Case 3:18-cr-04683-GPC Document 188 Filed 06/22/20 PageID.1941 Page 1 of 24
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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
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`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
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`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
`
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`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
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`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
`
`REPLY 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.
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`
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`REPLY IN SUPPORT OF MOTION TO DISMISS
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`Case No. 3:18-cr-04683-GPC
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`Case 3:18-cr-04683-GPC Document 188 Filed 06/22/20 PageID.1942 Page 2 of 24
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`TABLE OF CONTENTS
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`I.
`II.
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`Page
`INTRODUCTION .................................................................................................................... 6
`ARGUMENT.............................................................................................................................. 9
`A. Whether IP Addresses Are “Property” Is a Question of Law for the Court
`to Decide, and the Government Cites No Authority That Holds Otherwise ......... 9
`The Government Fails to Establish that IP Addresses Are a “Valuable
`Entitlement” ................................................................................................................... 12
`Intangible Rights Constitute “Property” Only If They Have “Long Been
`Recognized As Property,” and Ali and Blaszczak Support This Position .............. 15
`IP Addresses Have Not “Long Been Considered Property”................................... 16
`A Finding that IP Addresses Are “Property” Would Be Contrary to
`ARIN’s Policies and Jeopardize the Way the Internet Functions ........................... 20
`The Indictment Must Be Dismissed For Insufficiency ............................................ 21
`F.
`III. CONCLUSION ........................................................................................................................ 21
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`B.
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`C.
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`D.
`E.
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`Case 3:18-cr-04683-GPC Document 188 Filed 06/22/20 PageID.1943 Page 3 of 24
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`TABLE OF AUTHORITIES
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` Page(s)
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`Cases
`Ass’n des Eleveurs de Canards et d’Oies du Quebec v. Harris,
`729 F.3d 937 (9th Cir. 2013) ......................................................................................................... 10
`
`Bateson v. Geisse,
`857 F.2d 1300 (9th Cir. 1988) ....................................................................................................... 14
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`Carpenter v. United States,
`484 U.S. 19 (1987) ...................................................................................................................... 6, 11
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`Cleveland v. United States,
`531 U.S. 12 (2000) .................................................................................................................... passim
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`Farrell v. Burke,
`559 F.3d 470 (2d Cr. 2006) .............................................................................................................. 7
`
`Federal Home Loan Mtge. Corp. v. SFR Invs. Pool 1, LLC,
`893 F.3d 1136 (9th Cir. 2018) ....................................................................................................... 14
`
`Glob. NAPS, Inc. v. Verizon New England, Inc.,
`No. CV 02-12489-RWZ, 2015 WL 12781223 (D. Mass. Mar. 10, 2015) .................... 17, 18, 20
`
`Jahn v. 1-800-FLOWERS.com, Inc.,
`284 F.3d 807 (7th Cir. 2002) ................................................................................................... 19, 20
`
`Johnson v. Rancho Santiago Cmty. Coll. Dist.,
`623 F.3d 1011 (9th Cir. 2010) ....................................................................................................... 14
`
`Kelly v. United States,
`140 S. Ct. 1565 (2020) .............................................................................................................. 11, 12
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`Kremen v. Cohen,
`337 F.3d 1024 (9th Cir. 2003) ....................................................................................................... 21
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`McNally v. United States,
`483 U.S. 350 (1987) .................................................................................................................. 11, 15
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`In re Nortel Networks Inc.,
`Case No. 09-10138-CCS (Bankr. D. Del.), Docket No. 5315 (Sale Order) ...................... 17, 18
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`Pasquantino v. United States,
`544 U.S. 349 (2005) .................................................................................................................. passim
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`Perrin v. United States,
`444 U.S. 37 (1979) .......................................................................................................................... 13
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`Rotstein v. Cable & Wireless, Inc.,
`No. G027549, 2002 WL 691458 (Cal. Ct. App. Apr. 24, 2002) .......................................... 18, 19
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`In re StarNet, Inc.,
`355 F.3d 634 (7th Cir. 2004) ......................................................................................................... 18
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`Stirone v. United States,
`361 U.S. 212 (1960) ........................................................................................................................ 21
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`Teleco, Inc. v. Sw. Bell Tel. Co.,
`392 F. Supp. 692 (W.D. Okla. 1974) ...................................................................................... 18, 19
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`United States v. Ali,
`620 F.3d 1062 (9th Cir. 2010) ......................................................................................... 6, 8, 15, 16
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`United States v. Blaszczak,
`947 F.3d 19 (2d Cir. 2019) .......................................................................................... 12, 15, 16, 17
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`United States v. Jinian,
`725 F.3d 954 (9th 2013) ................................................................................................................. 11
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`United States v. Lanier,
`520 U.S. 259 (1997) ............................................................................................................ 10, 15, 17
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`United States v. Miller,
`953 F.3d 1095 (9th Cir. 2020) ....................................................................................................... 11
`
`United States v. Payne,
`944 F.2d 1458 (9th Cir. 1991) ......................................................................................................... 7
`
`United States v. Saathoff,
`708 F. Supp. 2d 1020 (S.D. Cal. 2010) ........................................................................................... 8
`
`United States v. Vasquez-Ramos,
`531 F.3d 987 (9th Cir. 2008) ......................................................................................................... 10
`Statutes
`18 U.S.C. § 1343 ............................................................................................................................. 17, 20
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`47 C.F.R. § 52.107 ................................................................................................................................ 19
`U.S. Const. V Amend........................................................................................................................... 21
`Fed. R. Crim. P. 12 ........................................................................................................................... 9, 10
`Fed. R. Crim. P. 29 ..................................................................................................................... 8, 11, 12
`Fed. R. Evid. 403 .................................................................................................................................... 7
`Fed. R. Evid. 104(a) ................................................................................................................................ 9
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`Other Authorities
`Black’s Law Dictionary (11th ed. 2019) ............................................................................................. 14
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`I.
`
`INTRODUCTION
`In its opposition, the Government takes a kitchen-sink approach and attempts to create
`as much confusion as possible by litigating against arguments that Defendants did not make,
`manufacturing disputes of fact where none exist, and mischaracterizing critical cases. In doing
`so, the Government all but ignores Defendants’ most fundamental argument—that whether
`the use of IP addresses falls within the definition of “property” under the wire fraud statute is a
`question of statutory construction that must be decided by the Court as a matter of law. See
`United States v. Ali, 620 F.3d 1062, 1067 (9th Cir. 2010) (whether right to payment is “money or
`property” “calls upon us to interpret and apply the mail and wire fraud statute”).
`The Supreme Court has always treated what constitutes “property” under the federal
`fraud statutes as a question of law and has never remanded a case on the basis that the jury should have
`been the one to decide the property issue. See, e.g., Pasquantino v. United States, 544 U.S. 349, 356
`(deciding the right to collect “money legally due” is property); Cleveland v. United States, 531 U.S.
`12, 20 (2000) (deciding that poker license issued is not “property” in the government’s hands);
`Carpenter v. United States, 484 U.S. 19, 25-26 (1987) (deciding confidential business information
`is property, even if intangible, because it has “long been recognized as property”). Unable to
`argue otherwise, the Government declines to address the “question of law” argument directly
`and simply pretends throughout its opposition that “property” is an ultimate issue of fact that
`must be decided by the jury or by the Court on a sufficiency of the evidence standard. There is
`no case that supports the Government’s argument, and the Court must decline the
`Government’s invitation to commit reversible error by turning juries into the de facto deciders of
`property rights.
`When treating the question of whether an intangible right is “property” as one of
`statutory interpretation, as the Supreme Court and the Ninth Circuit have consistently done, it
`is clear that only a few preliminary facts are necessary to decide this issue of law. As argued in
`Defendants’ motion, various canons of statutory construction, which intersect with
`constitutional principles of fair notice, require the Court to consider (1) whether Congress
`intended for the wire fraud statute’s definition of “property” to encompass the use of IP
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`addresses; (2) whether IP addresses have “long been recognized as property,” and (3) how
`courts were treating IP addresses during the time period alleged in the Indictment. (Dkt. 169-1
`at 15.) These questions require the Court to evaluate only limited, preliminary facts regarding
`legislative intent, statements made by ARIN and other government agencies as to whether IP
`addresses are property,1 and case law from the relevant time period.
`The critical fact that ARIN, the organization that polices IP addresses, has emphatically
`taken the position that IP addresses are not property—and argued that a contrary finding
`would destroy the way the entire internet functions—distinguishes this case from other cases
`involving intangible property rights and makes it even less likely that a person of ordinary
`intelligence would be on notice that IP addresses are “property.”2 Such facts are “entirely
`segregable” from the issues for trial and must be decided by this Court.
`Further, introducing these undisputed facts to the jury would also be highly
`inappropriate and a waste of time. The jury cannot decide this question of law. The jury
`should not be forced to sit through witnesses reading aloud various Congressional resolutions,
`statements made by ARIN and John Curran about how IP addresses are not property, or
`bankruptcy cases on whether IP addresses can be bought or sold. See Fed. R. Evid. 403. And
`the Defendants should not be prejudiced by arguments and evidence pertaining to wire fraud
`counts that will ultimately fail as a matter of law.
`Rather than confronting Defendants’ statutory construction analysis head-on, the
`Government instigates another goose chase by proposing yet another novel definition of
`
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`1 The statements by ARIN and other agencies attached to Defendants’ Request for Judicial
`Notice (“RJN”) are clearly being offered to show nothing more than that they were said and
`fall within the “effect on the listener” exception to the hearsay rule. See United States v. Payne,
`944 F.2d 1458, 1472 (9th Cir. 1991) (“We find that the statement properly was treated as non-
`hearsay because it was not introduced for the truth of the matter asserted. The statement was
`introduced . . . to show the effect on the listener”).
`
`2 Because vagueness-as-applied challenge is an “objective, not subjective” inquiry, facts
`pertaining to Defendants’ subjective belief are irrelevant. See Farrell v. Burke, 559 F.3d 470, 483
`(2d Cr. 2006) (‘actual notice should not be given decisive weight” in a vagueness analysis).
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`“property,” this time by relying on misleading and selective quotes from Pasquantino to suggest
`that something can be property as long as it is “something of value” or a “valuable
`entitlement.” (Dkt. 176 at 1.) This is nothing more than the Government’s latest attempt to
`convert a plainly legal question into a factual one. By doing so, the Government creates the
`misimpression that the Court must consider all kinds of facts to decide whether IP addresses
`are property. But as will be discussed further, the Government misunderstands what
`constitutes an “entitlement” and mischaracterizes Pasquantino and United States v. Ali, 620 F.3d
`1062 (9th Cir. 2010), both of which actually support Defendants’ argument that IP addresses can
`only constitute property under the federal criminal fraud statutes if they have “long been
`recognized as property.” (Dkt. 169-1 at 15.) Neither can the Government escape the
`vagueness analysis and the rule of lenity simply by redefining “property” broadly as “something
`of value.”
`Apart from the utter lack of legal support for the Government’s obfuscation of this
`narrow issue, the Government ignores the unusual procedural posture of this case. Unlike the
`Court’s decision with respect to the CAN-SPAM counts, the Court has not concluded that the
`Indictment on its face states a wire fraud offense—instead, the Court has determined that it is
`“unable to determine whether the IP netblocks at issue in the Indictment constitute ‘property’
`for the purposes of the wire fraud statute at this time.” (Dkt. 160 at 9.) Thus, Defendants face
`the prospect of being tried without knowing whether the facts alleged in the wire fraud counts
`constitute a crime. “Under our Constitution, people are not to be punished for ‘violating an
`unknowable something.’” United States v. Saathoff, 708 F. Supp. 2d 1020, 1042 (S.D. Cal. 2010),
`quoting Screws v. United States, 325 U.S. 91, 105 (1945). “[D]ue process forbids turning citizens
`into criminals through the application of novel, untested applications of a criminal statute.”
`Id. To avoid creating a constitutional question, and in the interest of judicial economy, the
`Court should decide the question of whether IP addresses are property prior to trial. If the
`Court were to wait until a Rule 29 motion or a post-trial jury instruction to decide that IP
`addresses are not property, Defendants would be forced to file a motion for new trial as to the
`CAN-SPAM counts. Such a result is especially unwarranted here, where the Court can decide
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`the issue based on a limited universe of facts, of which the Court is by now very familiar.
`Based on the above, and as set forth in their motion papers, Defendants propose that
`the Court reach the decision pretrial in one of three ways:
`First, the Court should decide that IP addresses are not “property” as a matter of law
`based on principles of fair notice and statutory construction. This conclusion is supported by
`undisputed facts including (1) Congress’s clear intent to relinquish the regulation of IP
`addresses to ARIN, a non-profit organization, (2) statements from ARIN and other agencies
`demonstrating that the use of IP addresses cannot be considered a traditional form of
`“property,” and (3) case law from the relevant time period that confirms that the question of
`whether IP addresses are “property” is an ambiguous one. For this Court to hold otherwise
`would violate principles of fair notice, the rule of lenity, and render the wire fraud statute void
`for vagueness. This approach does not require an evidentiary hearing and would require the
`Court only to consider preliminary facts about ARIN in the Statement of Undisputed Facts
`(“SUF”) and the documents submitted in the Request for Judicial Notice (“RJN”).
`Second, if the Court nonetheless believes additional facts about IP addresses are
`necessary to make this determination, it should hold an evidentiary hearing, either under Rule
`12(d) or Federal Rule of Evidence 104(a).
`Third, if the Court does not believe it can hold an evidentiary hearing to learn the facts
`necessary to determine whether IP addresses are property, it should dismiss the wire fraud
`counts outright for failure to contain sufficient facts to put Defendants on notice as to whether
`they are charged with a crime.
`II. ARGUMENT
`A. Whether IP Addresses Are “Property” Is a Question of Law for the Court
`to Decide, and the Government Cites No Authority That Holds Otherwise
`As a preliminary matter, it is for this Court – not the jury – to decide whether “blocks of
`Internet Protocol (IP) addresses that were registered to others and appeared to be inactive”
`constitute “property” within the meaning of the wire fraud statute. Indictment ¶ 2a. The
`Government cannot seriously dispute that the Supreme Court has treated the question of
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`whether an intangible right is “property” under the federal fraud statutes as matters of fair
`notice and statutory construction, both of which are questions of law. See 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”). These issues
`can and should be decided pretrial. See Fed. R. Crim. P. 12 (“The court must decide every
`pretrial motion before trial unless it finds good cause to defer a ruling”).
`Cleveland illustrates this point. In Cleveland, the “property” issue was raised at the district
`court level in a motion to dismiss the mail fraud counts. 531 U.S. at 17. In reviewing whether
`video licenses issued by the state constituted “property” for the purposes of wire fraud, the
`Supreme Court employed familiar concepts of statutory construction and fair notice. The
`Court first reviewed the history of the fraud statute and noted that Congress’s original intent
`was to “protect the people from schemes to deprive them of their money or property.” Id. at
`18-19. The Court then considered whether the State’s “intangible rights of allocation,
`exclusion, and control” of video poker licenses were “traditional concepts of property.” Id. at
`23-24. It concluded that, unlike confidential business information, licenses were “far from
`composing an interest that ‘has long been recognized as property.’” Id. at 23. The Court
`further indicated a reluctance to construe “property” in a manner that “invites us to approve a
`sweeping expansion of federal criminal jurisdiction” into an area “traditionally regulated by
`state and local authorities.” Id. at 24. Finally, the Court applied the rule of lenity—a
`manifestation of “fair notice,” United States v. Lanier, 520 U.S. 259, 266 (1997)—and held that,
`“to the extent that the word ‘property’ is ambiguous as placed in § 1341, we have instructed
`that ‘ambiguity concerning the ambit of criminal statutes should be resolved in favor of
`lenity.’” Cleveland, 531 U.S. at 25. The Court then determined, as a matter of law, that video
`poker licenses in the hands of the state were not “property” within the meaning of the federal
`fraud statute. Id. at 26. Because this legal question was raised in the trial court on a motion to
`dismiss, the Court necessarily found that the lower court’s denial of the motion was the error.
`If the question of “property” were an issue of fact, the Court in Cleveland would have instead
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`reversed the conviction and simply remanded the case so that to the jury could decide the
`issue.
`The Government does not—and indeed, cannot—cite a single case holding that
`“property” is a question of fact that must be decided by the jury or treated as a “sufficiency of
`the evidence” issue. Instead, the Government cites inapposite cases having nothing to with
`the meaning of “property” in the wire fraud statute but instead involving defendants who
`happened to challenge the sufficiency of elements other than property through Rule 29 motions.
`(Dkt. 176. at 11-12.) The defendants in United States v. Miller, 953 F.3d 1095, 1108 (9th Cir.
`2020) and United States v. Jinian, 725 F.3d 954, 959-62 (9th 2013), for example, argued that
`evidence was insufficient to establish the element of an “interstate wire communication.”
`Those cases have zero bearing, however, on whether this Court must treat the property
`element of the wire fraud counts in this case as an issue of statutory interpretation.
`The Government also stretches logic and common sense to argue that because Kelly,
`McNally, Carpenter, Cleveland, and Pasquantino came before the Supreme Court in a post-trial
`posture, those cases somehow support the notion that attacks on novel constructions of
`“property” cannot be made pretrial. (Dkt. 176 at 12-13.) This argument is preposterous. In
`Kelly, Cleveland, and McNally, the Supreme Court reversed the trial verdicts, clearly indicating
`that the trial courts had erred by failing to dispose of the matter prior to trial. If “property” were
`actually a jury question, the Supreme Court would have remanded all of these case back to the
`district court so that the issues could be decided by a jury.
`The Government erroneously appears to rely on the trial court record in Kelly v. United
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`States, 140 S. Ct. 1565 (2020). See Opp. at 12 (opining that, “[t]ellingly, the Kelly decision that
`Defendants rely on arose from a Rule 29 motion, not from a motion to dismiss”). This
`argument seriously misses the mark. In Kelly, as this Court is aware, the government sought to
`prosecute government officials for realigning toll lanes leading to the George Washington
`Bridge – the so-called “Bridge Gate” scandal. See Kelly, 140 S. Ct. at 1568. But the Supreme
`Court’s ruling had nothing to do with the sufficiency of the government’s evidence presented
`at trial. Rather, the Court held, as a matter of law, that the “Government could not have proved—on
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`either of its theories … that Baroni’s and Kelly’s scheme was directed at the Port Authority’s
`property.” Id. at 1572 (emphasis added) (internal quotation marks and punctuation omitted).
`The Court reiterated: “Because the scheme here did not aim to obtain money or property,
`Baroni and Kelly could not have violated the federal-program fraud or wire fraud laws.” Id. at 1574
`(emphasis added).
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`Despite this clear language, the Government still tries to make its unsupported
`arguments by citing to the certiorari petition in Kelly, where the defendants (rightfully)
`complained that, “[d]espite acknowledging that this prosecution was ‘novel,’ the [trial] court
`rejected a vagueness challenge as ‘inappropriate for a pretrial motion’ and cast aside the rule of
`lenity as irrelevant.” Opp. at 12 n. 4 (citing Br. for Pet., United States v. Kelly, 2019 WL 4568203,
`at *12). This argument is nothing short of bizarre. In light of Supreme Court’s ultimate
`disposition, the trial court was clearly wrong when it refused to entertain a pre-trial motion to
`challenge the government’s invalid theory of what “property” is.
`Similarly, the Government’s reliance on Blaszczak is equally misplaced. There, as the
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`Opposition correctly points out, the “defendant brought a Rule 29(a) challenge to whether the
`wire fraud scheme involved ‘property.’” Opp. at 12. But again, the Second Circuit’s ultimate
`holding illustrates why this issue of statutory construction could – and should – have been
`raised in a motion to dismiss instead. Specifically, the Court observed that the “Defendants
`expressly tied their sufficiency claim to the Supreme Court’s decision in Cleveland, thus raising the
`broader threshold question of whether a government agency’s confidential regulatory information may constitute
`‘property’ in the hands of the agency as a general matter.” United States v. Blaszczak, 947 F.3d 19, 31 (2d
`Cir. 2019) (emphasis added). This “broader threshold question” was a legal question turning
`on the construction of the statute, not the sufficiency of the government’s evidence. Binding
`case law makes clear that whether IP address are “property” is a question of law for the Court
`to decide.
`B. The Government Fails to Establish that IP Addresses Are a “Valuable
`Entitlement”
`Pasquantino, from which the Government selectively cites, did not hold that “property”
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`should be defined as “something of value” that should be left to the jury. Like in Cleveland, the
`Supreme Court in Pasquantino treated the “property” question as one of statutory construction.
`It first noted that the term “property” must be interpreted according to its “ordinary or natural
`meaning.” Pasquantino v. United States, 544 U.S. 349, 356 (2005) (citing Leocal v. Ashcroft, 543
`U.S. 1, 9 (2004) (emphasis added). This approach is consistent with the “fundamental canon of
`statutory construction [] that, unless otherwise defined, words will be interpreted as taking their
`ordinary, contemporary, common meaning.” Perrin v. United States, 444 U.S. 37, 42 (1979).
`Applying this uncontroversial rule, the Court held that “Canada’s right to uncollected excise
`taxes on the liquor petitioners imported into Canada is ‘property’ in its hands.” Pasquantino,
`544 U.S. at 355. It explained that this right was an “entitlement to collect money from
`petitioners, the possession of which is ‘something of value’ to the Government of Canada,”
`and that “[v]aluable entitlements like these are “property” as that term ordinarily is employed.”
`Id. at 355-56. The Court went on to reason that the “right to be paid money has long been thought
`to be a species of property.” Id. at 356. Thus, Pasquantino did not establish a “valuable entitlement”
`as a separated definition of property—rather, the Court found that valuable entitlements fell
`within the traditional notions of what constitute property.
`The Government seizes on the phrases “valuable entitlement” and “something of value”
`as an excuse to introduce a one-sided, misleading narrative of Defendants’ alleged purchase and
`sale of IP addresses. (Dkt. 176 at 37-41.) The Court should disregard these facts because they
`are irrelevant when it comes to a statutory construction analysis. But neither do Defendants
`object to the Court accepting the Government’s narrative as true for the sake of this motion.3
`Even taking these new alleged facts into account, and even defining “property” as a “valuable
`entitlement,” the Government fails to achieve any further clarity as to whether IP addresses are
`property.
`Black’s Law Dictionary defines “ENTITLEMENT” as “[a]n absolute right to a (usu.
`monetary) benefit, such as social security, granted immediately upon meeting a legal requirement.”
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`3 Defendants reserve the right to dispute these incorrect facts at trial.
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`Black’s Law Dictionary (11th ed. 2019) (emphasis added). In the Ninth Circuit, a “‘legitimate
`claim of ent