Case 3:18-cr-04683-GPC Document 151 Filed 02/14/20 PageID.1331 Page 1 of 17
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`Gary S. Lincenberg - SBN 123058
` glincenberg@birdmarella.com
`Naeun Rim - SBN 263558
` nrim@birdmarella.com
`BIRD, MARELLA, BOXER, WOLPERT,
`NESSIM, DROOKS, LINCENBERG &
`RHOW, P.C.
`1875 Century Park East, 23rd Floor
`Los Angeles, California 90067-2561
`Telephone: (310) 201-2100
`Facsimile: (310) 201-2110
`
`Attorneys for Petr Pacas
`
`David W. Wiechert - SBN 94607
`dwiechert@aol.com
`Jessica C. Munk - SBN 238832
`jessica@wmgattorneys.com
`William J. Migler - SBN 318518
`william@wmgattorneys.com
`WIECHERT, MUNK & GOLDSTEIN, PC
`27136 Paseo Espada, Suite B1123
`San Juan Capistrano, California 92675
`Telephone: (949) 361-2822
`
`Attorneys for Jacob Bychak
`
`Randy K. Jones - SBN 141711
`rkjones@mintz.com
`MINTZ, LEVIN, COHN, FERRIS,
`GLOVSKY AND POPEO, P.C.
`3580 Carmel Mountain Road, Suite 300
`San Diego, California 92130
`Telephone: (858) 314-1510
`
`Attorney for Mark Manoogian
`
`
`Whitney Z. Bernstein - SBN 304917
`wbernstein@bmkattorneys.com
`Thomas H. Bienert, Jr. - SBN 135311
`tbienert@bmkattorneys.com
`James Riddet – SBN 39826
`jriddet@bmkattorneys.com
`BIENERT | KATZMAN PC
`903 Calle Amanecer, Suite 350
`San Clemente, California 92673
`Telephone: (949) 369-3700
`
`Attorneys for Mohammed Abdul Qayyum
`
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`UNITED STATES OF AMERICA,
`
`Plaintiff,
`
`vs.
`
`JACOB BYCHAK, MARK
`MANOOGIAN, MOHAMMED
`ABDUL QAYYUM, AND PETR
`PACAS,
`
`
`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF CALIFORNIA
`
` CASE NO. 3:18-cr-04683-GPC
`
`DEFENDANTS’ REPLY TO
`GOVERNMENT’S RESPONSE
`AND OPPOSITION TO
`DEFENDANTS’ MOTION TO
`DISMISS WIRE FRAUD COUNTS
`AND ALLEGATIONS FOR
`FAILURE TO STATE AN
`OFFENSE
`
`Date: February 20, 2020
`Time: 1:00 p.m.
`Dept.: 2D
`
`Assigned to Hon. Gonzalo P. Curiel
`
`
`Defendants.
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`3634527.1
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`Case No. 3:18-cr-04683-GPC
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`Case 3:18-cr-04683-GPC Document 151 Filed 02/14/20 PageID.1332 Page 2 of 17
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`TABLE OF CONTENTS
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`I.
`II.
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`C.
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`D.
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`Page
`Introduction ............................................................................................................................. 5
`Argument ................................................................................................................................. 5
`A.
`The Court Must Consider Undisputed Facts In a Pretrial Motion ....................... 5
`B.
`Civil Cases Regarding Telephone Numbers Support the Argument That
`IP Addresses Are Not Property ................................................................................ 7
`Like Copyrights in Dowling, IP Addresses Are Not “Property” Just
`Because IP Address Holders Enjoy Some Limited Exclusivity ............................ 9
`The Court Must Apply the Rule of Lenity And Find IP Addresses Are
`Not Property To Avoid Rending the Wire Fraud Statute Vague ........................ 10
`E. Hosting Companies and ISPs, Who Were Not Deprived of Property,
`Cannot Be “Victims” Under Lew, Bruchhausen, and Judicial Estoppel ................ 11
`Alternatively, the Indictment Must Be Dismissed for Lack of Specificity ......... 13
`F.
`III. Conclusion ............................................................................................................................. 14
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`TABLE OF AUTHORITIES
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` Page(s)
`
`Cases
`Carpenter v. United States,
`484 U.S. 19 ................................................................................................................................... 10
`
`Cleveland v. United States,
`531 U.S. 12 (2000) ................................................................................................................ 10, 11
`
`Dowling v. United States,
`473 U.S. 207 (1985) ......................................................................................................... 9, 10, 11
`
`Employers Ins. of Wausau v. Granite State Ins. Co.,
`330 F.3d 1214 (9th Cir. 2003) ..................................................................................................... 7
`
`Glob. NAPS, Inc. v. Verizon New England, Inc.,
`No. CV 02-12489-RWZ, 2015 WL 12781223 (D. Mass. Mar. 10, 2015) ............................ 10
`
`Jahn v. 1-800-FLOWERS.com, Inc.,
`284 F.3d 807 (7th Cir. 2002) ................................................................................................... 8, 9
`
`Kremen v. Cohen,
`337 F.3d 1024 (9th Cir. 2003) ................................................................................................. 7, 9
`
`McNally v. United States,
`483 U.S. 350 (1987) .................................................................................................................... 11
`
`New Hampshire v. Maine,
`532 U.S. 742 (2001) .................................................................................................................... 12
`
`Rotstein v. Cable & Wireless, Inc.,
`No. G027549, 2002 WL 691458 (Cal. Ct. App. Apr. 24, 2002) .......................................... 7, 8
`
`Skilling v. United States,
`561 U.S. 358 (2010) .................................................................................................................... 11
`
`In re StarNet, Inc.,
`355 F.3d 634 (7th Cir. 2004) ....................................................................................................... 7
`
`Teleco, Inc. v. Sw. Bell Tel. Co.,
`392 F. Supp. 692 (W.D. Okla. 1974) ...................................................................................... 7, 8
`
`U.S. v. Shortt Accountancy Corp.,
`785 F.2d 1448 (9th Cir. 1986) ..................................................................................................... 6
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`United States v. Ali,
`620 F.3d 1062 (9th Cir. 2010) ............................................................................................. 12, 13
`
`United States v. Boren,
`278 F.3d 911 (9th Cir. 2002) ....................................................................................................... 5
`
`United States v. Bruchhausen,
`977 F.2d 464 (9th Cir. 1992) ............................................................................................... 11, 13
`
`United States v. Cecil,
`608 F.2d 1294 (9th Cir. 1979) ............................................................................................. 13, 14
`
`United States v. Covington,
`395 U.S. 57 (1969) ........................................................................................................................ 6
`
`United States v. Hall,
`20 F.3d 1084 (10th Cir. 1994) ..................................................................................................... 5
`
`United States v. Lew,
`875 F.2d 219 (9th Cir. 1989) ........................................................................................ 11, 12, 13
`
`United States v. Phillips,
`367 F.3d 846 (9th Cir. 2004) ....................................................................................................... 5
`
`United States v. Thomas,
`377 F.3d 232 (2d Cir. 2004) ......................................................................................................... 9
`
`United States v. Vasquez-Ramos,
`531 F.3d 987 (9th Cir. 2008) ....................................................................................................... 6
`Statutes
`18 U.S.C. § 2314 ................................................................................................................................. 9
`47 C.F.R. § 52.107 .............................................................................................................................. 8
`Fed. R. Cr. P. 12(b)(3)(B)(iii) ........................................................................................................... 13
`Fed. R. Evid. 201(c)(2) ....................................................................................................................... 6
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`I.
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`Introduction
`In arguing that it has sufficiently pled wire fraud, the Government confirms the flaws
`inherent in the Indictment by relying heavily on new allegations. The Government claims, for
`example, that Defendants Jacob Bychak, Mark Manoogian, Mohammed Abdul Qayyum, and
`Petr Pacas “earned millions of dollars” from hijacking IP addresses, a statement for which
`there is zero evidence and that is patently false—Defendants made no money other than their
`ordinary salaries. The Government also now claims, after having told this Court otherwise,
`that IP addresses are property and that Company H was the victim deceived. It is disturbing
`that the Government has taken polar opposite positions more than once in this case, and even
`more disturbing that it is asking this Court to rely on fictions in considering this pretrial
`motion. While the Court must take the allegations in the Indictment as true, these new
`disputed allegations appear nowhere in the Indictment. When considering the Indictment on
`its face, in conjunction with undisputed facts, the Court must find that the Government has
`failed to plead wire fraud.
`II. Argument
`A. The Court Must Consider Undisputed Facts In a Pretrial Motion
`The Government does not dispute any of the facts Defendants set forth in their
`motion. Instead, they claim the Court must ignore these undisputed facts in deciding a pretrial
`motion. But the Ninth Circuit has expressly held that it is proper for a district court to
`consider undisputed facts when considering a pretrial motion to dismiss for the purposes of
`deciding an issue of law. United States v. Phillips, 367 F.3d 846, 855 (9th Cir. 2004) (district court
`properly considered uncontested fact to decide pretrial motion to dismiss). The Ninth Circuit
`cited with approval United States v. Hall, 20 F.3d 1084, 1087 (10th Cir. 1994), which it
`characterized as “noting that a district court may dismiss an indictment pretrial for insufficient
`evidence when the facts are essentially undisputed.” Phillips, 367 F.3d 846, 855 n.25. The case
`cited by the government, United States v. Boren, 278 F.3d 911, 913 (9th Cir. 2002), is
`inapposite—in that case, the trial court had conducted an evidentiary hearing on facts that
`were apparently in dispute, which the Ninth Circuit declined to consider.
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`Even where there are facts in dispute, a motion requiring factual determinations may be
`decided before trial if “trial of the facts surrounding the commission of the alleged offense
`would be of no assistance in determining the validity of the defense.” United States v. Covington,
`395 U.S. 57, 60 (1969)). If the disputed factual issues are “entirely segregable” from the
`evidence to be presented at trial, “the district court must decide the issue raised in the pretrial
`motion before trial.” U.S. v. Shortt Accountancy Corp., 785 F.2d 1448, 1452 (9th Cir. 1986)
`(emphasis added).
`The following facts outside of the Indictment are not in dispute: (1) in support of its
`prosecution, the Government in this case submitted a declaration from the CEO of ARIN
`that took the position that IP addresses are not property (Dkt. 107-1), (2) since at least 2004,
`ARIN has publicly taken the position that IP addresses are not property (including in RSAs,
`LRSAs, publications, and legal proceedings), (3) federal agencies have affirmed that IP
`addresses are not property (FCC) and publicly stated that they agree with ARIN’s policies
`(NTIA), and (4) the IP addresses in the indictment are legacy addresses that were not subject
`to an LRSA. (See Dkt. 149-1 (“Mot.”) at 8-11.) There is no way for the Government to
`dispute these facts because their accuracy cannot reasonably be questioned.1
`Moreover, facts regarding whether an IP address can be considered “property” are
`“entirely segregable” from the evidence that will be presented at trial. See Shortt Accountancy
`Corp., 785 F.2d at 1452. The question of whether an IP address constitutes “property” under
`the federal wire fraud statute is an issue of statutory construction, which is a question of law
`for the Court, not a question for the trier-of-fact. See United States v. Vasquez-Ramos, 531 F.3d
`987, 990 (9th Cir. 2008) (denial of motion to dismiss based on interpretation of federal statute
`is question of law). Even if these undisputed facts were presented to the jury at trial, it is still
`the Court that would have to decide the issue of whether an IP address is property.
`
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`1 Accordingly, because Defendants supplied the Court “with the necessary information,”
`the Court “must take judicial notice” of these facts. See Fed. R. Evid. 201(c)(2).
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`B.
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`Civil Cases Regarding Telephone Numbers Support the Argument That
`IP Addresses Are Not Property
`Tellingly, the Government has not cited any criminal cases that have construed an IP
`address to be “property.” Instead, the Government tries to analogize to several civil cases. As
`an initial matter, the cases cited by the Government are distinguishable because they are not
`criminal—as discussed further below, the rule of lenity makes a critical difference when it
`comes to the interpretation of criminal statutes, which comports with the high stakes—loss of
`liberty—in a criminal case. But even in the universe of civil cases, the weight of the case law
`falls in Defendants’ favor. Unable to find a case holding that an IP address is considered
`“property” in a conversion claim, the Government asks the Court to apply Kremen v. Cohen,
`337 F.3d 1024 (9th Cir. 2003), which held that domain names are property for purposes of
`conversion. But the Government ignores another line of civil tort cases that have found that
`telephone numbers are not property. See, e.g., Rotstein v. Cable & Wireless, Inc., No. G027549,
`2002 WL 691458, at *6 (Cal. Ct. App. Apr. 24, 2002) (telephone number not property for
`purpose of conversion),2 Teleco, Inc. v. Sw. Bell Tel. Co., 392 F. Supp. 692, 697 (W.D. Okla.
`1974), aff'd, 511 F.2d 949 (10th Cir. 1975) (“The right to telephone service is not . . . personal
`property which is capable of being converted”); see also In re StarNet, Inc., 355 F.3d 634, 637
`(7th Cir. 2004) (“No one has a property interest in a phone number”).
`As IP addresses are far more similar to telephone numbers than domain names, the
`Court should look to the cases regarding telephone numbers, not domain names, for guidance.
`Like IP addresses, telephone numbers are a series of numbers that help devices (phones) on
`the telecommunication network find other devices (other phones). A private entity, a
`telephone carrier, typically allocates telephone numbers to direct users. With few exceptions,
`the numbers in the telephone number are random and have no inherent meaning.3 And
`
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`2 Federal courts may consider unpublished state decisions as persuasive authority. Employers
`Ins. of Wausau v. Granite State Ins. Co., 330 F.3d 1214, 1220 fn.8 (9th Cir. 2003).
`
`3 On the other hand, people ordinarily come up with or select their desired domain name
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`because a telephone number is limited to ten digits, they are a finite resource. In fact, in 1997,
`the year of ARIN’s creation, the FCC passed an anti-hoarding regulation with respect to toll-
`free numbers that sought to conserve them by preventing subscribers from selling them to
`third parties. See 47 C.F.R. § 52.107. These restrictions echo the limitations ARIN has placed
`on the transfer of IP netblocks.
`In considering these characteristics, courts have held that telephone numbers are not
`property even for civil conversion claims. See Rotstein, WL 691458, at *6; Teleco, 392 F. Supp. at
`697. In Rotstein, the plaintiff sued a telephone carrier for continuing to route calls made to his
`private phone numbers to his former employer’s corporate offices. The carrier refused the
`plaintiff’s requests to “give them back their private phone numbers.” Id. at *1. The court
`dismissed the claim of conversion, concluding that neither a telephone number nor the “right
`to telephone service” was property. Id. at *6.
`Importantly, in Jahn v. 1-800-FLOWERS.com, Inc., 284 F.3d 807, 811 (7th Cir. 2002), the
`Seventh Circuit held that, prior to the FCC’s 1997 prohibition on selling numbers, telephone
`numbers could be sold even though they were “not the subscriber’s property.” In 1976,
`the plaintiff in Jahn was assigned the phone number 1-800-FLOWERS by his carrier at
`random. Id. at 808. The plaintiff effectively “sold” the phone number to defendant 1-800-
`FLOWERS.com by entering into a contract entitling him to royalty payments from sales made
`through the phone number. See id. After the FCC passed the 1997 regulation, 1-800-
`FLOWERS stopped honoring the royalty contract, claiming that the prohibition on selling
`phone numbers precluded it from continuing to pay plaintiff. Id. The Seventh Circuit held that
`the FCC regulation could not prohibit the sale of any phone numbers that had been allocated
`prior to 1997. Id. at 810. In so holding, the court explained that even though pre-1997 phone
`numbers were not considered property, that “did not mean that subscribers were forbidden to
`transact about whatever interest they enjoyed in the use of the numbers currently assigned.”
`Id. Put another way, the ability to sell a phone number does not make the phone number
`
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`by choosing specific words.
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`“property.” See id. The court went on to describe a number of examples where one could
`receive money for transferring a possessory interest in something without owning it, such as
`subleasing an apartment or renting out a domain name. Id. at 811. Jahn is clear that an
`intangible object is not “property” simply because it can be sold for value. Accordingly, IP
`addresses are not “property” just because they can be sold or by virtue of the fact that some
`bankruptcy courts have held that they are transferrable.
`If telephone numbers are not “property” even in the context of these civil lawsuits, an
`IP address is certainly not property with respect to a criminal statute. Kremen does not mandate
`a different conclusion. Significantly, and undisputedly, the IP addresses at issue here were
`legacy addresses that were not subject to a signed LRSA, the document that confers the “exclusive
`right to be the registrant” of the IP address. This distinguishes the IP addresses in this case
`even further from the domain names in Kremen. In evaluating whether a domain name was a
`property right, the court emphasized that the decision to register the domain name is what gave
`domain holders a claim to “exclusivity.” Kremen, 337 F.3d at 1030. Here, the legacy holders
`declined to register their IP addresses with ARIN, calling into question whether they ever
`made a claim to “exclusivity” in the first place and further distinguishing this case from Kremen.
`C.
`Like Copyrights in Dowling, IP Addresses Are Not “Property” Just
`Because IP Address Holders Enjoy Some Limited Exclusivity
`Even assuming that legacy holders had some claim to exclusivity, the wire fraud claims
`still fail. The Government contends that because the legacy IP holders had the “exclusive
`right to control or use the IP netblocks,” that is enough to make the IP netblocks “property.”
`(Opp. at 13.) But the Supreme Court squarely rejected this argument in Dowling v. United States,
`473 U.S. 207 (1985).4 In Dowling, the Court held that a copyright was not “property,” even as it
`recognized that copyright holders held a “bundle of exclusive rights” to “publish, copy, and
`
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`4 Dowling interpreted 18 U.S.C. § 2314 (called the “travel fraud statute”), which is “analyzed
`in the same way” as the wire fraud statute, because they “use the same relevant language.”
`See United States v. Thomas, 377 F.3d 232, 242 (2d Cir. 2004).
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`distribute” their own work. Id. at 216-17 (emphasis added). While it is true that the Supreme
`Court has considered “exclusivity” to be a factor in determining whether an intangible right is
`“property,” see Carpenter v. United States, 484 U.S. 19, 26-27 (regarding confidential business
`information), Dowling makes clear that exclusivity alone is not enough. Notably, Dowling
`observed that although the copyright owner’s rights are “exclusive,” the copyright owner
`never has “complete control over all possible uses of his work.” Id. at 217 (quotations and
`citation omitted). Among other things, copyright holders must allow for “fair use” and grant
`compulsory licenses in nondramatic musical works. Id. That copyright owners cannot prevent
`others from using their works in all circumstances was a factor that led the Supreme Court to
`decide that copyrights were not property. Id.
`Like copyrights owners, IP address holders have a “bundle of exclusive rights,” but
`never have “complete control” over their IP addresses. Among other things, they cannot sell
`or transfer IP addresses without ARIN’s approval and are subject to ARIN’s minimum usage
`requirements. (See Mot. at 8, fn.3.) Importantly, even in civil cases where courts have arguably
`recognized some limited property interest in IP addresses by allowing parties to transfer them
`to other parties, those same courts have also held that the new recipient of the IP addresses
`must register with ARIN and comply with its policies. See, e.g., Glob. NAPS, Inc. v. Verizon New
`England, Inc., No. CV 02-12489-RWZ, 2015 WL 12781223, at *4 (D. Mass. Mar. 10, 2015)
`(new recipient of legacy IP addresses must register with ARIN). Thus, like the copyright
`holder in Dowling, the holder of an IP address never has “complete control.”
`D. The Court Must Apply the Rule of Lenity And Find IP Addresses Are Not
`Property To Avoid Rending the Wire Fraud Statute Vague
`Contrary to the Government’s argument, the interpretation of what is “property” under
`the wire fraud statute is the exact situation in which the rule of lenity applies. The rule of lenity
`requires courts to construe any ambiguities in a criminal statute in the defendant’s favor.
`Cleveland v. United States, 531 U.S. 12, 25 (2000). The ambiguity at issue here has been addressed
`time and time again by the Supreme Court. Particularly with respect to federal criminal fraud
`statutes, the Court has recognized the terms “scheme to defraud” and “property” to be
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`ambiguous and found it appropriate to apply the rule of lenity in lieu of having to invalidate
`those statutes—that is, the Court chose to narrow the application of these phrases rather than
`finding the entire statutory scheme void for vagueness. See, e.g., Skilling v. United States, 561 U.S.
`358, 412 (2010) (honest services fraud statute not void for vagueness once construed under
`the rule of lenity to apply only to bribery and kickback schemes); Cleveland, 531 U.S. at 25
`(under rule of lenity, video poker license in hands of government not “property” for purposes
`of wire fraud); McNally v. United States, 483 U.S. 350, 359-60 (1987) (under rule of lenity, the
`right to honest services is not “property” for purposes of mail fraud); Dowling, 473 U.S. at 229
`(under rule of lenity, copyright is not “property” for the purposes of travel fraud).
`The Court must do the same here and apply the rule of lenity. As discussed in
`Defendants’ motion, at minimum, there is ambiguity as to whether IP addresses are
`“property” under the wire fraud statute in light of the statements made by ARIN and the
`FCC. (Mot. at 16-17.) “A person of ordinary intelligence” cannot be said to have “fair notice
`of what is prohibited,” namely that an IP address, which federal agencies and quasi-
`government agencies have been arguing is not property, is suddenly property when it comes to
`criminal wire fraud. See Skilling, 561 U.S. at 416. A statute that fails to provide such “fair
`notice” is void for vagueness. Id.
`E. Hosting Companies and ISPs, Who Were Not Deprived of Property,
`Cannot Be “Victims” Under Lew, Bruchhausen, and Judicial Estoppel
`Having been apprised of the law, the Government has once again revised its theory of
`the case. The Government now takes the position that (1) Company H was one of the victims,
`(2) Company H was deceived, and (3) Company H gave the Defendants’ the right to the
`exclusive use and control of the netblocks. (Opp. at 12-14.) The Government claims that the
`legacy holders and the upstream providers who received the LOAs from Company H were
`also victims. All of these theories must be rejected.
`First, the Government is judicially estopped from arguing that Mr. H or Company H
`are victims. The Government’s current position is directly contrary to what it told the Court in
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`April. Then, the Government’s position was (1) Mr. H and Company H were not victims,5 (2)
`Company H was not deceived because Mr. H did not care whether the LOAs were forged,6
`and (3) Company H did not have the power to transfer IP addresses between registrants.7
`The Government took these positions to gain an advantage in that proceeding and argued that
`the defense was not entitled to informant discovery. The Court relied on Government’s
`arguments, observing, “And then if anyone is a victim, it would be the IP person – the entity
`that has had their profit accessed through false verifications, so that they would be the victims,
`but it wouldn’t be [Mr. H].” (Dkt. 100, 04/30/19 Trans. 28:22-25.) The court then confirmed
`its tentative denying the motion. (Dkt. 100, 04/30/19 Trans. 31:17-19.) Having “succeeded in
`persuading a court to accept” its earlier position, the Government is now estopped from
`arguing the opposite. See New Hampshire v. Maine, 532 U.S. 742, 750 (2001).
`Second, none of these theories can satisfy the requirement in Lew: that the property be
`obtained from the victim of the deceit. See United States v. Lew, 875 F.2d 219, 221 (9th Cir.
`1989). The Government does not deny that, at best, the Indictment alleges that the deceived
`party was Company H (and now apparently upstream providers), and the ones who were
`deprived of the alleged “property” were the legacy holders. Under Lew, this lack of
`convergence between the deceit and the deprivation of property is fatal to the Government’s
`wire fraud claims. Although the Government cites several out-of-circuit authorities that hold
`otherwise, here in the Ninth Circuit, Lew remains good law and is binding on this Court. See
`United States v. Ali, 620 F.3d 1062, 1071 (9th Cir. 2010) (applying Lew to find that victim was
`the one from whom property was taken).8
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`5 “Our theory is not that [Mr. H] is the victim here.” (Dkt. 100, 04/30/19 Trans. 29:1-2.)
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`6 “My expectation is that [Mr. H] is going to testify that he did not believe it was his job to
`verify whether or not the LOAs were, in fact, true.” (Dkt. 100, 04/30/19 Trans. 20:25-21:2.)
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`7 “And that’s because [Mr. H] did not have the power or authority to transfer IP blocks
`between registrants.” (Dkt. 100, 04/30/19 Trans. 21:4-5.)
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`8 While the Government attempts to distinguish Lew by citing to a few case that have held
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`Finally, the Government’s theory that Company H and any upstream providers were
`deprived of property because they were deceived into routing the IP netblocks is foreclosed by
`United States v. Bruchhausen, 977 F.2d 464 (9th Cir. 1992). The Government is essentially arguing
`that Company H and the upstream providers had a property interest in being able to provide a
`service without being deceived as to its purpose. In Bruchhausen, the Ninth Circuit held that
`manufacturers had not lost a “property right” by selling goods to the defendant, even though
`the defendant had lied about what the goods would be used for. Id. at 466-67. Unsurprisingly,
`the Government does not even address Bruchhausen in its opposition.
`F.
`Alternatively, the Indictment Must Be Dismissed for Lack of Specificity
`If nothing else, the Government’s opposition shows that the Indictment must be
`dismissed for lack of specificity. See Fed. R. Cr. P. 12(b)(3)(B)(iii). An indictment must set
`forth “a sufficient description of the charges against [a defendant] to enable him to prepare his
`defense, to ensure that the defendant is prosecuted on the basis of facts presented to the
`grand jury, to enable him to plead jeopardy against a later prosecution, and to inform the court
`of the facts alleged so that it can determine the sufficiency of the charge.” United States v. Cecil,
`608 F.2d 1294, 1296 (9th Cir. 1979). The Indictment falls woefully short of these standards—
`it is ambiguous as to what the specific nature of the property is, who was deceived, what was
`material, and who was deprived of what. To fill in these holes, the Government raises a host
`of new (disputed) accusations against Defendants in their Opposition that are nowhere in the
`Indictment (notwithstanding their vociferous objection to the Court considering any of
`Defendants’ undisputed facts outside of the Indictment’s four corners). They claim, for
`example, that Defendants made millions of dollars, that Company H