Case 3:18-cr-04683-GPC Document 164-1 Filed 05/18/20 PageID.1494 Page 1 of 32
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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
`
`MEMORANDUM OF POINTS
`AND AUTHORITES IN SUPPORT
`OF MOTION TO DISMISS WIRE
`FRAUD COUNTS FOR
`VIOLATING THE FIFTH
`AMENDMENT DUE PROCESS
`AND SIXTH AMENDMENT FAIR
`NOTICE PROTECTIONS
`
`Assigned to Hon. Gonzalo P. Curiel
`Courtroom 2D
`
`Hrg Date: June 26, 2020
`Hrg. Time: 2:30 p.m.
`
`
`Defendants.
`
`
`
`MEMORANDUM OF POINTS AND AUTHORITIES
`
`Case No. 3:18-cr-04683-GPC
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`Case 3:18-cr-04683-GPC Document 164-1 Filed 05/18/20 PageID.1495 Page 2 of 32
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`
`TABLE OF CONTENTS
`
`Page
`
`I.
`II.
`
`INTRODUCTION ...................................................................................................................... 6
`PROCEDURAL HISTORY ....................................................................................................... 9
`A.
`The Government Relies on Documents from ARIN in Opposition to
`Defendants’ CAN-SPAM Motion ................................................................................... 9
`Defendants Rely on Documents from ARIN and Statements From the
`Government’s Expert in Their Motion to Dismiss the Wire Fraud Counts ........... 10
`The Parties Meet and Confer on Undisputed Preliminary Facts Regarding
`IP Addresses .................................................................................................................... 11
`III. ARGUMENT.............................................................................................................................. 12
`A. Whether IP Addresses Are “Property” Is Subject to the Constitutional
`Requirement of Fair Notice That Is Unquestionably a Legal Issue for the
`Court ................................................................................................................................. 12
`Based on the Undisputed and Indisputable Facts, the Federal Fraud Statutes
`Do Not Give Fair Notice That IP Addresses Constitute Property .......................... 14
`1.
`Congress Has Expressly Declined to Exercise Authority Over IP
`Addresses and Long Ago Relinquished That Role to ARIN ......................... 15
`IP Addresses Have “Long Been Recognized” As Not Property By
`ARIN, the Organization That Administers Polices Pertaining to IP
`Addresses .............................................................................................................. 18
`Applying Kremen Would Violate the Prohibition Against Novel Construction
`and Deviate from the Ninth Circuit’s Treatment of “Property” In the
`Context of Federal Fraud Statutes ................................................................................ 21
`The Court May Consider Extrinsic Preliminary Facts to Decide Questions
`of Law ............................................................................................................................... 24
`If the Court Does Not Wish to Consider Extrinsic Preliminary Facts, the
`Indictment Must Be Dismissed for Lack of Fair Notice ............................................ 27
`IV. CONCLUSION .......................................................................................................................... 29
`
`B.
`
`C.
`
`B.
`
`2.
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`C.
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`D.
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`E.
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`TABLE OF AUTHORITIES
`
` Page(s)
`
`Cases
`Apprendi v. New Jersey,
`530 U.S. 466 (2000) .......................................................................................................................... 12
`
`Ass’n des Eleveurs de Canards et d’Oies du Quebec v. Harris,
`729 F.3d 937 (9th Cir. 2013) ...................................................................................................... 8, 13
`
`Borre v. United States,
`940 F.2d 215 (7th Cir. 1991) ........................................................................................................... 22
`
`Carpenter v. United States,
`484 U.S. (1987) ........................................................................................................................... 14, 22
`
`Cleveland v. United States,
`531 U.S. 12 (2000) ......................................................................................................... 13, 14, 15, 22
`
`Dowling v. United States,
`473 U.S. 207 (1985) ................................................................................................................... 14, 17
`
`Farrell v. Burke,
`449 F.3d 470 (2d Cir. 2006) ............................................................................................................. 12
`
`Gautt v. Lewis,
`489 F.3d 993 (9th Cir. 2007) ........................................................................................ 12, 13, 27, 28
`
`Kelly v. United States,
`590 U.S. __, 2020 WL 2200833 (2020) ................................................................................. 6, 7, 14
`
`Kremen v. Cohen,
`337 F.3d 1024 (9th Cir. 2003) ................................................................................................... passim
`
`Liparota v. United States,
`471 U.S. 419 (1985) .......................................................................................................................... 14
`
`McNally v. United States,
`483 U.S. 350 (1987) ............................................................................................................. 13, 14, 22
`
`In re Nortel Networks Inc.,
`Case No. 09-10138-CCS (Bankr. D. Del.) ..................................................................................... 23
`
`Rotstein v. Cable & Wireless, Inc.,
`No. G027549, 2002 WL 691458 (Cal. Ct. App. Apr. 24, 2002) .................................................. 23
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`
`Russell v. United States,
`369 U.S. 749 (1962) .......................................................................................................................... 28
`
`Sprint Corp. v. F.C.C.,
`331 F.3d 952 (D.C. Cir. 2003) ......................................................................................................... 15
`
`Stirone v. United States,
`361 U.S. 212 (1960) .......................................................................................................................... 12
`
`United States v. Aguilar,
`756 F.2d 1418 (9th Cir.1985)........................................................................................................... 12
`
`United States v. Bruchhausen,
`977 F.2d 464 (9th Cir. 1992) ........................................................................................................... 22
`
`United States v. Cecil,
`608 F.3d 1294 (9th Cir. 1979) ......................................................................................................... 28
`
`United States v. Chamberlain,
`No. 14-CR-00316-VC-1, 2015 WL 10096591 (N.D. Cal. Aug. 27, 2015) ................................. 12
`
`United States v. Du Bo,
`186 F.3d 1177 (9th Cir. 1999) ........................................................................................................... 8
`
`United States v. Franklin,
`No. 1:15-cr-00242-BLW, 2016 WL 4033105 (D. Idaho, July 27, 2016) ............................. 25, 26
`
`United States v. Gaudin,
`515 U.S. 506 (1995) .......................................................................................................................... 13
`
`United States v. Kail,
`No. 18-cr-00172-BLF-1, 2018 WL 6511154 (N.D. Cal. Dec. 11, 2018) ............................. 25, 16
`
`United States v. Kato,
`878 F.2d 267 (9th Cir. 1989) ........................................................................................................... 22
`
`United States v. Lanier,
`520 U.S. 259 (1997) ................................................................................................................... 14, 21
`
`United States v. Omer,
`395 F.3d 1087 (9th Cir. 2005) .................................................................................................... 8, 28
`
`United States v. Reyes,
`No. CR-06-00556-CRB, 2007 WL 831808 (N.D. Cal. Mar. 16, 2007) ........................................ 7
`
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`United States v. Saathoff,
`708 F. Supp. 2d 1020 (S.D. Cal. 2010) .......................................................................... 7, 13, 21, 27
`
`United States v. Shortt Accountancy Corp.,
`785 F.2d 1448 (9th Cir.1986)........................................................................................................... 25
`
`United States v. Shotts,
`145 F.3d 1289 (11th Cir. 1998) ....................................................................................................... 22
`
`United States v. Tsinhnahijinnie,
`112 F.3d 988 (9th Cir. 1997) ........................................................................................................... 27
`
`United States v. Vasquez-Ramos,
`531 F.3d 987 (9th Cir. 2008) ...................................................................................................... 8, 13
`
`United States v. Williams,
`553 U.S. 285, 170 L.Ed.2d 650 (2008) ........................................................................................... 12
`
`United States v. Yang,
`No. 16-CR-00334-LHK-1, 2019 WL 5684527 (N.D. Cal. Nov. 1, 2019) .......................... 25, 26
`Statutes
`18 U.S.C. § 1037(a)(5) ................................................................................................................. 9, 17, 18
`
`18 U.S.C. § 1343 ................................................................................................................................ 7, 21
`
`47 U.S.C. § 251(e)(1) .............................................................................................................................. 16
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`I.
`
`INTRODUCTION
` This motion arises out of constitutional defects from the Indictment’s failure to allege a
`fraud involving “property;” this Court’s request that Defendants Jacob Bychak, Mark
`Manoogian, Mohammed Abdul Qayyum, and Petr Pacas provide a procedural vehicle for
`deciding this issue; and a recent Supreme Court decision which bolster’s the defense position.
`Defendants filed a motion to dismiss the wire fraud allegations on the basis that IP addresses
`are not “property” within the meaning of the wire fraud statute. The Court held that it was
`unable to decide the question, stating that “it lacks the factual record necessary to determine
`whether IP addresses assigned prior to creation of the American Registry of Internet Numbers
`(ARIN) on December 22, 1997 are ‘property’ for the purposes of the wire fraud statute.” (Dkt.
`160 at 2.) The Court concluded both (1) that the facts alleged in the Indictment were
`insufficient to enable the Court to decide whether IP addresses were property, and (2) that it
`could not consider facts outside of the Indictment to decide the question. (Id. at 6-7.) This left
`Defendants in a legal quandary of not knowing whether the wire fraud counts state a criminal
`offense. Recognizing this, during a telephonic hearing on April 8, 2020, the Court granted
`Defendants’ request to brief the question of how the Court should proceed on deciding
`whether an IP address is property. The Court also ordered the parties to meet and confer on
`what facts in the record regarding IP addresses were undisputed. The Government confirmed
`during the meet and confer process that nearly all of the facts set forth by John Curran and
`Marc Lindsey were undisputed.1
`Meanwhile, on May 7, 2020, the Supreme Court unanimously overturned the wire fraud
`convictions of several public officials because a state agency’s “intangible rights of allocation,
`exclusion, and control” traffic lanes does “not create a property interest.” Kelly v. United States,
`590 U.S. __, 2020 WL 2200833 (2020) at *5, citing Cleveland v. United States, 531 U.S. 12, 26
`
`
`1 The parties’ correspondence is attached to the Declaration of Naeun Rim (Rim Decl.) as
`Exh. A to paragraph 2. Defendants have concurrently filed a Notice of Statement of
`Undisputed Facts.
`
`3649483.1
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`(2000). Once again, the Court counseled the importance of employing “a limiting
`construction” to avoid vagueness problems with federal fraud statutes. Id. at *4. The
`unanimous reversal by the Supreme Court in Kelly warns of the enormous toll on the parties
`and the judicial system when lower courts give the benefit of the doubt to the government as
`to whether or not “property” has been charged.
`In light of (1) the Supreme Court’s decision in Kelly reaffirming the obligation of the
`lower courts to avoid novel constructions of “property” under the federal fraud statutes, and
`(2) confirmation by the Government during the meet-and-confer process that key facts are
`undisputed, the case is ripe for this Court to decide whether IP addresses are property. Indeed,
`the Fifth and Sixth Amendments, as well as the interests of judicial economy, require it.
`Defendants suggest the Court progress through the issues as follows:
`First, the Court should address the Constitutional challenge. Where an indictment
`alleges as a property interest something which is not recognized as a property interest,
`Defendants are not provided fair notice that their alleged conduct constituted a wire fraud. As
`such, the indictment is void for vagueness as applied to IP addresses. Whether a statute is
`vague as applied to the allegations on the face of an indictment is a matter of law that can and
`must be decided pretrial. See United States v. Saathoff, 708 F. Supp. 2d 1020, 1033-34 (S.D. Cal.
`2010) (dismissing indictment pretrial because honest services statute was unconstitutionally
`vague as applied to the conduct alleged in the indictment, and “defendants would be denied
`their Fifth and Sixth Amendment rights to fair notice should a trial be permitted”).2 The
`question of vagueness comes down to one of fair notice and statutory construction—would an
`average person of ordinary intelligence know that IP addresses are property under 18 U.S.C. §
`1343? Id. at 1034. Matters of fair notice and statutory construction are questions of law that
`
`2 Vagueness-as-applied to the face of an indictment (which can be determined pretrial) is
`distinguishable from vagueness-as-applied to a defendant’s actual conduct, which some courts
`have held must be decided by the court after trial. See, e.g., United States v. Reyes, No. CR-06-
`00556-CRB, 2007 WL 831808, at *7 (N.D. Cal. Mar. 16, 2007) (finding pre-trial as-applied
`vagueness challenge premature because defendants sough the court to consider facts that “were
`unsupported by the indictment, which alleges otherwise”).
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`must be decided by the Court, not a jury. See, e.g., Ass’n des Eleveurs de Canards et d’Oies du Quebec
`v. Harris, 729 F.3d 937, 946 (9th Cir. 2013) (whether a statute gives fair notice is a question of
`law); United States v. Vasquez-Ramos, 531 F.3d 987, 990 (9th Cir. 2008) (statutory construction is
`question for the court, “not a question of fact”). The preliminary facts necessary to decide this
`issue of fair notice are limited—put simply (1) Congress long ago relinquished to ARIN the
`authority to manage and allocate IP addresses, (2) ARIN’s consistent stance over the years has
`been and continues to be that IP addresses, whether legacy or not, are not property, and (3) no
`court has clearly held that IP addresses are “property” under any definition. These facts are
`undisputed or indisputable. Based on these facts, it is clear that a person of ordinary
`intelligence would not have had fair notice that IP addresses were “property”—and waiting
`until the end of trial to make that determination when the pertinent facts are already known to
`the Court would be a colossal waste of the jury’s time and substantially prejudice Defendants.
`Second, if the Court rejects Defendants’ constitutional challenge, the Court should
`consider extrinsic, preliminary facts to address the statutory construction problem. The
`Court’s denial of the earlier motion to dismiss suggested a novel application of the three-factor
`test in Kremen v. Cohen, 337 F.3d 1024 (9th Cir. 2003). To the extent that the Court believes it
`must complete that Kremen analysis here, and needs a more detailed factual predicate to do so,
`the Court should consider whatever extrinsic preliminary facts it believes is necessary to decide
`whether IP addresses are “property.” The Court may conduct an evidentiary hearing as to
`preliminary facts pursuant to Kremen or Federal Rule of Evidence 104(a). Kremen itself held that
`(1) whether something was “a species of property to which conversion applies is a question of law
`rather than of adjudicative fact,” and (2) in considering that question, the court could consider facts
`outside of the record to make that determination. Id. at 1034, n.10 (emphasis added).
`Finally, if the Court refuses to consider any extrinsic, preliminary facts, the Court must
`dismiss the Indictment for failing to include enough facts to enable the Court to decide
`whether the Indictment has sufficiently alleged property, an essential element of wire fraud. See
`United States v. Omer, 395 F.3d 1087, 1089 (9th Cir. 2005) (“the indictment’s failure to recite an
`essential element of the charged offense” is a “fatal flaw requiring dismissal”); United States v.
`
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`Du Bo, 186 F.3d 1177, 1179 (9th Cir. 1999) (indictments must include all “implied, necessary
`elements, not present in the statutory language”).
`II.
`PROCEDURAL HISTORY
`A summary of the proceedings thus far will help illustrate why the matter is ripe for
`decision.
`A. The Government Relies on Documents from ARIN in Opposition to
`Defendants’ CAN-SPAM Motion
`On March 15, 2019, Defendants filed a motion to dismiss the CAN-SPAM counts as
`being void for vagueness, arguing that the word “registrant” in 18 U.S.C. § 1037(a)(5) was
`vague. (Dkt. 69-1.) In its opposition, the Government cited to materials outside of the
`Indictment to set forth preliminary facts about IP address allocation and registration,3 including
`items published on ARIN’s website regarding Registration Services Agreements (“RSAs”) and
`articles published by ARIN on third party websites.4 (Dkt. 75 at 9-10.) Nearly two and a half
`months after briefing on the motion was over, the Government went further and filed an
`expert declaration from John Curran, the CEO of ARIN, in support of its opposition without
`seeking leave of Court. (Dkt. 107-1.) It was in that declaration that Mr. Curran, the
`Government’s witness, stated under oath, “no property right is conferred to recipient”
`when an IP number is allocated. (Id. at ¶ 14 (bold italics in original).) The Court granted
`Defendants’ request to file a counter-declaration from an expert, and Defendants filed a
`declaration from Marc Lindsey, an IPv4 market advisor. (Dkt. 116.) The Government did not
`seek to cross examine Mr. Lindsey or identify any facts in his declaration that were in dispute.
`On February 28, 2020, in its order denying Defendants’ motion to dismiss the CAN-
`
`
`3 The Government stated, “A brief summary of the history of IP address allocation and
`registration is helpful to appreciate the fallacy of defendants’ argument.” (Dkt. 75 at 9.)
`
`4 See, e.g., Guidance from ARIN on Legal Aspects of the Transfer of Internet Protocol Numbers, available
`at
`https://www.americanbar.org/groups/business_law/publications/blt/2013/05/03_edelman/
`(published May 31, 2013), cited in Dkt. 154 at 2.
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`SPAM counts, the Court took into account preliminary facts regarding IP addresses and
`allocation, relying on the ARIN article the Government had cited from the American Bar
`Association and also information from ARIN’s website. The Court concluded, “A ‘registrant’
`of an IP address is the person or entity who has been assigned the IP address by ARIN or its
`predecessors, and whose information is stored and listed in ARIN’s WhoIs database.” (Dkt.
`154 at 18.)
`B. Defendants Rely on Documents from ARIN and Statements From the
`Government’s Expert in Their Motion to Dismiss the Wire Fraud Counts
`After the Government offered a declaration in which the ARIN CEO swore that IP
`addresses were not property, the Court granted the Defendants’ under seal application to
`subpoena documents from ARIN relating to that statement. Because the documents were
`relevant to the question of whether IP addresses were property, an essential element of wire
`fraud, the Court allowed Defendants to wait for the subpoena response before filing the
`motion to dismiss the wire fraud counts. (Dkt. 141, 10/24/19 Trans. 66:22-67:22.)
`As was the case with the word “registrant” at issue in the CAN-SPAM motion, the
`Indictment refers to IP addresses and netblocks without including specific details about how IP
`addresses function. Thus, when Defendants submitted the motion to dismiss the wire fraud
`counts, Defendants had to rely on evidence outside of the Indictment regarding the
`characteristics of IP addresses in order to adequately brief the question of whether IP addresses
`were property. Defendants assumed they would be permitted to introduce preliminary facts
`and evidence about the characteristics of IP addresses similar to that which had been submitted
`and considered in the CAN-SPAM motion. Accordingly, Defendants relied entirely on (1) the
`documents from ARIN that had been produced in response to the Court-approved subpoena
`(Dkt. 149-2), (2) materials from ARIN’s website, (3) statements from the declarations of John
`Curran and Marc Lindsey that were filed with the CAN-SPAM motions (Dkt. 149-1 at 6-11),
`and (4) statements the Government had made in Court transcripts and filings.
`The Government did an about-face and claimed it disputed the statement of its own
`expert that IP addresses were not property. Having relied on similar evidence to oppose the
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`CAN-SPAM motion, the Government suddenly argued that the Court could not consider these
`preliminary facts or any outside evidence when considering a pretrial motion to dismiss. The
`Court agreed with the Government on that point but, like Defendants, found that the
`Indictment did not sufficiently describe IP addresses to enable the Court to evaluate whether
`they were property. The Court denied Defendants’ motion but granted Defendants leave to
`file this brief regarding how the Court should now proceed as to the wire fraud counts.
`C. The Parties Meet and Confer on Undisputed Preliminary Facts Regarding
`IP Addresses
`On order of the Court, the Government met and conferred with Defendants about the
`preliminary facts regarding IP addresses. The Government identified only a few paragraphs in
`Mr. Curran and Mr. Lindsey’s declaration as being disputed.5 (Decl. Rim ¶ 2, Exh. A at 1.)
`Defendants have filed a Notice of Statement of Undisputed Facts (“SUF”) concurrently with
`this motion consolidating in a chart the statements in both experts’ declarations to which the
`Government did not object. With respect to the documents Defendants had submitted as part
`of the wire fraud motion, the Government did not take a position. Thus, Defendants have
`concurrently filed a Request for Judicial Notice (“RJN”) with respect to those documents,
`along with an additional Exhibit I.6
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`5 Specifically, the Government disputed paragraphs 3, 5, 6, 8, 11-14, 18, 22, 25, and 26 of Mr.
`Linsey’s declaration, and paragraphs 14,15,19, and 21 of its witness’ declaration. The
`Government did not provide a basis for the disputes. These paragraphs are omitted from the
`SUF and are not necessary for the Court’s determination of the issues.
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`6 For the Court’s convenience, Defendants have included only the pages on which
`Defendants rely in the exhibits to the RJN. To the extent the Court wishes to consider the
`whole document, the exhibits are attached in their entirety to the Declaration of Naeun Rim
`that was filed in support of the prior motion to dismiss the wire fraud counts. (Dkt. 149-2.)
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`III. ARGUMENT
`A. Whether IP Addresses Are “Property” Is Subject to the Constitutional
`Requirement of Fair Notice That Is Unquestionably a Legal Issue for the
`Court
`The heart of this dispute revolves around the constitutional requirement of fair notice in
`a criminal case. The Indictment charges Defendants with committing wire fraud for allegedly
`obtaining “inactive” IP netblocks and using them without the authorization of the entities to
`whom they were originally assigned. For these wire fraud counts to survive as alleged, both the
`wire fraud statute and the allegations in the Indictment have to pass constitutional muster.
`With respect to the wire fraud statute, the due process clause of the Fifth Amendment requires
`statutes to provide “a person of ordinary intelligence fair notice of what is prohibited.” United
`States v. Williams, 553 U.S. 285, 170 L.Ed.2d 650 (2008). This is an objective standard, not a
`subjective one—whether a person was on actual notice that his conduct was proscribed is not
`relevant. Farrell v. Burke, 449 F.3d 470, 483 (2d Cir. 2006) (vagueness-as-applies is “objective,
`not subjective,” and “actual notice should not be given decisive weight in answering them”);
`United States v. Chamberlain, No. 14-CR-00316-VC-1, 2015 WL 10096591, at *1 (N.D. Cal. Aug.
`27, 2015) (vague-as-applied analysis not a question of “whether the defendant himself had
`actual notice of the illegality of his conduct”). With respect to the Indictment, the Sixth
`Amendment guarantees a defendant the fundamental right to be informed of the nature and
`criminal charges against him. U.S. Const. amend. VI (“In all criminal prosecutions, the accused
`shall enjoy the right . . . to be informed of the nature and cause of the accusation”); Gautt v.
`Lewis, 489 F.3d 993, 1002-03 (9th Cir. 2007). The Fifth Amendment also requires that
`defendants be made only to stand trial for charges that were returned by a grand jury in its
`indictment. U.S. Const. amend. V; Apprendi v. New Jersey, 530 U.S. 466, 499-500 (2000); Stirone
`v. United States, 361 U.S. 212, 215–18, (1960); United States v. Aguilar, 756 F.2d 1418, 1423 (9th
`Cir.1985).
`An indictment serves as the means by which a defendant is given notice of both the
`crime with which he has been charged and the specific conduct that is alleged to constitute that
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`crime. Gautt, 489 F.3d at 1004. Thus, it is not enough that the charged statute give sufficient
`notice of what is prohibited—the indictment too must be sufficiently clear to inform a
`defendant that the conduct he is accused of constitutes a crime. See id.; Saathoff, 708 F. Supp.
`2d at 1042 (dismissing indictment charging honest services fraud prior to trial as being vague-
`as-applied where conduct described in indictment was not clearly a violation of the honest
`services fraud statute). Together, these constitutional principles prohibit the scenario
`Defendants face here: not knowing whether what they are charged with in the wire fraud
`counts sufficiently states the offense of wire fraud. See id.
`The trouble with the sufficiency of the wire fraud counts in this case starts with the
`vagueness of the federal fraud statutes—namely words like “property” or “goods,” which have
`long been recognized by the Supreme Court as having a tendency to be ambiguous, particularly
`as it pertains to intangible objects. See, e.g., Cleveland v. United States, 531 U.S. 12, 25 (2000);
`Dowling (re copyrights). Rather than striking down the federal fraud statutes as being void for
`this ambiguity, the Supreme Court has directed courts to construe the statute in accordance with fair
`notice principles to determine what does and does not qualify as property. Id. Thus, if a question
`arises as to whether an alleged object is “property,” it is an issue of statutory construction—a
`question of law which must be decided by a judge, not a jury. Ass’n des Eleveurs de Canards e