Case 3:18-cr-04683-GPC Document 232 Filed 02/25/21 PageID.2381 Page 1 of 26
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`UNITED STATES DISTRICT COURT
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`SOUTHERN DISTRICT OF CALIFORNIA
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`UNITED STATES OF AMERICA,
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`v.
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`JACOB BYCHAK, et al.,
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`Plaintiff,
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`Defendants.
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` Case No.: 18-CR-4683-GPC
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`ORDER DENYING MOTION TO
`DISMISS WIRE FRAUD COUNTS
`FOR VIOLATING THE FIFTH
`AMENDMENT DUE PROCESS AND
`SIXTH AMENDMENT FAIR
`NOTICE PROTECTIONS
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`[ECF No. 169.]
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`On May 28, 2020, Defendants Jacob Bychak, Mark Manoogian, Mohammed
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`Abdul Qayyum, and Petr Pacas (“Defendants”) filed a Joint Motion to Dismiss Wire
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`Fraud Counts for Violating the Fifth Amendment Due Process and Sixth Amendment
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`Fair Notice Protections. (ECF No. 169.) On June 8, 2020, the Government filed its
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`original response, and on November 23, 2020 filed a further response. (ECF Nos. 176,
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`222.) Defendants filed its reply on June 22, 2020 and sur-replies on November 2, 2020
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`and December 7, 2020. (ECF Nos. 188, 221, 223.) Hearings on the motion were held on
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`July 16, October 1, and December 17, 2020. (ECF Nos. 202, 214 and 225.)
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`The pending motion asserts that (1) the wire fraud statute is constitutionally vague
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`Case 3:18-cr-04683-GPC Document 232 Filed 02/25/21 PageID.2382 Page 2 of 26
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`as applied to the allegations contained in the Indictment; (2) IP addresses are not
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`“property” in light of properly considered extrinsic, preliminary facts, and (3) the
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`Indictment fails to recite the essential element of “property” of the charged offense.
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`Upon reviewing the papers, the applicable law and the arguments of counsel, the
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`Court concludes that (1) an “as-applied” challenge is confined to an attack based upon
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`facts developed at trial and is therefore premature at this time; (2) Federal Rule of
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`Criminal Procedure 12(b) does not allow the Court to decide whether IP addresses
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`qualify as “property” prior to trial because the question relates to an element that must be
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`decided by the trier of fact; and (3) the Indictment sufficiently recites the essential
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`element of “property”, provides sufficient specificity to allege the elements of the wire
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`fraud and permits the Defendants the opportunity to prepare a defense. As such, the
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`motion to dismiss is DENIED without prejudice for Defendants to renew their motion in
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`the form of a Rule 29 motion at trial.
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`I.
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`BACKGROUND
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`A. The Indictment
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`On October 31, 2018, the Government filed the Indictment which charges that,
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`from December 2010 to September 2014, Defendants conspired with each other to
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`commit wire fraud and felony electronic mail fraud. (ECF No. 1.) Specifically,
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`Defendants are each charged with one count of conspiracy to commit offenses against the
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`United States, specifically, wire fraud, (18 U.S.C. § 1343), and electronic mail fraud, (18
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`U.S.C. §§ 1037(a)(5) and (b)(2)(C)), in violation of 18 U.S.C. § 371 and 18 U.S.C. § 2;
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`four counts of wire fraud, in violation of 18 U.S.C. § 1343; and five counts of electronic
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`mail fraud, in violation of 18 U.S.C. §§ 1037(a)(5) and (b)(2)(C), and 18 U.S.C. § 2. (Id.)
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`As to the conspiracy, the Indictment charges three “objects of the conspiracy”:
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`identifying or paying to identify “blocks of Internet Protocol (IP) addresses called
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`‘netblocks’ that were registered to others and appeared to be inactive,” creating and
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`sending “letters to Internet hosting companies fraudulently stating the letter bearer had
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`Case 3:18-cr-04683-GPC Document 232 Filed 02/25/21 PageID.2383 Page 3 of 26
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`been authorized by the registrants of the inactive IP addresses to use the IP addresses,”
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`and using “the fraudulently acquired IP addresses to send commercial email (‘spam’)
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`messages.” (Id. at ¶ 2(a)-(c).)
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`The Indictment sets out two overt acts that relate to the conspiracy. First, the
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`Indictment charges that, “[o]n or about August 25, 2013, in San Diego, California
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`defendant MOHAMMED ABDUL QAYYUM created a letter which fraudulently
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`purported to authorize the use of a netblock not registered to the conspirators and emailed
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`the letter to defendants MARK MANOOGIAN and JACOB BYCHAK.” (Id. at ¶ 3(a).)
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`Second, the Indictment charges that “[o]n or about January 13, 2014, in San Diego,
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`QAYYUM emailed BYCHAK, MANOOGIAN, and others that he was preparing
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`network connections and would advise when a netblock purchased from a company
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`employing Daniel Dye was ready to send commercial emails.” (Id. at ¶ 3(b).)
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`As to the wire fraud counts, the Indictment charges that Defendants “devised a
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`material scheme and artifice to defraud, and for obtaining money and property by means
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`of materially false and fraudulent pretenses, representations and promises, did . . .
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`transmit and cause to be transmitted by means of wire communication in interstate
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`commerce the writings, signs and signals below for purposes of executing the scheme and
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`artifice to defraud.” (Id. at ¶ 4.) The Indictment alleges four acts in furtherance of the
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`scheme, namely, that Defendants (a) “searched for IP addresses registered to third parties
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`that appeared to be inactive;” (b) “created and sent letters to Internet hosting companies
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`fraudulently making it appear that the registrant of the IP addresses had authorized the
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`defendants’ use of the IP addresses;” (c) “used the IP addresses to send commercial email
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`messages knowing they did not obtain control of the IP addresses from the true registrant
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`or the legitimate successor in interest;” and (d) “concealed their use of the IP addresses to
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`send ‘spam’ emails by using business names, post office boxes, and email addresses
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`under different names.” (Id. at ¶¶ 5–8.)
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`The Indictment charges four interstate wire communications:
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`Case 3:18-cr-04683-GPC Document 232 Filed 02/25/21 PageID.2384 Page 4 of 26
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`1-9-14
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`Description
`To
`From
`Count Date
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`11-11-13 San Diego Oklahoma PayPal wire transfer of $600 for
`hosting of ECT netblock.
`San Diego Oklahoma PayPal wire transfer of $600 for
`hosting of Telalink netblock.
`San Diego Oklahoma PayPal wire transfer of $600 for
`hosting of MooreSolutions netblock.
`San Diego Oklahoma PayPal wire transfer of $600 for
`hosting of Telalink netblock.
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`2-28-14
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`3-10-14
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`(Id. at ¶ 8.) The Indictment further charges five counts of electronic mail fraud and
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`criminal forfeiture allegations not at issue here. (Id. at ¶¶ 9–14.)
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`B.
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`Prior Motion to Dismiss
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`Previously, on January 23, 2020, Defendants had filed a motion to dismiss counts
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`two through five of the Indictment charging four instances of wire fraud in violation of
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`18 U.S.C. §1343. (ECF No. 149.) In the earlier motion, Defendants argued that IP
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`addresses are not “property” as the term is used under the wire fraud statute and that, in
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`the alternative, the IP addresses were not obtained by means of a material
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`misrepresentation directed at victims of the scheme. (Id.) Defendants also argued that the
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`Court should strike all wire fraud allegations in Count 1 of the Indictment for failure to
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`state a wire fraud offense and lack of specificity. (Id.) On April 8, 2020, the Court entered
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`an order denying the motion. (ECF No. 160.) Among other things, the Court found that it
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`“lack[ed] the factual record necessary to determine whether IP addresses assigned prior to
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`creation of the American Registry of Internet Numbers (ARIN) on December 22, 1997
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`are ‘property’ for the purposes of the wire fraud statute, 18 U.S.C. § 1343.” (Id. at 2.)
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`II. LEGAL STANDARD
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`Federal Rule of Criminal Procedure (“Rule”) 7 requires that an indictment contain
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`a “plain, concise, and definite written statement of the essential facts constituting the
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`offense charged.” Fed. R. Crim. P. 7(c)(1). An indictment must also “furnish the
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`defendant with a sufficient description of the charges against him to enable him to
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`Case 3:18-cr-04683-GPC Document 232 Filed 02/25/21 PageID.2385 Page 5 of 26
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`prepare his defense, to ensure that the defendant is prosecuted on the basis of facts
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`presented to the grand jury, to enable him to plead jeopardy against a later prosecution,
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`and to inform the court of the facts alleged so that it can determine the sufficiency of the
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`charge.” United States v. Cecil, 608 F.2d 1294, 1297 (9th Cir. 1979). Whether a statute
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`gives fair notice is a question of law.
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`Under Rule 12, a defendant may move to dismiss an indictment on the ground that
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`the indictment “fail[s] to state an offense.” Fed. R. Crim. P. 12(b)(3)(B)(v). An
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`indictment’s failure to detail each element of the charged offense generally constitutes a
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`“fatal defect.” United States v. Keith, 605 F.2d 462, 464 (9th Cir. 1979); United States v.
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`Holmes, No. 5:18-CR-00258-EJD, 2020 WL 666563, at *12 (N.D. Cal. Feb. 11, 2020)
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`(quoting United States v. Carroll, No. CR-13-0566 EMC, 2015 WL 2251206, at *1 (N.D.
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`Cal. May 13, 2015) (“An indictment fails to state an offense if it does not allege facts
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`which, if proven, would constitute a violation of the statute, rule, regulation, or other
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`provision of law that the defendant is alleged to have violated.”)).
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`On a motion to dismiss an indictment, a court must accept the allegations in the
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`indictment as true and “analyz[e] whether a cognizable offense has been charged.”
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`United States v. Boren, 278 F.3d 911, 914 (9th Cir. 2002). “In ruling on a pre-trial motion
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`to dismiss an indictment for failure to state an offense, the district court is bound by the
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`four corners of the indictment.” Id.
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`Rule 12(b)(1) provides that “[a] party may raise by pretrial motion any defense,
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`objection, or request that the court can determine without a trial on the merits.” Fed. R.
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`Crim. P. 12(b)(1). A motion to dismiss is generally “capable of determination” before
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`trial “if it involves questions of law rather than fact.” United States v. Shortt Accountancy
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`Corp., 785 F.2d 1448, 1452 (9th Cir. 1986) (citations and quotations omitted). “[A]
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`district court may make preliminary findings of fact necessary to decide the questions of
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`law presented by pre-trial motions so long as the court’s findings on the motion do not
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`Case 3:18-cr-04683-GPC Document 232 Filed 02/25/21 PageID.2386 Page 6 of 26
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`invade the province of the ultimate finder of fact.” Id. (citations omitted). In Shortt, the
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`Ninth Circuit stated:
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`As the ultimate finder of fact is concerned with the general issue of guilt, a
`motion requiring factual determinations may be decided before trial if trial
`of the facts surrounding the commission of the alleged offense would be of
`no assistance in determining the validity of the defense. Under this standard,
`the district court must decide the issue . . . if it is entirely segregable from
`the evidence to be presented at trial. If the pretrial claim is substantially
`founded upon and intertwined with evidence concerning the alleged offense,
`the motion falls within the province of the ultimate finder of fact and must
`be deferred.
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`Id. (internal quotations and citations omitted). Generally, Rule 12(b) motions are
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`appropriate to consider “such matters as former jeopardy, former conviction, former
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`acquittal, statute of limitations, immunity, [and] lack of jurisdiction.” United States v.
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`Smith, 866 F.2d 1092, 1096 n. 3 (9th Cir. 1989).
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`III. JUDICIAL NOTICE
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`A. The Court Denies in Part and Grants in Part the Motion to Take
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`Judicial Notice
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`Federal Rule of Evidence 201 provides that a court “may judicially notice a fact
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`that is not subject to reasonable dispute,” either because it is (1) “generally known within
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`the trial court’s territorial jurisdiction” or (2) “can be accurately and readily determined
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`from sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b). A
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`court can therefore “take judicial notice of matters of public record,” but “cannot take
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`judicial notice of disputed facts contained in such public records.” Lee v. City of Los
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`Angeles, 250 F.3d 668, 689 (9th Cir. 2001); Khoja v. Orexigen Therapeutics, Inc., 899
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`F.3d 988, 999 (9th Cir. 2018), cert. denied sub nom. Hagan v. Khoja, 139 S. Ct. 2615
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`(2019).
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` “Just because [a] document itself is susceptible to judicial notice does not mean
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`that every assertion of fact within that document is judicially noticeable for its truth.”
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`Khoja, 399 F.3d at 999. That is true of court documents. See GemCap Lending, LLC v.
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`Quarles & Brady, LLP, 269 F. Supp. 3d 1007, 1019 (C.D. Cal. 2017), aff’d sub nom.
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`GemCap Lending I, LLC v. Quarles & Brady, LLP, 787 F. App’x 369 (9th Cir. 2019)
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`(finding that a court may “take judicial notice of the existence of another court’s opinion
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`or of the filing of pleadings in related proceedings; the Court may not, however, accept as
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`true the facts found or alleged in such documents.”). It is also true of other government
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`documents. See In re UnumProvident Corp. Sec. Litig., 396 F. Supp. 2d 858, 875–76
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`(E.D. Tenn. 2005) (taking judicial notice of forms filed with the SEC, but noting “[i]t
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`would be improper for the Court to rely upon these documents to determine disputed
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`factual issues and by taking judicial notice of these documents at this time the Court in no
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`way intends to make any determination as to the truth of any of the facts alleged or
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`otherwise asserted in the documents themselves”).
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`A court therefore must identify what facts it is judicially noticing from a document.
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`Id. As a result, the requesting party should accordingly identify what facts within the
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`document it seeks to have judicially noticed. See Capaci v. Sports Research Corp., 445
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`F. Supp. 3d 607, 617 (C.D. Cal. 2020) (“Because defendant does not identify which facts
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`within the exhibits it asks the court to judicially notice nor does it explain why the court
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`can judicially notice those facts, the court denies defendant’s request for judicial
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`notice.”); Riley v. Chopra, No. CV 18-3371 FMO (SKx), 2020 WL 5217154, at *2 (C.D.
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`Cal. June 19, 2020) (finding requesting party’s arguments “unpersuasive” given party’s
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`failure to identify what facts were to be judicially noticed).
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`Defendants have moved the Court to take judicial notice of nine documents that
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`relate to IP addresses, netblocks, the right to use and control assigned netblocks and the
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`American Registry of Internet Numbers (ARIN). The Court DENIES in part and
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`GRANTS in part the motion as described below. However, the Court DECLINES to take
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`judicial notice of any of the documents to determine disputed factual issues because (1)
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`the documents are not all presumed to be authentic as government documents or matters
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`of public record, and because (2) even if the authenticity of the documents was clear, the
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`documents’ contents are disputed such that judicial notice of the facts therein is improper.
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`1.
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`Exs. A, B, C: Excerpts of ARIN Registration Service Agreements
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`(“RSA”) templates dated March 10, 2011, June 18, 2004, and
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`October 31, 2007.
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`Defendants argue that Exhibits A, B, and C are “generally known, especially in the
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`internet marketing community,” because “ARIN is the controlling authority when it
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`comes to the administration of Internet Protocol addresses.” (ECF No. 169-3 at 4.)
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`The Government responds that the “Court cannot judicially notice the RSA
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`templates because the truth of their contents, particularly as it relates to property rights, is
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`disputable.” (ECF No. 176 at 22.) The Government also contends that the Court cannot
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`take judicial notice merely because ARIN drafted the documents since “ARIN did not
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`and cannot define ‘property’ for purposes of § 1343.” (Id. at 23.)
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`As a general matter, a court can take notice of a contract if three factors are
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`satisfied: that the subject contract (1) is between the parties, (2) a necessary part of the
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`complaint, and (3) is authentic. Daniels v. United States, No. 3:16-CV-02077-BTM, 2017
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`WL 3478765, at *4 (S.D. Cal. Aug. 11, 2017); see also Parrino v. FHP, Inc., 146 F.3d
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`699, 706 (9th Cir. 1998); Scott v. Bluegreen Vacations Unlimited, Inc, No. 19-CV-
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`01807-AWI-JLT, 2020 WL 3296190, at *4 (E.D. Cal. June 18, 2020); Neilson v. Union
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`Bank of California, N.A., 290 F. Supp. 2d 1101, 1114 (C.D. Cal. 2003).
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`Even where these factors are not spelled out separately, courts assess the contract’s
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`authenticity and reliability. For example, in Infinite Financial Solutions, Inc., the court
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`took judicial notice of 11 documents, including various contracts. Infinite Fin. Sols., Inc.
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`v. Strukmyer, LLC, No. 3:13-CV-00466-HDM, 2014 WL 12598866, at *2 (D. Nev. Jan.
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`28, 2014). The Court expressly noted that the documents were contracts “between the
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`parties,” were largely “matters of public record,” and were not “subject to reasonable
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`dispute.” Id., see also Hall v. Washington Mut. Bank, No. CV-10-01606-DMG, 2010 WL
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`11549664, at *1 n.2 (C.D. Cal. July 7, 2010) (court took notice of a Purchase &
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`Assumption Agreement because one of the parties to the agreement was a government
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`entity, and thus treated the contract as a “matter of public record.”).
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`Thus, private entity contracts are not presumed to be authentic or matters of public
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`record. However, Defendants point out that the standard, form service contracts used by
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`ARIN are well known to the community, and thus may be considered sufficiently reliable
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`for judicial notice. However, the Government asserts that the truth of the RSAs’ contents
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`are “disputable.” (ECF No. 176 at 22.) Also, the contracts are not between the Parties,
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`but rather sample contracts used by a third party in managing other third parties’
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`relationships to IP addresses/netblocks. And, the RSAs are not mentioned or relied upon
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`in the complaint, as would be required to incorporate them by reference. As such, the
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`Court cannot take judicial notice of these documents.
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`2.
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`Ex. D: Federal Communications Commission (“FCC”) Staff
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`Working Paper.
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`Defendants argue that Exhibit D is a “publication[] from [a] federal agenc[y]” and
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`thus “contain[s] facts that are accurately and readily determined from sources whose
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`accuracy cannot reasonably be questioned.” (ECF No. 169-3 at 5.)
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`Under Rule 201, “government documents available from reliable sources on the
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`Internet, such as websites run by governmental agencies” generally fall into this category
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`as sufficiently authentic and well-known. Gerritsen v. Warner Bros. Entm’t Inc., 112 F.
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`Supp. 3d 1011, 1033 (C.D. Cal. 2015) (citations and brackets omitted). Government
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`documents, more generally, are “considered not to be subject to reasonable dispute.”
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`L’Garde, Inc. v. Raytheon Space & Airborne Sys., 805 F. Supp. 2d 932, 937–38 (C.D.
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`Cal. 2011) (internal quotation marks omitted); see also Daniels–Hall v. Nat’l Education
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`Ass’n, 629 F.3d 992, 999 (9th Cir. 2010) (taking judicial notice of information on the
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`websites of two school districts because they were government entities).
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`However, even with these cases, the same limitation applies that, to be noticeable,
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`the information in the sources cannot be reasonably disputed. See Daniels-Hall, 629 F.3d
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`at 998–99 (expressly noting that “neither party disputes the authenticity of the web sites
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`or the accuracy of the information displayed therein”). Here, the Court can take notice of
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`the Working Paper for the undisputed facts that it exists and contains whatever it states.
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`However, the Court cannot take judicial notice of what it states as fact because the
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`contents of the Working Paper are disputed. Moreover, the paper is especially unreliable
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`given its own admonition to the reader that its contents are only “preliminary materials
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`circulated to stimulate discussion and critical comment” and “do not necessarily reflect
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`the view of the FCC.” (ECF No. 176 at 23); Barrera v. Comcast Holdings Corp., No. 14-
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`CV-00343-TEH, 2014 WL 1942829, at *2 (N.D. Cal. May 12, 2014) (taking judicial
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`notice of two petitions before the FCC and noting what is said in those petitions, but not
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`expressly accepting their contents as fact).
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`3.
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`Exs. E & F: Articles in Business Law Today and Bloomberg BNA
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`Defendants argue that Exhibits E and F are generally well known because they are
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`“articles written by ARIN in third-party publications regarding IP addresses.” (ECF No.
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`169-3 at 4.) The Government responds that contents of these news articles “are neither
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`generally known nor from sources whose accuracy cannot be questioned.” (ECF No. 176
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`at 23.) Such publications can establish “what was in the public realm at the time but not
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`the truthfulness of its fact.” (ECF No. 176 at 23.) Both articles also provide legal analysis
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`not proper for judicial notice. (Id.)
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`“Courts may take judicial notice of publications introduced to ‘indicate what was
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`in the public realm at the time, not whether the contents of those articles were in fact
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`true.’” Von Saher v. Norton Simon Museum of Art at Pasadena, 592 F.3d 954, 960 (9th
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`Cir. 2010) (quoting Premier Growth Fund v. Alliance Capital Mgmt., 435 F.3d 396, 401
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`n.15 (3d Cir. 2006)). As a result, the judicial notice of publications is often used by
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`Courts for the purpose of establishing inquiry notice, and not to rely on a fact stated in the
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`publication for its truth value. See In re Am. Funds Sec. Litig., 556 F. Supp. 2d 1100,
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`1106 (C.D. Cal. 2008), vacated and remanded on other grounds, 395 F. App’x 485 (9th
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`Cir. 2010) (taking notice of several news articles for the purpose of finding that they put a
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`party on notice of a fraudulent scheme, not for the truth of that scheme); Lane v. Page,
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`649 F. Supp. 2d 1256, 1301 (D.N.M. 2009) (taking notice of articles on issue whether
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`inquiry notice was triggered but not the truth of their notices).
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`Consequently, the Court can take notice of the Bloomberg BNA and Business Law
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`Today articles (i.e., that they exist, were written by a specific person, and offer a specific
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`perspective) and then refer to what they say. But, it cannot rely on the contents of the
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`articles for any factual determination. Also, it is of no consequence that ARIN has written
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`them because ARIN is not a government body, despite its close relationship to the
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`Government and history. And, again, the documents’ contents are disputed.
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`4.
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`Ex. G: Excerpt of letter from National Telecommunications and
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`Information Administration (“NTIA”)
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`Defendants argue that Exhibit G is a “publication[] from [a] federal agenc[y]” and
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`thus “contain[s] facts that are accurately and readily determined from sources whose
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`accuracy cannot reasonably be questioned.” (ECF No. 169-3 at 5.)
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`In sum, a document from a trusted source like a government website can be
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`noticed, but its contents cannot be noticed if disputed. See Daniels–Hall, 629 F.3d at 999.
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`Here, the Court has the authority to take judicial notice of the NTIA letter because it was
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`posted to a government website. Id.
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`The Government asserts that the Court cannot take judicial notice of the NTIA
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`Letter’s contents as true because they are disputed. (ECF No. 176 at 23.) The
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`Government asserts that the letter is merely a “blog posted on [NTIA] website from the
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`NTIA Administrator describing the government’s position on the development of internet
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`technical standards and policies.” (Id.) Further, it points out that its contents reflect only
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`the opinion of the agency’s administrator at the time, and not that of the Government.
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`(Id.) Hence, the “validity of its contents is disputable, and it does not constitute an
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`admission of government record.” (Id.) The Court agrees. Cf. Patel v. Parnes, 253 F.R.D.
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`531, 546 (C.D. Cal. 2008) (“It is appropriate for the court to take judicial notice of the
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`content of the SEC Forms 4 and the fact that they were filed with the agency. The truth of
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`the content, and the inferences properly drawn from them, however, is not a proper
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`subject of judicial notice under Rule 201.”) (also discussing press releases).
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`5.
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`Ex. H: Excerpt of a letter from Canada’s Department of Industry.
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`Defendants offer Exhibit H as a “a letter from Canada’s Department of Industry
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`regarding Canada’s position on whether IP addresses are property.” (ECF No. 169-3 at
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`5.) It “contain[s] facts that are accurately and readily determined from sources whose
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`accuracy cannot reasonably be questioned.” (Id.)
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`The Government contends that the Court cannot take judicial notice of the
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`Canadian Letter on Defendants’ theory because (1) it does not relate to the parties, (2)
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`Defendants’ “conflate the Court’s ability to take judicial notice of the fact that such
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`documents were publicly filed with the ability to take judicial notice of the facts
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`contained therein,” and (3) the “mere fact of the public filing of [this] document[] does
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`not change that [its] contents are not generally known or from a source that cannot
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`reasonable be questioned.” (ECF No. 176 at 24.)
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`Here, the Government’s second argument is on point. The Court simply cannot
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`take notice of the facts contained in a foreign government’s document like this, though it
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`can notice the existence, date, name, and other adjudicative facts concerning the
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`document. See Khoja, 899 F.3d at 1000–02 (finding judicial notice of facts contained
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`within European Medical Agency report was an abuse of discretion and allowing instead
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`judicial notice of the date on which a foreign application was filed); Color Switch LLC v.
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`Fortafy Games DMCC, 377 F. Supp. 3d 1075, 1089 n.6 (E.D. Cal. 2019) (taking judicial
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`notice of foreign court documents and public records from a foreign government “for the
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`fact of their filing, but not for the truth of the matters asserted therein.”).
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`6.
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`Ex. I: Excerpt from a Blackline Amended Purchase Agreement
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`filed by the parties in In re Nortel Networks Inc., Case No. 09-
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`10138-CCS (Bankr. D. Del.)
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`Defendants argue that Exhibit I “is subject to judicial notice because it is a matter
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`of public record that was filed on PACER.” (ECF No. 169-3 at 5.)
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`“A court may take judicial notice of undisputed matters of public record, which
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`may include court records available through PACER.” United States v. Raygoza-Garcia,
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`902 F.3d 994, 1001 (9th Cir. 2018); Irvin v. Madrid, No. CV-16-1198-DMG, 2016 WL
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`9132877, at *1 (C.D. Cal. Dec. 8, 2016) (taking notice of courts’ docket and filings).
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`However, again, the Court is not permitted to take notice of facts in PACER documents
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`where they are “neither ‘generally known within the trial court’s territorial jurisdiction’
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`nor ‘can [it] be accurately and readily determined from sources whose accuracy cannot be
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`reasonably questioned’ as required under Federal Rule of Evidence 201(b).” Raygoza-
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`Garcia, 902 F.3d at 1001.
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`Hence, even though the Court may be able to take notice of the Purchase
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`Agreement document filed in In re Nortel Networks Inc. as sufficiently authentic, the
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`Court cannot assume the facts in the Agreement are sufficiently accurate or true. See
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`Dimas v. JPMorgan Chase Bank, N.A., No. 17-CV-05205-LHK, 2018 WL 809508, at *7
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`(N.D. Cal. Feb. 9, 2018) (looking to PACER and taking judicial notice only of the fact
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`that a party had filed for bankruptcy). The rules governing judicial notice of a contract
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`would also seem to apply. See supra Section III(A)(1) (discussing RSAs).
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`For the reasons stated above, the Court GRANTS in part and DENIES in part the
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`motion for judicial notice. As to the requests that are granted, the Court finds that it will
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`only notice the existence of the document but will not accept as facts the information
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`contained therein. The Court DECLINES to take judicial notice of any of the documents
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`to determine disputed factual issues documents because even if the authenticity of the
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`documents was clear, the documents’ contents are disputed such that judicial notice of the
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`facts therein is improper.
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`IV. LEGAL DISCUSSION
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` The Indictment alleges that Defendants used the wires in a scheme to defraud the
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`registrant of IP addresses when they “used the IP addresses to send commercial messages
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`knowing they did not obtain control of the IP addresses from the true registrant or
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`legitimate successor in interest.” (ECF No. 1, Indictment ¶¶ 5-7.) Defendants move to
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`dismiss the Indictment arguing it is constitutionally defective because it fails to allege a
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`fraud involving “property,” denies them fair notice that their conduct constituted wire
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`fraud and is void for vagueness. (ECF No. 169-1 at 6-7.) Further, Defendants claim that
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`they are entitled to have their motion to dismiss granted before trial because the issue
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`involves an issue of law and the Court may make preliminary findings of fact necessary
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`to decide questions of law. Id. at 24-27.
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`The Court finds that the indictment sufficiently details that IP netblocks are
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`“property.” The question whether IP netblocks are “property” is one that requires the
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`trier of fact to determine whether netblocks constituted “something of value” at the time
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`of the alleged offense. Further, given the Court’s rulings on Defendants’ requests for
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`judicial notice, there is a lack of evidence or undisputed allegations in the Indictment for
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`the Court to conclude that the netblocks are not “property.” Moreover, even if the Court
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`were to judicially notice the nine exhibits offered by Defendants, the contested issue is
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`not segregable from the evidence to be presented at trial. In other words, the Defendants’
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`motion raises an issue that is substantially founded upon and intertwined with evidence
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`concerning the alleged offense and thus falls within the province of the ju