Case 3:18-cr-04683-GPC Document 241 Filed 06/17/21 PageID.2490 Page 1 of 12
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`
`RANDY S. GROSSMAN
`Acting United States Attorney
`MELANIE K. PIERSON
`Assistant U.S. Attorney
`California Bar No.: 112520
`Office of the U.S. Attorney
`880 Front Street, Room 6293
`San Diego, CA 92101
`Tel: (619) 546-7976
`Fax: (619) 546-0631
`Email:Melanie.Pierson@usdoj.gov
`
`Attorneys for the United States
`
`UNITED STATES DISTRICT COURT
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`SOUTHERN DISTRICT OF CALIFORNIA
`
`UNITED STATES OF AMERICA,
`Case No.: 18cr4683-GPC
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`GOVERNMENT’S RESPONSE IN
`
`Plaintiff,
`OPPOSITION TO DEFENDANT’S
`
`MOTION FOR CONTINUANCE
`v.
`
`OF THE TRIAL DATE
`
`JACOB BYCHAK (1),
`MARK MANOOGIAN (2),
`ABDUL MOHAMMED QAYYUM (3), and
`PETR PACAS (4),
`
`
`Defendants.
`
`
`I.
`INTRODUCTION
`The United States objects to any continuance of the trial date. In January 2021, this
`Court set trial for November 30, 2021. At that time, defense counsel did not have a
`conflicting trial date in Arizona, and this Court informed defense counsel that it would not
`delay trial in this now three-year-old case for the potential of a trial date in the District of
`Arizona. Defense counsel now seeks a continuance based solely on a scheduling conflict it
`created after this Court set the Bychak November 30, 2021 trial date. Defense counsel filed
`multiple documents in the District of Arizona requesting a trial date in the Arizona case. In
`those filings, defense counsel did not alert the District of Arizona Court about the Bychak
`November 30, 2021 trial date. In fact, defense counsel opposed the government’s request
`in the District of Arizona for an earlier trial date that could have avoided this conflict—
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`citing counsel’s prepaid vacation—and requested a week-long recess in the Arizona trial
`(exacerbating any potential conflict) to accommodate counsel’s wedding. Even after
`creating this alleged conflict, defense counsel waited four months before filing the instant
`motion to alert this Court and, in that time, appeared to have allowed multiple additional
`trials to be set leading them to seek an even longer delay than originally requested. In sum,
`defense counsel chose not to inform the District of Arizona of the Bychak November 30,
`2021 trial date in their briefing, allowed a conflicting date to be set, at least in part, to
`accommodate personal commitments of defense counsel in that case, and then waited four
`months to tell anyone involved in this case.
`This Court, the government, and the witnesses should not be prejudiced by defense
`counsel’s choices in setting a trial date in Arizona. The government will suffer great
`prejudice from a continuance, as several of the victim witnesses have health issues that
`may cause their testimony to be lost, and considerable resources have been expended
`serving subpoenas on 25 witnesses. Those witnesses have begun making arrangements
`during the holiday season to appear before this Court to present testimony. Likewise, the
`public’s (and defendants’) right to a Speedy Trial should not be prejudiced by counsel’s
`choice to disregard the trial date in this case when advocating for conflicting dates in
`another district.
`Finally, whether an actual conflict exists is unclear. Government counsel in Arizona
`has advised that it anticipates trial to conclude before November 30, 2021. Even if that trial
`concludes as scheduled on December 3, 2021, the present trial should be continued for no
`more than a week to accommodate a conflict that defense counsel created.
`
`
`
`
`II.
`STATEMENT OF RELEVANT FACTS
`Procedural Posture
`A.
`On October 31, 2018, a federal grand jury in San Diego returned an indictment
`against the defendants, charging them with Conspiracy, in violation of Title 18, United
`States Code, Section 371; five counts of Electronic Mail Fraud (the “CAN-SPAM Act”),
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`Government’s Response in Opposition to Defendants’
`Motion to Continue Trial Date
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`in violation of Title 18, United States Code, Section 1037(a)(5); and four counts of Wire
`Fraud, in violation of Title 18, United States Code, Section 1343. All four defendants were
`arraigned in November 2018 and current lead counsel for each defendant made their
`appearances that same month.1
`The original motion hearing in this case was set for December 7, 2018. After a
`continuance to review discovery, a designation of the case as complex, and multiple rounds
`of substantive briefing, this Court held a final hearing on remaining substantive motions
`two years later—on December 17, 2020. At that hearing, the motions were taken under
`submission, and the court set a telephonic status hearing for January 21, 2021 and asked
`the parties to meet and confer regarding a trial date.
`B. On January 21, 2021, This Court Set a November 30, 2021 Trial Date
`On January 21, 2021, the Court held a status hearing to discuss, among other things,
`a trial date. After the parties were unable to reach agreement on a trial date, defense counsel
`asked the court to set a trial date in May of 2022, while the government requested a date in
`the fall of 2021. Defense counsel represented to the court that he and counsel for another
`defendant were participating in a criminal case in Arizona involving six defendants that
`was set for trial in April but “it looks like it is going to get kicked.” [Trans. Hrg., January
`21, 2021, p. 5.] Defense counsel further stated that “the date that was agreed upon by the
`parties if the court grants the motion – it has not yet been granted – is for it to begin in
`September, and then it would then last for about three months.” Id. p.7.2 During the status
`hearing, counsel for other defendants noted various other trial commitments, but none that
`conflicted with dates in the fall of 2021. In asking for the May 2022 trial date, defense
`counsel informed the Court that they would avoid future conflicts by informing other courts
`of this Court’s date after it was set: “when other judges say ‘I have to kick your case,’ we
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`1 Earlier this month, Ms. Rim withdrew as counsel, and Ms. Van Dyk and Mr. Patrick entered
`appearances on behalf of Defendant Pacas. However, Gary Lincenberg has remained lead counsel for
`Mr. Pacas since November 2018.
`
` Government counsel in the Arizona case opposed the Arizona defendants’ request to continue the April
`2021 trial to September 2021, instead recommending an August 2021 trial date.
`3
`Government’s Response in Opposition to Defendants’
`18cr4683-GPC
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`Motion to Continue Trial Date
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`can tell the judge, ‘No, May of 2022 doesn’t work. We have a trial before Judge Curiel’.”
`Id. at p.6.
`
`After hearing the arguments of the parties, the court stated, “at this point, as a starting
`point, we have to look at what has been scheduled. So, to the extent that something has
`been scheduled, I am not going to put a burden on counsel and double set. But to the extent
`what we are talking about is the possibility of scheduling trials nine, ten months from now,
`it doesn’t seem logical, rational, to operate in that manner. At this point, I would be ready
`to set this case for trial in October so we can get this out of the way.” Id. at p. 12.
`Another defense counsel then addressed the court, asking how they should respond
`to the court in Arizona if the case were set for trial in September, as the Arizona defendants
`had requested. The court asked when the motion to continue was filed, and counsel replied,
`“I think the filing date was – it was in January. It was within the last several weeks.” Id. at
`p. 13. (The docket in Arizona indicates that the Arizona motion for continuance was filed
`just two days before the instant status hearing.) The court inquired about the details of the
`Arizona trial, and then asked, “[T]o the extent that it was granted and it would start in
`September, it is expected it would finish by December?” Defense counsel responded,
`“Yes.” Id. at p. 14. After further discussion, the court stated, “At this juncture, given that
`this motion to continue has been pending for two weeks, and there’s been no action on the
`motion, I am prepared to set the matter in October.” Id. at p. 16. After further objection by
`defense counsel, the court set the trial date for November 30, 2021. Id. at p. 17.
`C. Defense Counsel Did Not Disclose Bychak’s Trial Date to the Arizona Court
`Two days before this Court set the current trial date, defense counsel filed a motion
`to continue their trial date in Arizona to September 2021. The motion was based on
`COVID-related concerns but also upon the fact that a writ of mandamus in the case was
`pending before the Ninth Circuit which might affect decisions regarding pending motions.
`See United States v. Lacey et al, 18cr422-SMB, ECF 1113. This Court then set a November
`30, 2021 trial date in the instant case. See supra.
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`Government’s Response in Opposition to Defendants’
`Motion to Continue Trial Date
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`After this Court set its trial date, defense counsel in Arizona submitted multiple
`additional filings to the United States District Judge in Arizona, Judge Brnovich, to
`continue the Arizona trial to September 2021. In the government’s opposition to continuing
`the Arizona trial, they rejected a September trial date and argued for a trial date no later
`than mid-August. None of defense counsel’s filings in the Arizona case ever mentioned the
`Bychak November 30, 2021 trial date, much less attempted to avoid creating this conflict.
`For example, four days after this Court set its trial date, defense counsel filed a
`supplemental motion for a continuance in Arizona, renewing defense counsel’s request for
`a September 2021 trial date and failing to mention the existence of the Bychak trial. Id. at
`ECF 1116. When defense counsel subsequently filed its reply brief in support of its motion
`for a September 2021 Arizona trial date, defense counsel again failed to advise Judge
`Brnovich of the Bychak trial date. Id. at ECF 1120. In their reply brief, Arizona defense
`counsel opposed the government’s request for an earlier trial date, citing multiple reasons
`that included one member of the defense team having a prepaid vacation that they would
`be “forced to cancel . . . [and] lose money” if the trial started earlier. Id. at ECF 1120 at 1.
`Defense counsel also informed Judge Brnovich that they would need a one-week recess of
`the Arizona prosecution to allow another counsel to get married. Id. Defense counsel in
`this case personally co-signed both the supplemental request for a continuance and the
`supporting reply brief, but ignored and omitted the existence of the Bychak trial date and
`the need to accommodate it despite contending that the Arizona continuance was necessary
`based on “careful consideration of counsels’ calendar[s].” Id. Judge Brnovich then held
`oral arguments on defense counsel’s motion to continue the April trial date, at which point
`defense counsel (or designated co-counsel appearing for them) was in a position to convey
`the Bychak trial date that this Court had already set and request an accommodation.3
`On February 12, 2021, Judge Brnovich scheduled trial in the District of Arizona for
`August 23, 2021. There are not any motions on the Arizona docket indicating that defense
`
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`3 Government counsel in Arizona could not recall whether defense counsel verbally advised the court at
`this hearing of the current conflict.
`Government’s Response in Opposition to Defendants’
`Motion to Continue Trial Date
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`18cr4683-GPC
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`counsel has sought to move or adjust that trial date to accommodate the Bychak November
`30, 2021 trial date.
`Four months after Judge Brnovich set that trial date, defense counsel filed the instant
`motion arguing that the Arizona trial date created an unworkable (although not
`unavoidable) conflict with this Court’s trial date.
`On June 4, 2021, government counsel in this case contacted government counsel in
`the Arizona case. Arizona counsel advised that the trial calendar allows for the case to
`conclude on December 3, 2021, and it was their belief that the case will finish before
`November 30, 2021.
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`III.
` A CONTINUANCE WOULD SEVERELY PREJUDICE THE UNITED STATES
`The Supreme Court has stated:
`Trial judges necessarily require a great deal of latitude in scheduling trials.
`Not the least of their problems is that of assembling the witnesses, lawyers,
`and jurors at the same place at the same time, and this burden counsels against
`continuances except for compelling reasons. Consequently, broad discretion
`must be granted trial courts on matters of continuances; only an unreasoning
`and arbitrary ‘insistence upon the expeditiousness in the face of a justifiable
`request for delay’ violates the right to assistance of counsel.
`Morris v. Slappy, 461 U.S. 1,11 (1983). In Slappy, the Court stated that a defendant is “not
`entitled to a particular lawyer with whom he can have, in his view, a ‘meaningful attorney-
`client relationship.’” Id. at 3-4. The Supreme Court noted more recently “the right to be
`represented by counsel of choice can be limited by mundane case-management
`considerations. If a trial judge schedules a trial to begin on a particular date and defendant's
`counsel of choice is already committed for other trials until sometime thereafter, the trial
`judge has discretion under appropriate circumstances to refuse to postpone the trial date
`and thereby, in effect, to force the defendant to forgo counsel of choice,” United States v.
`Gonzalez-Lopez, 548 U.S. 140, 155 (2006) (citing Slappy and United States v. Hughey,
`147F.3d 423, 428–431 (5th Cir. 1998)).
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`Government’s Response in Opposition to Defendants’
`Motion to Continue Trial Date
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`In the Ninth Circuit, denials of motions for a continuance are reviewed for abuse of
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`discretion. United States v. Garrett, 179 F.3d 1143, 1144–45 (9th Cir.1999). Where a denial
`of a continuance implicates a defendant's Sixth Amendment right to counsel, the Ninth
`Circuit requires the court to consider the following factors: “(1) whether the continuance
`would inconvenience witnesses, the court, counsel, or the parties; (2) whether other
`continuances have been granted; (3) whether legitimate reasons exist for the delay; (4)
`whether the delay is the defendant's fault; and (5) whether a denial would prejudice the
`defendant.” United States v Turner, 897 F. 3d 1084, 1102 (9th Cir. 2018). On balance, these
`factors weigh in favor of denying the request for a continuance of the trial date.
`The first factor, whether the continuance would inconvenience witness, the court,
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`counsel, or the parties, weighs heavily in favor of denying the motion for a continuance.
`The United States has expended considerable resources serving subpoenas on 25 witnesses
`located all over the country, and those witnesses have begun making plans during the
`holiday season to appear at the currently scheduled trial date. In the process of contacting
`the witnesses to serve the subpoenas, the government learned that one of its original victim
`witnesses is deceased. Another victim witness has developed a medical condition that may
`make it difficult if not impossible for her to travel to testify at trial, while yet another victim
`witness has stated that medical reasons will prohibit him as well from travelling to testify.
`The United States is preparing a motion to conduct a Rule 15 deposition of these witnesses
`to preserve their testimony.
`The victim witnesses were allocated the netblocks at issue approximately 30 years
`ago, so none of those initially involved are young people. Moreover, the conspiracy in this
`is alleged to have begun at least as early as December of 2010. The longer it takes to bring
`this case to trial, the higher the risk of witnesses becoming unavailable, either by death,
`illness, or memory issues, thereby making it more difficult for the government to prove its
`case. Logistical concerns and witness memory loss are important factors in deciding
`whether or not to grant a continuance. In United States v. Cerna, in denying the motion for
`a continuance, the court found that the “minimal benefit that would inure to counsel [as a
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`Government’s Response in Opposition to Defendants’
`Motion to Continue Trial Date
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`result of the continuance] is significantly outweighed by logistical considerations
`and…substantive concerns such as witness memory loss.” 2011 WL 500229 at *2 (N.D.
`Cal.). The greater the delay, the more the prejudice to the United States increases.
`
`This court will also be inconvenienced by any continuance of the trial date, as the
`ability to hold jury trials, particularly lengthy trials such as this one, has been curtailed due
`to the pandemic. There are likely few openings in the court’s calendar for trials of this
`length, perhaps necessitating a trial date even further into the future (and causing even
`greater prejudice to the United States). The current trial date was also strategically set to
`allow the case to conclude in advance of the December holiday season; even a short delay
`in trial could result in significant issues getting through all of the evidence before a juror’s
`need to break for the holiday season. Similarly, government counsel has set aside the time
`to prepare and try this case in the fall of 2021 and has noted their unavailability for other
`courts and cases during this period. Indeed, government counsel has been preparing for this
`case and the Court has been reserving these dates during the four-month period that defense
`counsel waited to raise this conflict.
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`The second factor, whether other continuances have been granted, is relatively
`neutral. The defense has requested two previous continuances of the case, which were
`granted, but those continuances were joined or not opposed by the government. No prior
`continuance of the trial date has been sought.
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`The third factor, whether legitimate reasons exist for the delay, weighs in favor of
`denying the continuance. No new facts are present, other than the fact that a trial date has
`been set in Arizona. The purpose of the continuance is to permit defense counsel to appear
`in a trial in Arizona, for a trial scheduled after the trial date was set in this case, and then
`also prepare and appear at the trial in this case. The Arizona trial date does not provide a
`basis for a continuance. At the trial setting date in this case, in January of 2021, there was
`a lengthy discussion with counsel about the potential trial in Arizona. No trial date had
`been set, and there was no indication the Court in Arizona would set defense’s requested
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`Government’s Response in Opposition to Defendants’
`Motion to Continue Trial Date
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`September date (which it did not). Taking all these factors into consideration, the court set
`the trial date for November 30, 2021.
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`At this Court’s trial setting hearing, defense counsel assured the Court once it set a
`trial date, “when other judges say ‘I have to kick your case,’ we can tell the judge, ‘No. . .
`We have a trial before Judge Curiel.’” [Trans. Hrg., Jan. 21, 2021, p.6] Defense counsel
`failed to abide by their promise to this Court, despite having many opportunities to do so.
`Instead, as it appears from the multiple filings in Arizona, defense counsel knowingly and
`intentionally failed to respect this Court’s trial setting, and failed to disclose to Judge
`Brnovich the very real conflict. Instead, they opposed the government’s request for an
`August trial date in order to avoid, in part, having one defense attorney cancel a prepaid
`vacation. See Lacey, ECF 1120 at 1. They also did not express a need to expeditiously try
`the Arizona case to ensure its completion before this Court’s set trial date, but rather asked
`Judge Brnovich for a one-week recess to allow another defense attorney to get married. Id.
`Again, in the midst of seeking delays in the Arizona trial for personal commitments, there
`is no indication that during the last twenty-one weeks, counsel notified Judge Brnovich in
`writing of the Bychak November 30, 2021 trial date. Compounding their choice to allow a
`conflicting date to be set, defense counsel then waited almost four months before informing
`the government and Court in this case. This Court’s earlier trial date should take
`precedence.
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`Additionally, it does not appear that any actual conflict exists in the trial dates. In
`fact, this Court expressly asked defense counsel at the trial setting hearing whether the
`Arizona trial would conclude by December if that court moved trial to start in September
`2021. [Trans. Hrg., 1/21/2021 at p.14 (“[T]o the extent that it was granted and it would
`start in September, it is expected it would finish by December?” “Yes.”)] Defense counsel
`confirmed it would. This Court then set trial for November 30, instead of October as
`originally desired, as an additional layer of protection. Judge Brnovich then set the trial
`date in Arizona earlier that anticipated, in August, providing further assurances that the
`Arizona trial will conclude prior to this court’s trial date. Government counsel also
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`Government’s Response in Opposition to Defendants’
`Motion to Continue Trial Date
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`contacted the prosecutors in the Arizona case, and the Arizona prosecutors advised that
`although the court had blocked out time for their trial from August 23-December 3, 2021,
`the Arizona trial would likely conclude prior to this case’s November 30, 2021 trial date.4
`Additionally, the defendants in the Arizona case, like the defendants in this case, are
`represented by multiple defense attorneys, in addition to the attorneys involved in the
`instant case. In this case, defendant Petr Pacas (represented by Gary Lincenberg, who also
`represents defendant Brunst in the Arizona case) is also represented in this case by Nicole
`Van Dyk and Darren Patrick. Whitney Bernstein and David Wiechert represent defendant
`Bychak, and also represent defendant Larkin in the Arizona case. According to the docket
`in the Arizona case, defendant Larkin is also currently represented by attorneys Seetha
`Ramachandran, Robert Corn-Revere and James Grant. According to the docket in the
`Arizona case, defendant Brunst is also represented by attorneys Ariel Nueman, Gopi
`Panchapakesan, James Grant, Michael Kimerer, and Rhonda Neff. Given the ample amount
`of time still available for preparation, the number of skilled attorneys available to the
`defendants, the fact that this trial date was set first, and the likelihood that that Arizona trial
`will conclude before this trial begins, the reason for the delay (the pending case in Arizona)
`weighs against granting the continuance.
`The fourth factor, whether the delay is the defendant’s fault, weighs in favor of
`granting the continuance. No action of any of the individual defendants (other than simply
`their choice of attorneys) is the cause of the delay currently sought due to the pendency of
`the trial in Arizona. However, defense counsel waited four months after becoming aware
`of the conflict to seek a continuance. In the interim, defense counsel set other trials on their
`schedules, exacerbating the continuance they now seek (from their initial request for a May
`2022 trial date to the present request for September 2022). Defense counsel provides no
`explanation for why they advocated for a conflicting trial date in the District of Arizona in
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`4 They also confirmed that their trial includes a two-week break from November 1-12 for the wedding of
`one of the defense counsel, and a break for Thanksgiving from November 24-26.
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`Government’s Response in Opposition to Defendants’
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`Motion to Continue Trial Date
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`the first instance and failed to raise the conflict with this Court immediately in the second
`instance.
`The final factor, whether the denial of the continuance would prejudice the
`defendants, weighs in favor of denying the continuance. It is difficult to measure the
`prejudice to the defendants prior to trial. However, at this point the trial is five months
`away, and defense counsel has been reviewing the discovery in preparation for trial since
`2018. There are very few aspects of this case that have not been thoroughly litigated at this
`point. It is unlikely that the Arizona trial and this case will overlap, and the defendants have
`retained multiple skilled trial attorneys who have ample time to prepare for this case.
`Accordingly, any prejudice to the defendants would be slight.
`IV.
`DEFENDANTS DO NOT ADDRESS THE PUBLIC’S RIGHT TO A SPEEDY TRIAL
`This court must also consider the requirements of the Speedy Trial Act in ruling on
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`the current request to continue the trial date until September of 2022. In United States v.
`Lloyd, 125 F. 3d 1263, 1270-1271 (9th Cir.1997), the Ninth Circuit noted that “the Speedy
`Trial Act places the burden directly on the district court to conduct whatever factual inquiry
`is necessary to determine for itself whether the parties require – or even desire – any
`continuance at all, and, if so, whether the reason for granting such a continuance are
`sufficient to ‘outweigh the best interest of the public and the defendant [s] in a speedy
`trial.’” In Lloyd, the Ninth Circuit held that a continuance of 112 days violated the Speedy
`Trial Act because the court failed to conduct an appropriate inquiry before granting the
`continuance requested. “The district court may not simply credit the vague statements by
`one party’s lawyer about the possible scheduling conflicts or general desires for a
`continuance of the other parties or their attorneys; instead, it must conduct an appropriate
`inquiry to determine whether the various parties actually want and need a continuance, how
`long a delay is actually required, what adjustments can be made with respect to the trial
`calendars or other plans of counsel, and whether granting the requested continuance would
`‘outweigh the best interest of the public and the defendant[s] in a speedy trial.’” Id. at 1269.
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`Government’s Response in Opposition to Defendants’
`Motion to Continue Trial Date
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`18cr4683-GPC
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`Case 3:18-cr-04683-GPC Document 241 Filed 06/17/21 PageID.2501 Page 12 of 12
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`In distinguishing Lloyd, another court noted that the only facts upon which the
`district court based its “ends of justice” finding were that one counsel had a scheduling
`conflict on a certain date and other counsel had scheduling conflicts with later dates, which
`the Ninth Circuit in Lloyd found “woefully inadequate.” United States v. Herrera, 2016
`WL 3693799 *8 (C.D. Cal, 2016). In Herrera, both the defense and the government
`stipulated to the continuance, which was based on “far more than scheduling conflicts,”
`including needing additional time for investigation and legal research. Id.
`In this case, the sole reason for the continuance is a scheduling conflict, one of
`defense counsel’s own making. The government is opposed to the continuance, and
`maintains that the scheduling conflicts of defense counsel, created after the trial date in this
`case, do not outweigh the public interest in a Speedy Trial, particularly in light of the
`dimming memories of the victim witnesses involved.
`V.
`CONCLUSION
`For the foregoing reasons, the United States respectfully requests that the court deny
`the defendants’ motion to continue the trial date in this case.
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`DATED: June 15, 2021
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`Respectfully submitted,
`
`Government’s Response in Opposition to Defendants’
`Motion to Continue Trial Date
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`18cr4683-GPC
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`RANDY S. GROSSMAN
`Acting United States Attorney
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`/s/Melanie K. Pierson
`Assistant United States Attorney
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