Case 3:18-cr-04683-GPC Document 242 Filed 06/23/21 PageID.2502 Page 1 of 9
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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) 546-0450
`Email: Melanie.Pierson@usdoj.gov
`
`Attorneys for the United States
`
`UNITED STATES DISTRICT COURT
`
`SOUTHERN DISTRICT OF CALIFORNIA
`
`UNITED STATES OF AMERICA,
`Case No. 18cr4683-GPC
`
`
`
`Plaintiff,
`
`
`v.
`
`
`JACOB BYCHAK et. al.,
`
`
`Defendants.
`
`
`
`
`
`
`
`
`In serving trial subpoenas on its witnesses, the United States has
`learned that two of its essential witnesses (LWT and SAD) have serious
`medical conditions that will prohibit their travel. In order to preserve
`the testimony of these essential witnesses for trial, the United States
`seeks an order permitting depositions of LWT and SAD, under oath, in the
`presence of all defendants and counsel, pursuant to Rule 15(a) of the
`Federal Rules of Criminal Procedure.
`
`
` MOTION FOR RULE 15(a) DEPOSITIONS
`OF LWT and SAD
`
`
`
`
`I.
`STATEMENT OF FACTS
`
`
`
`
` On October 31, 2018, a federal grand jury in the Southern District
`of California returned a ten-count indictment charging defendants Jacob
`Bychak, Mark Manoogian, Mohammed Abdul Qayyum, and Petr Pacas with one
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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) 546-0450
`Email: Melanie.Pierson@usdoj.gov
`
`Attorneys for the United States
`
`UNITED STATES DISTRICT COURT
`
`SOUTHERN DISTRICT OF CALIFORNIA
`
`UNITED STATES OF AMERICA,
`Case No. 18cr4683-GPC
`
`
`
`Plaintiff,
`
`
`v.
`
`
`JACOB BYCHAK et. al.,
`
`
`Defendants.
`
`
`
`
`
`
`
`
`In serving trial subpoenas on its witnesses, the United States has
`learned that two of its essential witnesses (LWT and SAD) have serious
`medical conditions that will prohibit their travel. In order to preserve
`the testimony of these essential witnesses for trial, the United States
`seeks an order permitting depositions of LWT and SAD, under oath, in the
`presence of all defendants and counsel, pursuant to Rule 15(a) of the
`Federal Rules of Criminal Procedure.
`
`
` MOTION FOR RULE 15(a) DEPOSITIONS
`OF LWT and SAD
`
`
`
`
`I.
`STATEMENT OF FACTS
`
`
`
`
` On October 31, 2018, a federal grand jury in the Southern District
`of California returned a ten-count indictment charging defendants Jacob
`Bychak, Mark Manoogian, Mohammed Abdul Qayyum, and Petr Pacas with one
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`1
`2
`3
`4
`5
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`Case 3:18-cr-04683-GPC Document 242 Filed 06/23/21 PageID.2503 Page 2 of 9
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`count of Conspiracy, in violation of Title 18, United States Code,
`Section 371; four counts of Wire Fraud, in violation of Title 18, United
`States Code, Section 1343; five counts of Electronic Mail Fraud, in
`violation of Title 18, United States Code, Section 1037(a)(5), and
`Criminal Forfeiture. The charges related to the defendants’ fraudulent
`acquisition of Internet Protocol (IP) addresses and the use of the
`purloined IP addresses to send spam.
` The defendants are employed by Company A, a San Diego firm engaged
`in the business of digital advertising. Company A needed to constantly
`acquire large groups of IP addresses (netblocks) because the IP addresses
`carrying its advertising were repeatedly blocked by spam filters. Jake
`Bychak and Peter Pacas, on behalf of Company A, acquired a number of
`cut-rate netblocks that had been hijacked from their authorized users.
`In order to be able to use these netblocks to send commercial emails,
`the defendants provided fraudulent Letters of Authorization (LOAs)
`supposedly from the authorized users to the hosting companies and
`internet service providers (ISPs), indicating that the mailer was
`authorized by the registrant to use the netblock. Mark Manoogian and
`Abdul Mohammed (with the knowledge and agreement of their co-
`conspirators) knowingly created and used false LOAs purporting to be
`from the authorized users, and sent them to the ISPs. The ISPs relied
`on the false LOAs and permitted Company A to use the hijacked netblocks
`to send commercial email, which earned Company A substantial profits
`during the period of the conspiracy.
`
`Motion for Rule 15(a) deposition
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`Case 3:18-cr-04683-GPC Document 242 Filed 06/23/21 PageID.2504 Page 3 of 9
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`As part of its proof at trial, the United States will call various
`individuals as witnesses who were the authorized users of the netblocks
`hijacked by the defendants. These witnesses will testify that the LOAs
`sent by the defendants to the ISPs were false and fraudulent, and the
`defendants’ use of the netblocks was unauthorized. One such witness is
`LWT, who was the authorized user of the netblock charged in Counts 2 and
`10 [ECT]. Witness LWT has provided a statement indicating that LWT did
`not authorize the defendants to use the netblock in question, and that
`the witness was the sole person with the authority to make that decision.
`LWT reviewed the LOA provided by the defendants in relation to the
`netblock at issue and noted that (1) it was not on the witness’ company
`letterhead, (2) no such authorization had been provided as claimed in
`the letter, (3) the purported signee was an individual whom the witness
`had not seen in approximately 15 years, and (4) the purported signee was
`not authorized to make the representation claimed in the letter.
`
`Another such witness is SAD, whose forged signature appears on the
`LOA for the netblock charged in Counts 4 and 7 [Moore]. SAD reviewed the
`LOA provided by the defendants for the netblock at issue and advised
`that: (1) the signature on the LOA purporting to be his is a forgery,
`(2) he had ceased working for the registrant company approximately 13
`years prior to the date of the false LOA, and (3) he never authorized
`anyone to use the netblock in 2013, as represented in the false LOA.
`In the process of service of trial subpoenas on the witnesses,
`government counsel was contacted by counsel for LWT, who advised that
`LWT had a medical condition that could render the witness unavailable
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`Motion for Rule 15(a) deposition
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`18cr4683-GPC
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`Case 3:18-cr-04683-GPC Document 242 Filed 06/23/21 PageID.2505 Page 4 of 9
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`A.
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`to testify at the trial in this case. (See Pierson Declaration, filed
`under seal.) Counsel for the witness later provided additional
`information, as set forth in the Pierson Declaration. Similarly, SAD
`provided information to an FBI agent in Pennsylvania, advising that SAD
`also had multiple medical conditions that could render SD unavailable
`to testify at trial. (See Booth Declaration, filed under seal.)
`
`II.
`MEMORANDUM OF POINTS AND AUTHORITIES
`
`DUE TO EXCEPTIONAL CIRCUMSTANCES, IT IS IN THE INTEREST OF
`JUSTICE TO AUTHORIZE THE RULE 15(a) DEPOSITIONS OF TWO
`PROSPECTIVE TRIAL WITNESSES
`
`
`
`
`
`
`Rule 15 authorizes a party to “move that a prospective witness be
`deposed in order to preserve testimony for trial.” Fed. R. Crim. P.
`15(a)(1). The “court may grant the motion because of exceptional
`circumstances and in the interests of justice.” Id.
`The movant has the burden of proof on a Rule 15(a) motion. United
`States v. Olafson, 213 F.3d 435, 442 (9th Cir. 2000). This court retains
`broad discretion in granting a Rule 15(a) motion, and should consider
`the particular circumstances of each case to determine whether the
`exceptional circumstances requirement has been satisfied. United States
`v. Omene, 143 F.3d 1167, 1170 (9th Cir. 1998). “Rule 15(a) only requires
`that the trial court find that due to exceptional circumstances it is
`in the interest of justice that the testimony of a prospective witness
`be taken and preserved for possible use at trial.” Id.
`While the Ninth Circuit has not required consideration of these
`factors, courts often consider the following factors when considering a
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`Motion for Rule 15(a) deposition
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`Case 3:18-cr-04683-GPC Document 242 Filed 06/23/21 PageID.2506 Page 5 of 9
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`Rule 15 motion: (1) the unavailability of the witness at trial; (2) the
`good faith effort by the movant to obtain the witness’s presence at
`trial; and (3) a demonstration by the movant that the expected testimony
`would be favorable and material. United States v. Zuno-Arce, 44 F.3d
`1420, 1425 (9th Cir. 1995); United States v. Sanchez-Lima, 161 F.3d 545,
`548 (9th Cir. 1998); United States v. Trumpower, 546 F.Supp.2d 849, 853
`(E.D. Cal. 2008); and United States v. Moalin, 2012 WL 3637370, at *2
`(S.D. Cal. Aug. 22, 2012). The Ninth Circuit has also held that before
`granting a Rule 15 motion, a court must consider the willingness of the
`witness to be deposed. Olafson, 213 F.3d at 442.
`Other courts in this circuit have found exceptional circumstances
`justified granting a motion for a Rule 15 deposition in circumstances
`similar to this case. In United States v. Prokop, 2014 WL 1154164
`(D. Nev. 2014), the court found exceptional circumstances to grant the
`motion for a deposition where the witness had not flown in a long time
`because of health issues, including knee replacement surgery that was
`progressing slowly and causing significant pain, and could not sit for
`more than an hour without taking pain medication, which then impacted
`her mental abilities. See also, Furlow v. United States, 644 F. 2d 764,
`766 (9th Cir. 1981) [exceptional circumstances exist where witness was
`ill and on disability].
`B.
`The Facts Clearly Establish the Probable Unavailability of
`the Witnesses to Appear and Testify at Trial and That Their
`Unavailability is Beyond the Control of the United States.
`The Ninth Circuit has found that “Rule 15(a) does not require [a]
`conclusive showing of ‘unavailability’ before a deposition can be
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`Case 3:18-cr-04683-GPC Document 242 Filed 06/23/21 PageID.2507 Page 6 of 9
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`taken.” Sanchez-Lima, 161 F.3d at 548 (emphasis added). “It would be
`unreasonable and undesirable to require [a party] to assert with
`certainty that a witness will be unavailable for trial months ahead of
`time, simply to obtain authorization to take his deposition.” United
`States v. Sines, 761 F.2d 1434, 1439 (9th Cir. 1985); see also, United
`States v. Rich, 580 F.2d 929, 934 (9th Cir. 1978) (“A defendant may
`depose a witness only if the witness may be unable to attend
`trial.”)(emphasis added).
`Here, as established by the Declaration of Assistant U.S. Attorney
`Melanie K. Pierson1 and the Declaration of FBI Special Agent Glenn Booth,
`filed separately under seal, the United States has clearly established
`that the witnesses may be unable to attend trial. [See Pierson
`Declaration, ¶¶ 4 -7, Booth Declaration ¶¶ 3 -4.] Furthermore, it appears
`that circumstances regarding the inability of the witness to appear at
`trial are beyond the control of the United States. [Id.]
`C.
`The Anticipated Testimony of the Witness Would
`Be Favorable and Material to the United States
`
`While Rule 15(a) does not require a conclusive showing of “material”
`testimony before a deposition can be taken, courts consider, as one
`factor, whether the movant has shown that the testimony is favorable and
`material. See Omene, 143 F.3d at 1170. Regarding materiality, the Ninth
`Circuit has looked to the “fundamental standards of relevancy” of the
`Federal Rules of evidence, “which require the admission of [evidence]
`
`
`The moving party may demonstrate the probable unavailability of a
`1
`prospective deponent based on affidavits, representations made by
`counsel, and other reliable information. Sines, 761 F.2d at 1439.
`6
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`Case 3:18-cr-04683-GPC Document 242 Filed 06/23/21 PageID.2508 Page 7 of 9
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`which tends to prove” a particular fact of consequence, in defining
`“material” evidence under Federal Rule of Criminal Procedure 16. Other
`courts have held that “materiality” under Rule 15 is a term of art that
`means the substance of the evidence sought is material to the party
`moving to depose. United States v. Ramos, 45 F.3d 1519, 1522 (11th Cir.
`1995). When a prospective witness is unlikely to appear at trial and his
`or her testimony is critical to the case, simple fairness requires
`permitting the moving party to preserve that testimony by deposing the
`witness. United States v. Drogoul, 1 F.3d 1546, 1552 (11th Cir. 1993).
` As set forth in the Statement of Facts above, the testimony of
`the witnesses is both material and favorable to the United States’ proof
`of the charges in the indictment. Specifically, Counts 7 and 10, which
`charge electronic mail fraud (violations of the CAN-SPAM Act), require
`proof that the defendants “falsely represented themselves to be the
`registrant or the legitimate successor in interest to the registrant of
`5 or more Internet Protocol addresses.” Counts 2 and 4, which charge
`wire fraud, allege as a method and means of the scheme to defraud, that
`the defendants “created and sent letter to internet hosting companies,
`fraudulently making it appear that the registrant of the IP addresses
`had authorized the defendants’ use of the IP addresses.”
`LWT will testify that no authorization to use the netblocks at
`issue was given to the defendants and that LWT was the sole person with
`the authority to make that decision, so the claims in the LOA made by
`the defendants to be users authorized by the registrant were false. LWT
`will also testify that the LOA provided by the defendants in relation
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`Case 3:18-cr-04683-GPC Document 242 Filed 06/23/21 PageID.2509 Page 8 of 9
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`to the netblock at issue is fraudulent because it was not on company
`letterhead, and the letter was supposedly signed in 2013 by someone not
`associated with the company in over 15 years. SAD will testify that the
`signature purporting to be his on the LOA submitted by the defendants
`is a forgery, and moreover, he had not been associated with the company
`that was the registrant of the netblock for over a decade. Such testimony
`is critical to the proof of these charges.
`D. The Witnesses Would Participate in a Deposition if Ordered
`by This Court.
`
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`Before granting a Rule 15 motion, courts must consider the
`willingness of the witness to be deposed. Olafson, 213 F.3d 442. As set
`forth in the Pierson and Booth Declarations, the witnesses would
`participate in a videotaped deposition, as ordered by the court. The
`witnesses would testify under oath in the presence of the defendants and
`their counsel, and be subject to cross-examination. As such, this factor
`also weighs in favor of granting the motion for a Rule 15 deposition.
`In sum, a consideration of all the factors discussed above,
`including the probable unavailability of the witnesses for attendance
`at trial and the critical nature of the testimony to the government’s
`proof, exceptional circumstances exist which make it in the interest of
`justice to authorize a Rule 15 deposition of this prospective trial
`witness.
`//
`
`//
`
`//
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`Motion for Rule 15(a) deposition
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`Case 3:18-cr-04683-GPC Document 242 Filed 06/23/21 PageID.2510 Page 9 of 9
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`III.
`CONCLUSION
`For the foregoing reasons, the Government respectfully requests
`
`that this Court enter an order authorizing the taking of the depositions
`of LWT and SAD, pursuant to Fed. R. Crim. P. 15(a) to preserve testimony
`for trial.
`
` DATED:June 23, 2021 Respectfully submitted,
`
`
`RANDY S. GROSSMAN
`
`Acting United States Attorney
`
`/s/Melanie K. Pierson
`
`Assistant United States Attorney
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