same scheme. The
`indictment alleges that the objects of the conspiracy (electronic mail
`fraud and wire fraud) were to be accomplished as members of the
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`Response and Opposition to Motion to
`18cr4683-GPC
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`Dismiss Wire Fraud Counts
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`Case 3:18-cr-04683-GPC Document 150 Filed 02/10/20 PageID.1312 Page 4 of 22
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`conspiracy would: (1) “identify or pay to identify blocks of Internet
`Protocol(IP) addresses called ‘netblocks’ that were registered to others
`and appeared to be inactive,” (2) “create and send letters to Internet
`hosting companies fraudulently stating the letter bearer had been
`authorized by the registrants of the inactive IP addresses to use the
`IP addresses,” and (3) “use the fraudulent acquired IP addresses to send
`commercial email (‘spam’) messages.” The specific overt acts alleged
`in furtherance of the conspiracy include: (1) creating and emailing “a
`letter which fraudulently reported to authorize the use of a netblock
`not registered to the conspirators,” and (2) emailing to confirm that
`one of the hijacked netblocks “was ready to send commercial emails.”
`Defendants argue that the Court should dismiss the indictment
`because they did not scheme to defraud anyone of “money or property,”
`as the wire fraud statute requires. The face of the indictment — as well
`as the extra-record authorities Defendants improperly rely on —
`establish to the contrary. The indictment sufficiently alleges all
`elements of wire fraud, including that Defendants engaged in a scheme
`to defraud the upstream providers into activating the IP addresses for
`Company A and, in doing so, deprived the true registrants of their
`exclusive right to control the legacy IP blocks that they had been
`assigned.
`//
`//
`//
`Response and Opposition to Motion to
`Dismiss Wire Fraud Counts
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`Case 3:18-cr-04683-GPC Document 150 Filed 02/10/20 PageID.1313 Page 5 of 22
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`III
`POINTS AND AUTHORITIES
`A. DEFENDANTS’ SCHEME TO HIJACK CONTROL OF LEGACY IP BLOCKS IS A
`SCHEME TO OBTAIN MONEY OR PROPERTY UNDER THE WIRE FRAUD STATUTE
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`1.
`Legal Standard
`Defendants move to dismiss the wire fraud counts of the indictment
`for “failure to state an offense” under Federal Rule of Criminal
`Procedure 12(b)(3). “In ruling on a pre-trial motion to dismiss an
`indictment for failure to state an offense, the district court is bound
`by the four corners of the indictment.” United States v. Boren, 278 F.3d
`911, 914 (9th Cir. 2002). The Court “should not consider evidence not
`appearing on the face of the indictment.” United States v. Jensen, 93
`F.3d 667, 669 (9th Cir. 1996); see id. (“There is no summary judgment
`procedure in criminal cases.” (citation omitted)).
`The prohibition against considering extrinsic evidence includes
`evidence that could be subject to judicial notice, such as the documents
`Defendants have submitted here. See Mot. to Dismiss at 8 n.2 (requesting
`that the court “take judicial notice” of “materials published by ARIN
`and government agencies”); see, e.g., United States v. Yang, 2019 WL
`5684527, *4 (N.D. Cal. 2019) (“[I]t is entirely improper for the Court
`to consider any of these documents on a motion to dismiss an indictment
`for failure to state an offense.”). As the Ninth Circuit put it, “[t]he
`indictment either states an offense or it doesn't.” Boren, 278 F.3d at
`914. Accordingly, the Court should not consider any of the documents
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`Response and Opposition to Motion to
`Dismiss Wire Fraud Counts
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`Case 3:18-cr-04683-GPC Document 150 Filed 02/10/20 PageID.1314 Page 6 of 22
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`submitted in support Defendants’ motion in deciding whether the
`indictment states an offense under Rule 12(b)(3).
` “An indictment is sufficient if it contains the elements of the
`charged crime in adequate detail to inform the defendant of the charge
`and to enable him to plead double jeopardy.” United States v. Buckley,
`689 F.2d 893, 896 (9th Cir. 1982). “Indictments alleging a scheme to
`defraud must provide sufficient facts to fulfill the purposes of an
`indictment.” Id. The government need not demonstrate that it “can prove
`its case,” nor “allege its theory of the case or supporting evidence,”
`so long as the indictment provides “the essential facts necessary to
`apprise a defendant of the crime charged.” Id. In ruling on the
`sufficiency of an indictment, the court must presume all allegations of
`the indictment to be true. Id. In addition, the indictment “must be read
`to include facts which are necessarily implied and construed according
`to common sense with an appreciation of existing realities.” United
`States v. Inryco, Inc., 642 F.2d 290, 294 (9th Cir. 1981). “Existing
`reality” includes common understanding of terms like IP addresses and
`domain names, which are discussed below.
`2.
`The Indictment Pleads a Scheme to Obtain Intangible Property
` The four corners of the indictment plainly allege that Defendants
`conspired to and did commit wire fraud within the meaning of 18 U.S.C.
`§ 1343. The wire fraud statute “reach[es] any scheme to deprive another
`of money or property by means of false or fraudulent pretenses,
`representations, or promises.” Carpenter v. United States, 484 U.S. 19,
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`Response and Opposition to Motion to
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`Dismiss Wire Fraud Counts
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`27 (1987). The Supreme Court has made clear that the statute protects
`intangible property rights. Id. at 25. In Carpenter, the Court found
`that a scheme to “take the [Wall Street] Journal’s confidential business
`information” was a scheme to deprive the Journal of “property,” despite
`the “intangible nature” of the property. Id. (“Here, the object of the
`scheme was to take the Journal’s confidential business information — the
`publication schedule and contents of the ‘Heard’ column — and its
`intangible nature does not make it any less ‘property’ protected by the
`mail and wire fraud statutes. McNally did not limit the scope of § 1341
`to tangible as distinguished from intangible property rights.”). It was
`sufficient for purposes of the fraud statutes that “the Journal had been
`deprived of its right to exclusive use of the information.” Id. As the
`Court explained, “exclusivity is an important aspect of confidential
`business information and most private property for that matter.” Id. at
`26-27.
`In case after case since Carpenter, this Court and the Supreme
`Court have reaffirmed that intangible property rights are protected
`under the fraud statutes. See, e.g., Cleveland v. United States, 531
`U.S. 12, 26 (2000)(“we do not here question that video poker licensees
`may have property interests in their licenses”); Pasquantino v. United
`States, 544 U.S. 349, 355-56 (2005)(Canada’s right to uncollected excise
`taxes is property for purposes of wire fraud); United States v. Ali, 620
`F.3d 1062, 1068 (9th Cir. 2010) (Microsoft’s intangible property right
`in licensed software fraudulently resold by third parties is protected
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`Response and Opposition to Motion to
`18cr4683-GPC
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`Case 3:18-cr-04683-GPC Document 150 Filed 02/10/20 PageID.1316 Page 8 of 22
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`by wire fraud and mail fraud statutes); United States v. Bruchhausen,
`977 F.2d 464, 467 (9th Cir. 1992) (“The wire fraud statute is not limited
`to possessory interests, and can extend to rights in intangible
`property.”). Those intangible rights include “the intangible right to
`control one’s property.” United States v. Welch, 327 F.3d 1081, 1108
`(10th Cir. 2003).
`3. IP Netblocks Are Property for Purposes of Wire Fraud
`Just like the confidential business information in Carpenter, the
`IP netblocks Defendants hijacked are “property” for purposes of the wire
`fraud statute. Treating the hijacked IP addresses as “property” is
`consistent with the Ninth Circuit’s treatment of similar intangible
`property rights in other contexts. In Kremen v. Cohen, 337 F.3d 1024,
`1029 (9th Cir. 2003), for example, the court considered “whether
`registrants have property rights in their domain names” for purposes of
`a conversion tort claim. See also Weinstein v. Islamic Republic of Iran,
`831 F.3d 470, 473-76 (D.C. Cir. 2016) (describing the relationship
`between IP addresses and domain names).1 Kremen applied a three-part
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`As the D.C. Circuit explained, every device connected to the
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`internet and every web page on the internet is identified by a string
`of numbers, separated by periods, known as an IP address. IP addresses
`serve as location and routing addresses for the Internet “in the same
`way a telephone number is essential to the functioning of the
`telecommunications system.” Id. at 473. Because IP addresses can be
`difficult to remember, internet users typically type an alphanumeric
`domain name (i.e., google.com) into their web browser, which an automated
`system called the “domain name system” then translates into the
`corresponding assigned IP address. Id. Unlike an IP address, a domain
`name does not identify a computer or website’s location. To reach the
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`Response and Opposition to Motion to
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`Case 3:18-cr-04683-GPC Document 150 Filed 02/10/20 PageID.1317 Page 9 of 22
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`test “to determine whether a property right in domain names exists:
`‘First, there must be an interest capable of precise definition; second,
`it must be capable of exclusive possession or control; and third, the
`putative owner must have established a legitimate claim to
`exclusivity.’” 337 F.3d at 1030 (citation omitted). Applying this test,
`Kremen held that domain names “satisfy each criterion.” Id.; see also
`CRS Recovery, Inc. v. Laxton, 600 F.3d 1138, 1142 (9th Cir. 2010) (“Like
`the majority of states to have addressed the issue, California law
`recognizes a property interest in domain names. ... To this end, courts
`generally hold that domain names are subject to the same laws as other
`types of intangible property.”); Office Depot Inc. v. Zuccarini, 596
`F.3d 696, 701-02 (9th Cir. 2010) (domain names subject to receivership).
`Kremen’s application of the three-part test to domain names is
`instructive here. As the Ninth Circuit put it, “[l]ike a share of
`corporate stock or a plot of land, a domain name is a well-defined
`interest. Someone who registers a domain name decides where on the
`Internet those who invoke that particular name, whether by typing into
`their web browsers, by following a hyperlink, or by others means, are
`sent. Ownership is exclusive in that the registrant alone makes that
`decision.” 337 F.3d at 1030.
`A registrant’s property interest in an IP address is just like the
`property interest of someone who registers a domain name. Registering
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`computer or website, the domain name “must be translated into a numerical
`IP address.” Id. (citation omitted).
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`Response and Opposition to Motion to
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`Case 3:18-cr-04683-GPC Document 150 Filed 02/10/20 PageID.1318 Page 10 of 22
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`an IP address, just like registering a domain name, “is like staking a
`claim to a plot of land at the title office.” Id. Each IP address is
`precisely defined by one set of numbers. Moreover, the registrant of an
`IP address, “decides where on the Internet those who invoke” it are
`directed. And like domain names, “ownership is exclusive in that the
`registrant alone makes that decision.”
`This interpretation is consistent with case law in other areas, as
`well. “To determine whether a particular interest is property for
`purposes of the fraud statutes, [courts] look to whether the law
`traditionally has recognized and enforced it as a property right.” United
`States v. Henry, 29 F.3d 112, 115 (3d Cir. 1994). Bankruptcy courts have
`consistently treated legacy IP addresses as transferable property.
`“Although there is sparse authority on property rights in legacy IP
`addresses, the courts and agencies that have considered the issue appear
`to be unanimous that holders of legacy IP addresses have at least some
`property interests in their addresses and that those interests are
`transferable.” Global NAPS, Inc. v. Verizon New England, Inc., No. CV
`02-12489-RWZ, 2015 WL 12781223, at *3 (D. Mass. Mar. 10, 2015). Those
`courts have recognized that an IP address registrant has “the exclusive
`right to use the Internet Numbers and the exclusive right to transfer
`its exclusive right to use the Internet Numbers,” which provides the
`registrant with “some form of property interest” that is transferable
`Id. (citation omitted).
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`Case 3:18-cr-04683-GPC Document 150 Filed 02/10/20 PageID.1319 Page 11 of 22
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`Significantly, the court in Global NAPS found legacy IP addresses
`like those defendants are charged with hijacking to be transferable
`property, in spite of noting ARIN’s position to the contrary. In
`rejecting ARIN’s position, the court cited a statement by the General
`Counsel for the National Science Foundation (the government agency that
`allocated IP addresses prior to the inception of ARIN) that “IP addresses
`given out under its oversight constituted a ‘thing of value . . .
`g[iven]’ to the assignee such that neither ARIN, or for that matter any
`other organization, could retroactively affect property and rights
`distributed’ to the assignee.” Id. As further support for the position
`that legacy IP addresses are transferable property, the court cited
`Kremen v. Cohen, No. C 98-20718, Docket 1250 at 5 (N.D. Cal. Dec. 20,
`2006), which found that ARIN did not have the authority to revoke the
`property rights of the registrants of legacy IP addresses. Id.
`Under the Supreme Court’s and this Court’s case law, that same
`property interest — including the exclusive right to use and transfer
`the IP numbers a registrant has been assigned — is likewise sufficient
`to provide protection from the unauthorized use of IP addresses via the
`wire fraud statute.
`4.
` Materiality Is Properly Alleged
`An indictment for an offense requiring an element of materiality
`is sufficient if it alleges a general statement that the matter is
`material. Gebhard v. United States, 422 F. 2d 281, 284-5 (9th Cir. 1970).
`In this case, the indictment alleges that the defendants devised a
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`“material scheme” which involved “materially false and fraudulent
`pretenses, representations and promises.” The indictment further
`describes the scheme as involving the sending of “letters to Internet
`hosting companies fraudulently making it appear that the registrant of
`the IP addressed had authorized the defendant use of the IP addresses.”
`These allegations sufficiently plead the required element of materiality
`to allow the defendants to know the essential facts necessary to apprise
`a defendant of the crime charged. While the defense speculates regarding
`future testimony at trial regarding this issue, the indictment properly
`pleads materiality and the court must assume the truth of the allegation
`for purposes of this motion. Jensen, 93 F.3d at 669.
`5.
`The Wire Fraud Allegations Are Sufficient
`Defendants claim that the indictment is insufficient because “a
`defendant can only commit mail fraud if he intended to obtain money or
`property from the one who is deceived.” The indictment sufficiently
`alleges the defendants’ scheme to defraud by submitting false letters
`to internet hosting companies, which are the entities that Defendants
`deceived. The fact that there are other victims of the fraud — including
`the true registrants whose IP addresses were hijacked and the email
`providers who had to deal with the massive spam Defendants sent — does
`not make the misrepresentation any less material or fraudulent with
`respect to the hosting companies, nor does the fact that Defendants
`deceived an upstream hosting company by providing their fraudulent
`letters to another, who then passed it along.
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`Case 3:18-cr-04683-GPC Document 150 Filed 02/10/20 PageID.1321 Page 13 of 22
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`In United States v. Bonallo, 858 F. 2d 1427, 1434 n.9 (9th Cir.
`1988), for example, the Court rejected an argument that a defendant’s
`misrepresentation to a bank that allowed him to fraudulently obtain
`money from the bank’s customers could not sustain a wire fraud
`conviction. The Court explained that both the bank and the customers
`were “victims” of the fraud, although “[t]he misrepresentation was
`directed toward the Bank.” Id. So too here. Defendants’
`misrepresentations were directed at the upstream providers, just as
`Bonallo’s were directed at the bank. Through those misrepresentations,
`Defendants were able to hijack control of IP addresses that rightfully
`belonged to others, just as Bonallo was able to steal money from the
`bank’s customers. The fact that the true registrants and the upstream
`providers were both “victims” of Defendants’ fraud is legally
`inconsequential.
`Defendants’ principal case, United States v. Lew, 875 F.2d 219 (9th
`Cir. 1989), is not to the contrary. The court in that case recognized —
`specifically citing Bonallo — that so long as money or property is
`“received from the party deceived,” the elements of wire fraud are
`satisfied. Announcing the netblocks through an upstream provider was the
`sole means by which anyone (Defendants or legitimate registrants) could
`exercise the exclusive right to control or use the IP netblocks, which
`is the most important property right held by legacy IP registrants.
`Without the participation of such hosting companies, the hijacked
`netblocks would not connect to the internet and they would be unable to
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`transmit email.2 The defendants’ fraudulent misrepresentations that they
`were authorized to use the netblocks deceived the hosting companies into
`routing the hijacked IP addresses to the defendants’ exclusive control,
`which was essential for their purpose of using the IP addresses to send
`email. In this case, the property right at issue, the right to the
`exclusive use and control of the netblocks, was obtained by deceiving
`the hosting companies. Accordingly, the facts of this case fall within
`the boundaries set by the court in Lew.
`Any broader reading of the Ninth Circuit’s decision in Lew is
`unwarranted. Since McNally v. United States, 483 U.S. 350 (1987) and Lew
`were decided in the late 1980s, the cases decided under their authority
`have been limited to cases involving fraud on the government (i.e. honest
`services fraud). Consequently, Lew stands alone in requiring the money
`or property to be received from the party deceived by the defendant’s
`false statements. See, e.g., United States v. Christopher, 142 F. 3d 46,
`54 (1st Cir. 1998) (nothing in mail fraud or wire fraud statutes requires
`the party deprived of property to be the same party who is actually
`deceived); United States v. McMillan, 600 F. 3d 434, 449 (5th Cir. 2010)
`(victim who loses property in mail fraud scheme need not be the party
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`2
`Only some Internet Service Providers have standing within the
`global internet to announce the routing information for netblocks. Once
`such a provider announces a netblock and provides its routing
`information, internet traffic can flow to and from those netblocks. In
`this case, only the upstream provider was in a position to announce
`routing information for the hijacked netblocks, which was what enabled
`them to work.
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`deceived); United States v. Siedling, 737 F. 3d 1155, 1161 (7th Cir.2013)
`(no convergence between misrepresentations and defrauded victims needed
`for mail fraud); United States v. Blumeyer, 114 F. 3d 758, 768 (8th
`Cir.1997) (defendant’s false statement to regulatory agency to forestall
`agency action to impede defendant’s scheme to obtain money is guilty of
`mail fraud); United States v. Kennedy, 64 F.3d 1465, 1476 (10 Cir. 1995)
`(mail fraud requires only scheme for obtaining money by false statements,
`not the making of false statements to any particular individuals).
`Further distinguishing Lew, the Supreme Court, in Loughrin v.
`United States, 573 U.S. 351, 353 (2014), found that the bank fraud
`statute (18 USC § 1344) did not require the government to prove that the
`defendant made a direct misrepresentation to a bank for conviction. The
`defendant in Loughrin presented counterfeit checks to a Target store,
`and argued that he could not be convicted of bank fraud because he made
`the false statement to Target rather than the bank. The Supreme Court
`noted that the “by means of” language in the statute was satisfied when
`“the defendant’s false statement is the mechanism naturally inducing a
`bank (or custodian of bank property) to part with money in its control.”
`Id. at 363. Similarly, the “by means of” language in the wire fraud
`statute would be satisfied when the defendants’ false statement
`(authority to use and control the IP addresses) is the mechanism
`naturally inducing a victim to part with property within its control
`(the exclusive access to, or use and control of, the IP addresses), and
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`would not require that the false statement be directed to any particular
`person or organization.
`Finally, the Lew case can be factually distinguished from the case
`at bar. This case involves obtaining property by means of fraudulent
`representations made to a private entity. Unlike in Lew, the defendants
`obtained exclusive use of the netblocks, thereby precluding anyone else,
`including the actual registrants, from using them. In Lew in contrast,
`the fraudulent representations induced the government to issue visas
`that had not previously existed. The supply of potential visas was
`solely within the control of the government, making them much more
`similar to a copyright than the finite supply of IP addresses and domain
`names involved in this case.
`6.
`Defendants’ Claims to the Contrary Fail On Several Fronts
`Defendants offer various arguments to support their claim that IP
`addresses are not “property” for purposes of the wire fraud statute. Not
`only do these arguments depend on documents far beyond the “four corners
`of the indictment,” Boren, 278 F.3d at 914, but they fail as a legal
`matter as well.
`a. Judicial Estoppel
`Defendants first assert that the government should be judicially
`estopped from arguing that IP addresses are property. That claim must
`fail as the defendants cannot establish a single element of a judicial
`estoppel claim. The doctrine of judicial estoppel “prevents a party from
`asserting a claim in a legal proceeding that is inconsistent with a
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`claim taken by that party in a previous proceeding.” New Hampshire v.
`Maine, 532 U.S. 742, 749 (2001).
`To begin, Defendants attempt to attribute to the entire United
`States government statements made by ARIN, a nongovernmental, nonprofit
`corporation. Mot. to Dismiss at 8-11. Defendants also cite a handful of
`statements by government officials or agencies, including Canada’s
`Department of Industry. Id. at 11. Defendants do not explain how the
`United States government can or should be bound in unrelated litigation
`by the statements of a nonprofit actor, an agency publication, or the
`views of a separate sovereign nation. Judicial estoppel certainly does
`not mandate that result.
`Nor have Defendants identified any proceeding in which the United
`States (or any related entity) “has succeeded in persuading a court to
`accept that party’s earlier position.” New Hampshire, 532 U.S. at 750.
`In fact, it is just the opposite. As Defendants acknowledge in a
`footnote, the only courts to have reached the question have held that
`IP address registrants do in fact have property rights. Mot. to Dismiss
`at 16 n.10. And there is no indication that the United States government
`ever took a position in that litigation in the first place.
`The only document Defendants cite from this litigation is a
`declaration the United States submitted in support of its opposition to
`Defendants’ motion to dismiss the other counts of the indictment. See
`ECF No. 107, 107-1. In that declaration, John Curran, the CEO of ARIN
`(not an employee or agent of the United States government) reports the
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`position of the FCC in a Staff Working Paper. ECF No. 107-1 at 5. It is
`dubious that the CEO of ARIN could bind the U.S. government by reporting
`the position of one government agency in a declaration submitted in
`connection with this case. Even a ruling in the government’s favor on
`Defendants’ vagueness motion would not be an acceptance of the position
`of the FCC, as reported by the CEO of ARIN. Defendants accordingly cannot
`point to any “risk of inconsistent court determinations” here or anywhere
`else. New Hampshire, 532 U.S. at 751.
`Further, even if any of the statements identified in Defendants’
`motion and hundreds of pages of supporting documents could be attributed
`to the government, none are “clearly inconsistent” with the allegations
`in the indictment or the position taken here. See id. at 750 (for
`judicial estoppel to apply, “a party’s later position must be ‘clearly
`inconsistent’ with its earlier position”). For exam