Case 3:18-cr-04683-GPC Document 221 Filed 11/02/20 PageID.2235 Page 1 of 17
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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
`
`
`Whitney Z. Bernstein - SBN 304917
`wbernstein@bienertkatzman.com
`Thomas H. Bienert, Jr. - SBN 135311
`tbienert@bienertkatzman.com
`James Riddet – SBN 39826
`jriddet@bienertkatzman.com
`BIENERT | KATZMAN PC
`903 Calle Amanecer, Suite 350
`San Clemente, California 92673
`Telephone: (949) 369-3700
`
`Attorneys for Mohammed Abdul Qayyum
`
`
`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
`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF CALIFORNIA
`
` CASE NO. 3:18-cr-04683-GPC
`
`DEFENDANTS’ JOINT
`SUPPLEMENTAL BRIEF IN
`SUPPORT OF MOTION TO
`DISMISS
`
`Hrg. Date: December 3, 2020
`Hrg. Time: 1:00 p.m.
`
`Assigned to Hon. Gonzalo P. Curiel,
`Courtroom 2D
`
`Defendants.
`
`
`UNITED STATES OF AMERICA,
`
`Plaintiff,
`
`vs.
`
`JACOB BYCHAK, MARK
`MANOOGIAN, MOHAMMED
`ABDUL QAYYUM, AND PETR
`PACAS,
`
`
`
`
`
`Defendants Jacob Bychak, Mark Manoogian, Mohammed Abdul Qayyum, and Petr
`Pacas submit this supplemental brief in response to the Court’s request for further briefing
`at the October 1, 2020, status conference.
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`Defendants’ Supplemental Brief in Support of Motion to Dismiss
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`Case 3:18-cr-04683-GPC Document 221 Filed 11/02/20 PageID.2236 Page 2 of 17
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`TABLE OF CONTENTS
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`Page
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`I.
`
`To Construe the Wire Fraud Statute, the Court Must Determine Whether IP
`Netblocks Have “Long Been Recognized”—or Been “Traditionally
`Recognized”—As Property ................................................................................................... 1
`A.
`The Traditional Recognition Rule Was Created By the Supreme Court .............. 1
`B.
`The Ninth Circuit Has Applied the Traditional Recognition Rule ....................... 7
`C. Whether An Intangible Interest Is “Something of Value” or “Exclusive”
`Is Not Dispositive—the Critical Question Is Whether It Has Long Been
`Recognized As Property ................................................................................................. 8
`II. During 2010 to 2014, the Relevant Time Period, IP Netblocks Had Not Been
`“Traditionally Recognized” As Property ............................................................................. 9
`III. CONCLUSION .................................................................................................................... 10
`CERTIFICATE OF AUTHORIZATION TO SIGN ELELECTRONIC
`SIGNATURE ...................................................................................................................... 12
`CERTIFICATE OF SERVICE ..................................................................................................... 13
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`Case 3:18-cr-04683-GPC Document 221 Filed 11/02/20 PageID.2237 Page 3 of 17
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`
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`TABLE OF AUTHORITIES
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` Page(s)
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`Federal Cases
`Carpenter v. United States,
`484 U.S. 19 (1987) .................................................................................................... 3, 5, 8
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`Cleveland v. United States,
`531 U.S. 12 (2000) ................................................................................................ 3, 4, 5, 9
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`Dowling v. United States,
`473 U.S. 207 (1985) .......................................................................................................... 9
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`Glob. NAPS, Inc. v. Verizon New England, Inc.,
`No. CV 02-12489-RWZ, 2015 WL 12781223 (D. Mass. Mar. 10, 2015) ................ 10
`
`In re Borders Group, Inc.,
`Case No. 11-10614, Dkt. 2367 (Bankr. S.D.N.Y. Dec. 20, 2011)............................. 10
`
`In re Nortel Networks Inc.,
`Case No. 09-10138-CCS, Dkt. 5315 (Bankr. D. Del. April 26, 2011) ........................ 9
`
`Kelly v. United States,
`140 S. Ct. 1565 (2020) ...................................................................................................... 5
`
`Kremen v. Cohen,
`No. C 98-20718, 2006 WL 8443063 (N.D.Cal. Dec. 20, 2006) ............................ 9, 10
`
`McNally v. United States,
`483 U.S. 350 (1987) .................................................................................................. 2, 4, 6
`
`Skilling v. United States,
`561 U.S. 358 (2010) .......................................................................................................... 6
`
`United States v. Ali,
`620 F.3d 1062 (9th Cir. 2010) ..................................................................................... 7, 8
`
`United States v. Baldinger,
`838 F.2d 176 (6th Cir. 1988) ........................................................................................... 6
`
`United States v. Bruchhausen,
`977 F.2d 464 (9th Cir. 1992) ........................................................................................... 7
`
`United States v. Evans,
`844 F.2d 36 (2d Cir. 1988) ............................................................................................... 6
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`Case 3:18-cr-04683-GPC Document 221 Filed 11/02/20 PageID.2238 Page 4 of 17
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`United States v. Hedaithy,
`392 F.3d 580 (3d Cir. 2004) ......................................................................................... 1, 5
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`United States v. Henry,
`29 F.3d 112 (3d Cir. 1994) ....................................................................................... 1, 5, 9
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`United States v. Lanier,
`520 U.S. 259 (1997) ...................................................................................................... 6, 9
`Federal Statutes
`18 U.S.C. § 1341 ..................................................................................................................... 1
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`18 U.S.C. § 1343 ..................................................................................................................... 1
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`I.
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`To Construe the Wire Fraud Statute, the Court Must Determine Whether IP
`Netblocks Have “Long Been Recognized”—or Been “Traditionally
`Recognized”—As Property
`At the October 1, 2020, status conference, the Court requested further briefing on
`“the extent that the Court is allowed to look at and, in fact, is required to look at the law
`relating to the subject interest that is being described as ‘property,’ whether or not the Court
`just does what the government is doing, which is determining whether it’s something of
`value, or whether or not we follow this Third Circuit requirement that, in determining
`whether a particular interest is property for purposes of the fraud statutes, one looks to
`whether the law traditionally has recognized and enforced it as a property right.” (10/1/20
`Trans. 19:9-19.) The two Third Circuit cases referenced by the Court both held that only
`those interests that have been traditionally recognized as property can be the object of federal
`wire/mail fraud. See United States v. Hedaithy, 392 F.3d 580, 590 (3d Cir. 2004) (“the object of
`the alleged scheme or artifice to defraud must be a traditionally recognized property right”)
`(emphasis added); United States v. Henry, 29 F.3d 112, 115 (3d Cir. 1994) (“to determine
`whether a particular interest is property for purposes of the fraud statutes, we look to
`whether the law traditionally has recognized and enforced it as a property right”) (emphasis
`added). The Third Circuit’s “traditional recognition” rule is a correct statement of the law.
`This conclusion is supported and mandated by Supreme Court and Ninth Circuit precedent.
`A. The Traditional Recognition Rule Was Created By the Supreme Court
`The Third Circuit was not the architect of the “traditional recognition” rule. In both
`Hedaithy and Henry, the court was simply summarizing the approach the Supreme Court has
`taken when evaluating whether an intangible interest constitutes “property,” as that term is
`used in 18 U.S.C. §§ 1341 and 1343. The Third Circuit expressly stated as much in Hedaithy:
`“This [traditional recognition] rule is embodied in a trilogy of Supreme Court cases that,
`each party agrees, governs the outcome of this appeal.” 392 F.3d at 590 (citing McNally v.
`United States, 483 U.S. 350 (1987), Carpenter v. United States, 484 U.S. 19 (1987), and Cleveland v.
`United States, 531 U.S. 12 (2000)). See also Henry, 29 F.3d at 115 (citing Carpenter as source of
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`traditional recognition rule). The traditional recognition rule is rooted in each of the
`Supreme Court cases that have evaluated intangible interests in the context of federal fraud
`statutes—McNally, Carpenter, Cleveland, Pasquantino, and Kelly—and is mandated by the rule of
`lenity and the due process/notice requirements underpinning the vagueness doctrine.
`In McNally, the Supreme Court definitively interpreted the mail fraud statute as being
`“limited in scope to the protection of property rights.” 483 U.S. 350, 360. In so holding, the
`Court overturned a line of appellate cases that had held that mail fraud could encompass
`“schemes to defraud citizens of their intangible rights to honest and impartial government.”
`Id. at 355. Because the right to honest services was not “property,” it could not be the object
`of mail fraud. See id. at 356 (“The mail fraud statute clearly protects property rights, but does
`not refer to the intangible right of the citizenry to good government”).
`McNally was significant, not only because it settled years of disagreement among the
`appellate courts regarding whether mail fraud was limited to property rights, but also because
`the Court rejected the notion that federal criminal fraud statutes should be broadly
`interpreted to encompass any dishonest scheme. The Court acknowledged that it was possible
`to read the mail fraud statute to be so broad—“it is arguable that . . . the money-or-property
`requirement of the latter phrase does not limit schemes to defraud to those aimed at causing
`deprivation of money or property.” Id. at 358. But the Court ultimately concluded that such
`a reading of a criminal statute would be improper under the rule of lenity:
`The Court has often stated that when there are two rational readings of a criminal
`statute, one harsher than the other, we are to choose the harsher only when
`Congress has spoken in clear and definite language. . . . Rather than construe the
`statute in a manner that leaves its outer boundaries ambiguous and involves the
`Federal Government in setting standards of disclosure and good government for
`local and state officials, we read § 1341 as limited in scope to the protection of
`property rights.”
`Id. at 359-60 (citations omitted).
`Since McNally, the Supreme Court has confronted the issue of whether certain
`intangible interests constitute “property” on at least four more occasions. In each of these
`cases, the Court continued to show the restraint it had exercised in McNally by recognizing
`only those intangible interests that had long been recognized as property as falling within the reach
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`of the criminal mail and wire fraud statutes. In Carpenter, the Court considered whether the
`confidential business information of a newspaper was “property.” 484 U.S. at 25. The Court
`distinguished McNally, holding that, unlike the intangible right to honest services, the
`intangible right to “[c]onfidential business information has long been recognized as
`property.” Id. at 26 (emphasis added). In support, the Court quoted a well-known legal
`treatise that stated, “Confidential information acquired or compiled by a corporation in the
`course and conduct of its business is a species of property to which the corporation has the
`exclusive right and benefit, and which a court of equity will protect through the injunctive
`process or other appropriate remedy.” See id. (quoting 3 W. Fletcher, Cyclopedia of Law of
`Private Corporations § 857.1, p. 260 (rev. ed. 1986)) (emphasis added). The Court also cited
`a string of its own cases in which it had treated confidential business information, such as
`trade secrets and insider trading information, as property. See id. By basing its decision on
`how the law had traditionally treated confidential business information, the Court avoided any
`vagueness issues that might arise from construing it as “property”—because it had “long
`been recognized” as such. See id.
` In contrast, vagueness concerns prompted the Court to reach the opposite
`conclusion with respect to licenses to operate video poker machines. See Cleveland, 531 U.S.
`at 25 (applying the rule of lenity). In Cleveland, the Court unanimously held that an operating
`license was not property in the hands of the state because, inter alia, the government’s
`property arguments “stray[ed] from traditional concepts of property.” Id. at 24 (emphasis
`added). Notably, the Court distinguished Carpenter because, unlike licenses, confidential
`business information had traditionally been treated as property by prior legal authorities: “Citing
`decisions of this Court as well as a corporate law treatise, we observed [in Carpenter] that
`‘[c]onfidential business information has long been recognized as property.’” Id. at 19
`(quoting Carpenter, 484 U.S. at 26) (emphasis added). Finding no such similar traditional
`treatment of licenses, the Cleveland Court rejected the Fifth Circuit’s determination that a
`state’s “right to choose the person to whom it issues video poker licenses” could constitute a
`property right: “[F]ar from composing an interest that ‘has long been recognized as
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`property,’ these intangible rights of allocation, exclusion, and control amount to no more
`and no less than Louisiana’s sovereign power to regulate.” Id. at 23 (citation omitted)
`(emphasis added). As was the case in McNally, the Court invoked the rule of lenity to justify
`its construction of the fraud statute, this time by expressly commenting on the vagueness of
`the word “property” and the serious criminal implications of interpreting it more broadly:
`[T]o 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.” This interpretive guide is especially appropriate
`in construing § 1341 because, as this case demonstrates, mail fraud is a predicate
`offense under RICO, 18 U.S.C. § 1961(1) (1994 ed., Supp. IV), and the money
`laundering statute, § 1956(c)(7)(A).
`Id. at 25.
`In Pasquantino, the Court held in a 5-4 decision that the intangible right to be paid
`money legally due constituted “money or property” under the wire fraud statute. See 544 U.S.
`at 355 (“Canada’s right to uncollected excise taxes on the liquor petitioners imported into
`Canada is ‘property’ in its hand”). The Court observed, “The right to be paid money has
`long been thought to be a species of property.” Id. at 356 (emphasis added). As it did with
`confidential business information in Carpenter, the Court then cited various legal
`authorities—this time, to several American and English treatises on the “common law of
`fraud”—as evidence that a legal entitlement to payment had traditionally been treated as
`property. See id. (citing 3 W. Blackstone, Commentaries on the Laws of England 153-155
`(1768); 2 J. Kent, Commentaries on American Law; 1 J. Story, Equity Jurisprudence § 378 (I.
`Redfield 10th rev. ed. 1870); Chesterfield v. Janssen, 28 Eng. Rep. 82, 2 Ves. Sen. 125 (ch. 1750);
`and 1 S. Rapalje & R. Lawrence, A Dictionary of American and English Law 546 (1883)).
`Having again based its reasoning on proof that the intangible interest at issue had
`traditionally been recognized by the law as property, the majority sidestepped the due
`process and notice concerns that would otherwise necessitate application of the rule of
`lenity. But see id. at 383 (rule of lenity counseled against construing right to collect tax as
`“property”) (Ginsburg, J., dissenting, joined by Breyer, Scalia, Souter, JJ.).
`Finally, most recently in Kelly, the Court overturned wire fraud convictions where the
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`intangible interest alleged included a local government’s right to “control” the use of its
`bridge lanes. Kelly v. United States, 140 S. Ct. 1565, 1572 (2020). The Court found Cleveland
`controlling on this question and held that this right was not “property” for the purposes of
`wire fraud. Id. (“The State’s ‘intangible rights of allocation, exclusion, and control’—its
`prerogatives over who should get a benefit and who should not—do ‘not create a property
`interest.’”) (quoting Cleveland).1
`Thus, as shown supra, in the post-McNally Supreme Court cases regarding intangible
`interests and the federal fraud statutes, the Court’s decision turned on whether the law had
`long treated the interest as property or traditionally recognized it as such. Critically, it is not sufficient
`that a smattering of recent cases might have found or suggested that the interest at issue was
`“property”—in Cleveland, for example, the First, Third, and Fifth Circuits had held that
`licenses were “property” in federal fraud cases, but the Court nonetheless overturned these
`rulings. See 531 U.S. at 18. The requirement is that the interest has been so consistently
`recognized, treated, and enforced as property for such a time so as to eradicate any doubt
`that it comports with traditional concepts of property. See Carpenter, 484 U.S. at 26
`(“[c]onfidential business information has long been recognized as property”) (emphasis
`added); Cleveland, 531 U.S. at 24 (among other things, construing license as property would
`“stray from traditional concepts of property”) (emphasis added); Pasquantino, 544 U.S. at 356
`(“The right to be paid money has long been thought to be a species of property”). This rule
`is binding on all courts. Although the Third Circuit later articulated the traditional
`recognition rule in concise statements of law, it was simply summarizing the approach that
`had already been taken by the Supreme Court, not inventing a rule unique to that circuit. See
`Hedaithy, 392 F.3d at 590; United States v. Henry, 29 F.3d at 115.
`Indeed, the Third Circuit is not the only appellate court that has expressly interpreted
`
`
`1 The Court also found that the cost of paying employee time and labor was property under
`Pasquantino, but this issue was not in dispute. Id. at 1573 (noting “both defendants agree” the
`cost of employee services was an economic loss). The Court ultimately held that this interest
`was not the object of the defendants’ fraud, merely an “incidental byproduct.” Id. at 1574.
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`the Supreme Court’s intangible-interest cases as requiring a review of how the law has
`traditionally treated the interest. The Sixth Circuit reached the same conclusion as far back as
`1988, the year after McNally and Carpenter were decided. See United States v. Baldinger, 838 F.2d
`176, 179 (6th Cir. 1988) (“From this, we are led to conclude that while the Supreme Court
`recognized both tangible and intangible property interests, they nonetheless clearly intended
`to exclude from the reach of the mail fraud statute claims which did not involve a direct
`intention to deprive another of a recognized and traditional property right (tangible or
`intangible) through the employment of fraud or other artifice and the use of the public
`mail”) (emphasis added). That same year, the Second Circuit expressed a similar view by
`looking at differences between how the law treated “traditional real-property rights” versus
`the government’s right to control the use of its weapons. See United States v. Evans, 844 F.2d
`36, 41 (2d Cir. 1988) (“That the right at issue here has not been treated as a property right in
`other contexts, and that there are many basic differences between it and common-law
`property are relevant considerations in deciding whether the right is property under the
`federal fraud statutes”).
`The aforementioned cases demonstrate that the traditional recognition rule is
`ultimately a creature of the doctrine of lenity arising out of constitutional principles of fair
`notice and due process. See McNally, 483 U.S. at 359-60. The rule of lenity is based on the
`premise that the citizen is entitled to fair notice of what conduct may give rise to
`punishment. United States v. Lanier, 520 U.S. 259, 267 (1997). Lenity—which requires the
`court to adopt a narrowing construction—is what allows an otherwise ambiguous statute to
`stand, enables courts to “preserve the statute without transgressing constitutional
`limitations,” and is necessary precisely where “reading the statute to proscribe a wider range
`of offensive conduct” could “raise the due process concerns underlying the vagueness
`doctrine.” See Skilling v. United States, 561 U.S. 358, 408-09 (2010). When it comes to
`intangible interests and federal fraud statutes, the Supreme Court has signaled time and time
`again that the proper way to apply the rule of lenity and avoid constitutional transgressions is
`to require that the “object” of the fraud be a traditionally recognized property interest.
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`B. The Ninth Circuit Has Applied the Traditional Recognition Rule
`The traditional recognition rule is also the law in the Ninth Circuit. While the Ninth
`Circuit arguably has not made a concise, quotable statement of law endorsing the traditional
`recognition rule, it has applied it in at least two cases with which the Court is already
`familiar: United States v. Bruchhausen, 977 F.2d 464 (9th Cir. 1992) and United States v. Ali, 620
`F.3d 1062 (9th Cir. 2010).
`In Bruchhausen, the court evaluated two intangible interests: (1) the United States
`government’s potential interest in forfeiting technology sold in violation of certain statutes,
`and (2) the right of manufacturers to control the ultimate destination of their products, even
`after they were sold. Id. at 467. The court held that neither were “property” for purposes of
`the wire fraud statute. With respect to the government’s potential forfeiture interest, the
`court found it was “too ethereal to fall within the protections” of the federal fraud statutes.
`Id. As for the manufacturers’ right to control their products’ destination, the court rejected
`the government’s attempt to analogize that interest to the confidential business information
`in Carpenter: “Carpenter relied in part on the fact that ‘[c]onfidential business information has
`long been recognized as property.’ There is no comparable understanding that a
`manufacturer has a property interest in the destination of its products.” Id. at 468 (citation
`omitted) (emphasis added). The court noted that its “decision is colored by the rule of
`lenity,” and that “in the absence of definite language, we must conclude that the
`manufacturers’ interest cannot support a criminal prosecution.” Id. Thus, while the court did
`not come out and say, “The object of the alleged scheme or artifice to defraud must be a
`traditionally recognized property right,” it applied that approach, consistent with the
`decisions made by the Supreme Court and the Second, Third, and Sixth Circuits, supra.
`Importantly, the Ninth Circuit held that this defect meant the “indictment was insufficient
`as a matter of law,” removing any doubt as to whether the property question can (and
`must) be resolved pretrial. Id. (emphasis added).
`The Government continues to mischaracterize Ali (and Pasquantino) as rejecting the
`traditional recognition rule. In fact, the opposite is true. The intangible interest at issue in Ali
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`was Microsoft’s right to be paid the full commercial price for its products. 620 F.3d at 1067.
`The defendants in that case argued that only “traditionally recognized forms of property”
`constitute property under the wire fraud statutes, and that Microsoft’s right to payment was
`not a traditionally recognized form of property. Id. at 1068. The Ninth Circuit relied on
`Pasquantino to reject the notion that an entitlement to payment legally due was not a
`traditionally recognized property right. Id. The court was careful to note that Microsoft’s
`Authorized Education Reseller (“AER”) agreement expressly provided that an AER that
`sells software in violation of the agreement would be liable to Microsoft for “the difference
`between [Microsoft’s] estimated retail price for AE product and . . . commercial versions of
`the same products.” Id. at 1065. The court found this legally-owed right to full payment
`analogous to “Canada’s right to uncollected excise taxes” in Pasquantino. Id. at 1067. Thus,
`the court could not accept the defendants’ argument that “the right to be paid is not
`traditionally recognized as a form of property.” Id. at 1068. Far from disavowing the
`traditional recognition rule, Ali actually applied it by finding Pasquantino controlling.
`C. Whether An Intangible Interest Is “Something of Value” or “Exclusive”
`Is Not Dispositive—the Critical Question Is Whether It Has Long Been
`Recognized As Property
`The Government has at various times argued that the right to use IP netblocks is
`“property” because it is “something of value” or carries with it a right of “exclusivity.” Set
`aside the fact that these characteristics are not alleged in the Indictment and will be disputed
`at trial. Even assuming that these arguments are true, the Government has cited no case, and
`the defense can find none, that has held that value or exclusivity alone—absent traditional
`recognition as property—are sufficient to make something “property.” It is true that, in the
`course of describing how an interest has been traditionally treated as property, courts have
`commented on the fact that the interest was “something of value” or “exclusive.” See, e.g.,
`Pasquantino, 544 U.S. at 355 (right to payment is an “entitlement to collect money from
`petitioners, the possession of which is ‘something of value’”) (citation omitted); Carpenter,
`484 U.S. 19, 26-27 (“exclusivity is an important aspect of confidential business information
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`and most private property for that matter”). But courts have also clearly held that these
`characteristics did not necessitate a finding that a particular interest was property. In Cleveland,
`for example, the Court noted that “even when tied to an expected stream of revenue, the
`State’s right of control does not create a property interest.” 531 U.S. at 23. The Court also
`expressly rejected the argument that “the intangible rights of allocation, exclusion, and
`control” were property, noting they had not “long been recognized.” Id.
`Thus, while value and exclusivity may be factors that some courts consider in
`determining whether an interest is property under common law, they are not dispositive
`when construing the word “property” in a criminal fraud statute. The only relevant inquiry
`under fair notice and constitutional due process requirements is whether the interest has long
`been treated as property. Accordingly, courts have found that intangible interests were not
`property, despite their valuable or exclusive nature. See, e.g., Dowling v. United States, 473 U.S.
`207, 216-17 (1985) (copyright not “property,” even though copyright holders hold a “bundle
`of exclusive rights”); Henry, 29 F.3d at 115 (fair bidding process “was thus valuable to [the
`banks], but it is not a traditionally recognized, enforceable property right”).
`II. During 2010 to 2014, the Relevant Time Period, IP Netblocks Had Not Been
`“Traditionally Recognized” As Property
` The Court further asked the parties to brief “whether or not it would have been
`traditionally recognized, in 2010 through 2014, that netblocks, either legacy or non-legacy,
`were recognized by the law and enforced by the law as property rights.” (10/1/20 Trans.
`19:19-24.) This is the appropriate inquiry under fair notice and constitutional due process
`principles—the “touchstone” of which is “whether the statute, either standing alone or as
`construed, made it reasonably clear at the relevant time that the defendant’s conduct was
`criminal.” See United States v. Lanier, 520 U.S. at 266-67 (emphasis added).
`There are no known legal treatises that commented on the property-status of IP
`netblocks prior to 2014. As for the cases that dealt with IP netblocks during that time, the
`defense has only been able to find three: Kremen v. Cohen, No. C 98-20718, 2006 WL 8443063
`(N.D.Cal. Dec. 20, 2006), In re Nortel Networks Inc., Case No. 09-10138-CCS, Dkt. 5315
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