Case 3:18-cr-04683-GPC Document 257-1 Filed 07/30/21 PageID.2938 Page 1 of 10
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`MINTZ, LEVIN, COHN, FERRIS,
`GLOVSKYAND POPEO, P.C.
`Randy K. Jones, SBN 141711
`3580 Carmel Mountain Road, Suite 300
`San Diego, CA 92130
`Telephone: (858) 314-1510
`Email: rkjones@mintz.com
`
`Attorney for Mark Manoogian
`
`
`
`WIECHERT, MUNK &
`GOLDSTEIN, PC
`David W. Wiechert, SBN 94607
`Jessica C. Munk, SBN 238832
`William J. Migler, SBN 318518
`27136 Paseo Espada, Suite B1123
`San Juan Capistrano, CA 92675
`Telephone: (949) 361-2822
`Email: dwiechert@wmgattorneys.com
` jessica@wmgattorneys.com
` william@wmgattorneys.com
`Attorneys for Jacob Bychak
`
`BIRD MARELLA BOXER WOLPERT
`BIENERT KATZMAN
`NESSIM DROOKS LINCENBERG
`LITTRELL WILLIAMS LLP
`Thomas H. Bienert, Jr., SBN 135311
`RHOW P.C.
`Gary S. Lincenberg, SBN 123058
`James D. Riddet, SBN 39826
`Nicole Rodriguez Van Dyk, SBN 261646
`Whitney Z. Bernstein, SBN 304917
`Darren L. Patrick, SBN 310727
`903 Calle Amanecer, Suite 350
`1875 Century Park East, Floor 23
`San Clemente, California 92673
`Los Angeles, CA 90067
`Telephone: (949) 369-3700
`Telephone: (310) 201-2100
`Email: tbienert@bklwlaw.com
`Email: glincenberg@birdmarella.com
`
` jriddet@bklwlaw.com
`nvandyk@birdmarella.com
`
` wbernstein@bklwlaw.com
` dpatrick@birdmarella.com
`
`Attorneys for Petr Pacas
`Attorneys for Mohammed Abdul Qayyum
`
`
`
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`IN THE UNITED STATES DISTRICT COURT
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`FOR THE SOUTHERN DISTRICT OF CALIFORNIA
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`
`
`Plaintiff,
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`UNITED STATES OF AMERICA,
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`
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`v.
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`JACOB BYCHAK, et al.,
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` Defendants.
`
`
`Case No. 18-CR-4683-GPC
`Honorable Gonzalo P. Curiel
`
`MEMORANDUM OF POINTS AND
`AUTHORITIES IN SUPPORT OF
`DEFENDANTS’ MOTION TO COMPEL
`DISCOVERY
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`[Declaration of Jessica C. Munk and attached
`Exhibits filed concurrently herewith]
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`DEFENDANTS’ MOTION TO COMPEL DISCOVERY
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`Case 3:18-cr-04683-GPC Document 257-1 Filed 07/30/21 PageID.2939 Page 2 of 10
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`Hearing Date: August 20, 2021
`Hearing Time: 1:00 p.m.
`Department: Courtroom 2D
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`MEMORANDUM OF POINTS AND AUTHORITIES
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`I.
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`INTRODUCTION
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`Defendant’s instant motion to compel discovery involves the potential intersection
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`of the Fourth Amendment with the theft of Company A’s internal documents by a
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`potential state actor and the sharing of those documents, pre-indictment, with the
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`government.
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`From the government’s disclosures, it is incontrovertible that at least one Company
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`A employee unlawfully and surreptitiously fed internal Company A documents and
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`information to a representative of bulk-email watchdog Spamhaus. A Spamhaus
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`representative, designated as a confidential informant by the government, remained
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`enthusiastically engaged during the investigation of Company A and the Defendants. The
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`confidential informant repeatedly updated his FBI handlers regarding Company A’s
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`activities and advised them on how best to investigate Company A over more than a five-
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`year period. What remains unclear to the defense is whether the confidential informant
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`forwarded to the FBI internal information and documents cultivated from a Company A
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`fiduciary. It is also uncertain to the defense if any Company A fiduciary, in their separate
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`communications with the FBI, forwarded to the FBI purloined Company A confidential
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`information or documentation. The defense has repeatedly asked the government if either
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`of these occurred through straightforward “yes or no” questions. These inquiries have
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`repeatedly been dodged by government counsel. Instead, the government relayed that the
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`answer to these questions lie in the discovery and emphasized that its case-in-chief will be
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`predicated on evidence obtained through grand jury subpoenas.
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`A diligent review of the government discovery does not answer the question of
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`what Company A documents made their way into the possession of the government
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`without corporate approval. Moreover, the fact that documents purloined from Company
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`A will not be used in the government’s case-in-chief does not constitute a panacea for any
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`Fourth Amendment issues. On the contrary, the government’s refusal to identify
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`documents and emphasis on a “clean” case-in-chief raise the specter that the government
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`is concerned about the Fourth Amendment implications of having received Company A
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`material outside of the subpoena process. The government’s answers to date are woefully
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`insufficient, necessitating this motion. It ignores both the nature of the exclusionary rule,
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`which suppresses not only improperly seized evidence but all other subsequently obtained
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`evidence derived therefrom, and the panoply of the government’s discovery duties to be
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`forthright with all evidence that has any hint of exculpation or otherwise bears on any
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`unlawful conduct by those acting at the behest of the government or its agents.
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`After repeated communications with the government, Defendants are forced to
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`bring the instant motion under Federal Rule of Criminal Procedure 16 to compel the
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`government to answer whether it indeed has received any pilfered internal Company A
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`documents and, if so, to produce said documents to the defense or identify them by bates-
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`number, as well as detail the circumstances surrounding the government’s receipt of this
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`information.
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`II. FACTUAL BACKGROUND
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`The investigation into Company A and the Defendants has been ongoing since at
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`least 2013 when the government first began to utilize a Spamhaus employee as a
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`confidential informant. Since 2013, this informant has repeatedly communicated with the
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`FBI relating to Company A and its email marketing activities, encouraging the FBI to
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`investigate Company A and lending advice on how to do so. See Declaration of Jessica C.
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`Munk (“Munk Dec.”) at ¶ 2. In a May 22, 2014 email, the confidential informant
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`confirmed to the FBI that “we’ve got an anonymous informant [in Company A] sending
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`us a ton of info since September 2013,” and asked the FBI “how to possibly bring him on
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`Case 3:18-cr-04683-GPC Document 257-1 Filed 07/30/21 PageID.2941 Page 4 of 10
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`board as an informant.” Munk Dec. at ¶ 3; Exhibit A. FBI Agent Charles Chabalko replied
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`the same day saying, “[t]his would be vital to our investigation if we can bring him
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`aboard. Having an inside person to tie everything together would be extremely helpful.”
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`Id. Several weeks later, on June 4, 2014, FBI Agent Chabalko emailed the informant to
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`advise him that “I also emailed the anonymous guy that wants to provide information.”
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`Munk Dec. at ¶ 4; Exhibit B.
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`Several years later in a September 27, 2017 email, the Spamhaus confidential
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`informant confirmed that a Company A informant had “sent internal emails implicating
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`various people of doing various things,” specifically identifying a Company A attorney
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`and asking FBI Agent Chabalko if the “attorney-client privilege prevent[s] [the agent]
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`from viewing [the emails]” with her copied thereto. Munk Dec. at ¶ 5; Exhibit C.
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`Because the government’s discovery production does not include any follow-ups to
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`this September 27, 2017 email, many critical questions remain unanswered. Id. Did the
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`FBI respond to this email? If so, what was the response? And what documents from the
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`Company A informants were provided to the government either directly or through the
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`Spamhaus confidential informant? What date were those documents provided relative to
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`the grand jury investigation into Company A and Defendants?
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`On June 29, 2021, defense counsel sent a letter to government counsel requesting
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`the government to, inter alia, identify all Company A informants, the date(s) when they
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`started supplying the FBI information, and identify all documents and communications in
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`the government’s possession that originated with the Company A informant(s). Munk
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`Dec. at ¶ 6. Government counsel responded on July 1, tellingly never denying that the
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`government possessed Company A documents sourced from the Company A informants,
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`but rather only maintaining that the government did not direct the Spamhaus confidential
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`informant to obtain documents from the Company A informants and that the exhibits the
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`government will use in its case-in-chief will be derived from grand jury subpoenas and
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`not the Spamhaus informant. Munk Dec. at ¶ 7. Government counsel indicated further that
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`the answers to our questions could be found in certain discovery tranches. Id. The defense
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`has reviewed those tranches and has been unable to determine what Company A material
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`DEFENDANTS’ MOTION TO COMPEL DISCOVERY
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`came to the government via a Company A insider. Munk Dec. at ¶ 8. On July 13, 2021,
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`counsel for Mr. Bychak notified the government that after its July 1, 2021 email, “we
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`went back to the discovery and our extensive review of it was unable to answer the simple
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`question – Which [Company A] documents were provided to the government by
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`Spamhaus?” Munk Dec. at ¶ 9. Defense counsel again asked the government to “provide
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`[the Company A] documents [that originated with the Company A informant] to us
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`forthwith, or the bates stamp numbers for those documents if they have already been
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`produced.” Id. The government again refused to answer this simple question and
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`reiterated any “[Company A] documents that will be introduced in the government’s case-
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`in-chief were obtained via grand jury subpoenas.” Munk Dec. at ¶ 10.
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`III. LEGAL ARGUMENT
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`Rule 16(a) of the Federal Rules of Criminal Procedure requires the government to
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`make available upon defendant’s request all documents “within the government’s
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`possession, custody, or control” that are “material to preparing the defense.” Fed. R. Crim.
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`P. 16(a)(1)(E)(i). Rule 16 requires only that the defendant make a threshold showing of
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`materiality. United States v. Hernandez-Mesa, 720 F.3d 760, 763 (9th Cir. 2013).
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`Materiality is a “low threshold” satisfied by a presentation of facts which tends to show
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`that the government is in possession of information helpful to the defense. Id.; see also
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`United States v. Muniz-Jaquez, 718 F.3d 1180, 1183 (9th Cir. 2013) (“Even inculpatory
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`evidence may be relevant. A defendant who knows that the government has evidence that
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`renders his planned defense useless can alter his trial strategy.”).
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`The government also has separate duties to disclose exculpatory evidence under
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`Brady v. Maryland, 373 U.S. 83, 87 (1963). See also United States Attorneys’ Manual
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`(“USAM”) § 9-5.001(B) (“Government disclosure of material exculpatory and
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`impeachment evidence is part of the constitutional guarantee to a fair trial.”). Under
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`Brady, evidence favorable to defendant must be turned over by the prosecutor even if it is
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`not otherwise subject to discovery under Rule 16(a). Brady, 373 U.S. at 87.
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`Case 3:18-cr-04683-GPC Document 257-1 Filed 07/30/21 PageID.2943 Page 6 of 10
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`A. The Requested Information/Documentation is Highly Material to a
`Fourth Amendment Challenge
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`A cursory perusal of even a fraction of the numerous emails between the Spamhaus
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`confidential informant and the FBI would support the conclusion that the informant was a
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`“state actor” for Fourth Amendment purposes. For example, the Spamhaus informant
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`provides regular updates to the FBI as to Company A’s activities, forwards the FBI emails
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`Spamhaus received relating to Company A, volunteers to do further investigation into said
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`activities, and provides the FBI with technical advice and know-how regarding email
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`marketing to better assist the FBI’s investigation. The Spamhaus confidential informant
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`even weighed in on how the government can defend against Defendants’ Motion to
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`Dismiss the Wire Fraud Counts. Munk Dec. at ¶ 2. Such activities fit well within the
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`established framework of a private individual being considered a “state actor” under the
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`Fourth Amendment.1 See United States v. Reed, 15 F.3d 928, 931 (9th Cir. 1994) (reciting
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`the “two part test” for determining whether a private individual was acting as a
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`“governmental instrument or agent” as “(1) whether the government knew of and
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`acquiesced in the intrusive conduct; and (2) whether the party performing the search
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`intended to assist law enforcement efforts or further his own ends.”).
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`The key Fourth Amendment question then is whether the Company A informants
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`and/or the individuals who actually “seized” Company A’s internal documentation were
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`operating as “government instrument[(s)] or agent[(s)]” when they purloined internal
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`documents and forwarded them to the government “agent.” If that question is answered in
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`the affirmative, Defendants would be entitled to seek suppression of not only the pilfered
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`evidence but also all evidence subsequently derived therefrom as fruits of the poisonous
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`tree. See Utah v. Strieff, 136 S. Ct. 2056, 2061 (2016) (“[T]he exclusionary rule
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`1 Spamhaus has a history of cooperating with the government. See
`https://www.techrepublic.com/blog/it-security/ddos-strike-on-spamhaus-highlights-need-
`to-close-dns-open-resolvers/ (noting Spamhaus “works alongside law enforcement
`agencies like the FBI, email providers, and networks around the world.”) last visited on
`July 26, 2021.
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`Case 3:18-cr-04683-GPC Document 257-1 Filed 07/30/21 PageID.2944 Page 7 of 10
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`encompasses both the primary evidence obtained as a direct result of an illegal search or
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`seizure and, relevant here, evidence later discovered and found to be derivative of an
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`illegality, the so-called ‘fruit of the poisonous tree.’”).
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`However, before the defense can determine whether to pursue this motion, the
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`defense requires delineation of which Company A materials were actually provided to the
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`government outside of the subpoena process, and how and when those materials came into
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`the possession of the government. This information is highly material and its production is
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`mandated under Rule 16(a) and Brady.
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`IV. CONCLUSION
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`Based on the foregoing, Defendants respectfully request that the Court order the
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`government to immediately produce to defense counsel the following information and
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`evidence:
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`(1)
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`Production or identification by bates-number of all documents that came
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`from the Company A informant(s) either directly or through Spamhaus; and
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`(2)
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` The date(s) when the government received the Company A
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`information/documentation identified in number one above.
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`Respectfully submitted:
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`Dated: July 30, 2021
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`Dated: July 30, 2021
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`WIECHERT, MUNK & GOLDSTEIN, PC
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`By: William J. Migler
` David W. Wiechert
` Jessica C. Munk
` William J. Migler
` Attorneys for Jacob Bychak
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`MINTZ, LEVIN, COHN, FERRIS,
`GLOVSKY AND POPEO, P.C.
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`By: Randy K. Jones
` Randy K. Jones
` Attorneys for Mark Manoogian
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`Dated: July 30, 2021
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`Dated: July 30, 2021
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`BIENERT KATZMAN
`LITTRELL WILLIAMS LLP
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`By: Whitney Z. Bernstein
` Thomas H. Bienert, Jr.
` James D. Riddet
` Whitney Z. Bernstein
` Attorneys for Mohammed Abdul Qayyum
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`BIRD, MARELLA, BOXER, WOLPERT,
`NESSIM, DROOKS, LINCENBERG &
`RHOW, P.C.
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`By: Nicole Rodriguez Van Dyk
` Gary S. Lincenberg
`Nicole Rodriguez Van Dyk
` Darren L. Patrick
` Attorneys for Petr Pacas
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`Case 3:18-cr-04683-GPC Document 257-1 Filed 07/30/21 PageID.2946 Page 9 of 10
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`CERTIFICATE OF AUTHORIZATION TO SIGN ELECTRONIC SIGNATURE
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`Pursuant to section 2(f)(4) of the Electronic Case Filing Administrative Policies and
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`Procedures of the United States District Court for the Southern District of California, I
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`certify that the content of this document is acceptable to counsel for the Defendants and
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`that I have obtained authorization from Randy K. Jones, Whitney Z. Bernstein, and Nicole
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`Rodriguez Van Dyk.
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`Dated: July 30, 2021
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`By: s/Jessica C. Munk
` Jessica C. Munk
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`Case 3:18-cr-04683-GPC Document 257-1 Filed 07/30/21 PageID.2947 Page 10 of 10
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`CERTIFICATE OF SERVICE
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`Counsel for Defendant certifies that the foregoing pleading has been electronically
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`served on the following parties by virtue of their registration with the CM/ECF system:
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`AUSA Melanie K. Pierson
`AUSA Sabrina L. Feve
`AUSA Ashley E. Goff
`U.S. Attorney’s Office
`880 Front Street, Rm 6293
`San Diego, CA 92101
`melanie.pierson@usdoj.gov
`sabrina.feve@usdoj.gov
`ashley.goff@usdoj.gov
`
`Candina S. Heath
`Department of Justice
`1301 New York Avenue NW, Suite 600
`Washington, DC 20530
`candina.heath2@usdoj.gov
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` I
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` certify under penalty of perjury under the laws of the United States of
`America that the foregoing is true and correct.
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`Executed on July 30, 2021, at San Juan Capistrano, California.
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`s/Jessica C. Munk
`Jessica C. Munk
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`1
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