Case 3:18-cr-04683-GPC Document 257-2 Filed 07/30/21 PageID.2948 Page 1 of 4
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`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
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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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`v.
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`JACOB BYCHAK, et al.,
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` Defendants.
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`Case No. 18-CR-4683-GPC
`Honorable Gonzalo P. Curiel
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`DECLARATION OF JESSICA C. MUNK
`IN SUPPORT OF DEFENDANTS’
`MOTION TO COMPEL DISCOVERY;
`EXHIBITS A-C
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`Hearing Date: August 20, 2021
`Hearing Time: 1:00 p.m.
`Department: Courtroom 2D
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`DECLARATION OF JESSICA C. MUNK
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`I, Jessica C. Munk, declare as follows:
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`1. I am a principal at the law firm Wiechert, Munk & Goldstein, PC, attorneys of
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`record for defendant Jacob Bychak. I am licensed to practice in the State of California and
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`in the United States District Court for the Southern District of California. I have personal
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`knowledge of the following, and if called to do so, I could competently testify thereto.
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`2.
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`The government has made numerous discovery productions to the defense
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`DECLARATION OF JESSICA C. MUNK
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`during the pendency of the instant case. Discovery production No. 26 contains almost four
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`thousand pages of emails and other documents reflecting the FBI’s communications with
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`an employee at Spamhaus denoted by the government as a confidential informant. The
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`government’s discovery productions show that since 2013, this informant has repeatedly
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`communicated with the FBI relating to Company A and its email marketing activities,
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`encouraging the FBI to investigate Company A and lending advice on how to do so,
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`volunteers to do further investigation into said activities and provides the FBI with
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`technical advice and know-how regarding email marketing to better assist the FBI’s
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`investigation. The Spamhaus confidential informant even weighed in on how the
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`government can defend against Defendants’ Motion to Dismiss the Wire Fraud Counts.
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`3.
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`In a May 22, 2014 email, the confidential informant confirmed to the FBI
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`that “we’ve got an anonymous informant [in Company A] sending us a ton of info since
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`September 2013,” and asked the FBI “how to possibly bring him on board as an
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`informant.” FBI Agent Charles Chabalko replied the same day, saying “[t]his would be
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`vital to our investigation if we can bring him aboard. Having an inside person to tie
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`everything together would be extremely helpful.” Attached hereto as Exhibit A is a
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`redacted1 true and correct copy of an email thread dated May 22, 2014, Bates-stamp No.
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`Disc26-03283-84, and included within discovery production 26.
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`4. Several weeks later, on June 4, 2014, FBI Agent Chabalko emailed the
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`informant to advise him that “I also emailed the anonymous guy that wants to provide
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`information.” Attached hereto as Exhibit B is a redacted true and correct copy of an email
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`dated June 4, 2014, FBI, Bates-stamp No. Disc26-03702 and included within discovery
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`production 26.
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`5. 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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`1 All the attached exhibits have redacted Company A’s name along with third party names
`as requested by the government.
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`DECLARATION OF JESSICA C. MUNK
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`Case 3:18-cr-04683-GPC Document 257-2 Filed 07/30/21 PageID.2950 Page 3 of 4
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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. Attached hereto as Exhibit C is a
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`redacted true and correct copy of an email thread dated September 27, 2017, Bates-stamp
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`No. Disc26-02119 and included within discovery production 26. The government’s
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`discovery production does not include any follow-ups to this September 27, 2017 email.
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`6. On June 29, 2021, counsel for Defendants sent a letter to the government
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`requesting the government to, inter alia, identify all Company A informants, the date(s)
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`when they started supplying the FBI information, and identify all documents and
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`communications in the government’s possession that originated with the Company A
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`informant(s).
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`7. On July 1, 2021, government counsel responded to the letter via email, never
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`denying that the government possessed Company A documents sourced from the
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`Company A informants, but rather only maintaining that the government did not direct the
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`Spamhaus confidential informant to obtain documents from the Company A informants
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`and that the exhibits the government will use in its case-in-chief will be derived from
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`grand jury subpoenas and not the Spamhaus informant. The government indicated further
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`that the answers to our questions could be found in certain discovery tranches.
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`8.
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`The defense has reviewed the tranches of discovery as referenced by the
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`government and has been unable to determine what Company A material came to the
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`government via a Company A insider.
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`9. On July 13, 2021, my colleague David Wiechert emailed the government
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`stating, “we went back to the discovery and our extensive review of it was unable to
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`answer the simple question – Which [Company A] documents were provided to the
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`government by Spamhaus?” Mr. Wiechert again asked the government to “provide [the
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`Company A] documents [that originated with the Company A informant] to us forthwith,
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`or the bates stamp numbers for those documents if they have already been produced.”
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`10. On July 15, 2021, the government responded to Mr. Wiechert’s July 13, 2021
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`email and again refused to answer this simple question and reiterated any “[Company A]
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`documents that will be introduced in the government’s case-in-chief were obtained via
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`grand jury subpoenas.”
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`I declare under the penalty of perjury that the foregoing is true and correct.
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`Executed on July 30, 2021 in San Juan Capistrano, California.
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`s/Jessica C. Munk
`Jessica C. Munk
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`DECLARATION OF JESSICA C. MUNK
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