Case 3:18-cr-04683-GPC Document 265 Filed 08/06/21 PageID.2988 Page 1 of 8
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`RANDY S. GROSSMAN
`Acting United States Attorney
`MELANIE K. PIERSON
`SABRINA L. FEVE
`Assistant U.S. Attorneys
`California Bar No. 112520/226590
`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/Sabrina.Feve@usdoj.gov
`
`CANDINA S. HEATH
`Senior Counsel
`Texas Bar No. 09347450
`Computer Crime and Intellectual Property Section
`U.S. Department of Justice
`Washington, D.C. 20005
`Tel: (202) 307-1049
`Email: Candina.Heath2@usdoj.gov
`Attorneys for Plaintiff
`United States of America
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`UNITED STATES DISTRICT COURT
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`SOUTHERN DISTRICT OF CALIFORNIA
`
`UNITED STATES OF AMERICA,
`Case No. 18cr4683-GPC
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` UNITED STATES’ RESPONSE TO
`
`Plaintiff,
`DEFENDANTS’ MOTION TO COMPEL
`
`DISCOVERY REGARDING THE
`v.
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`ORIGIN OF RECORDS RECEIVED
`
`JACOB BYCHAK et. al.,
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`
`
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`Defendants.
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` Defendants’ Motion to Compel should be denied because it relies on
`a series of incorrect and unsupported assumptions, including that the
`prosecution team has both improperly withheld discovery and tasked
`private parties to misappropriate Company A documents. To date, the
`United States has disclosed both the records it received from the source
`of information at Spamhaus (SS) and, to the extent such information is
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`Case 3:18-cr-04683-GPC Document 265 Filed 08/06/21 PageID.2989 Page 2 of 8
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`in the prosecution team’s possession, the origin of those records. Any
`Company A records produced by SS that originated from a private party,
`such as a suspected Company A insider, were received after the United
`States had obtained search warrants and issued subpoenas seeking records
`from or related to Company A. The doctrine of inevitable discovery would
`also apply had the United States received such records earlier.
`Moreover, the provision of records by one private party to a second
`private party, who later provides those records to the government
`without any direction or encouragement by the United States does not
`provide a basis for suppression under the Fourth Amendment. As such,
`the requested information is neither material nor discoverable.
`I.
`STATEMENT OF RELEVANT FACTS
`In June of 2014, SS advised the FBI that Spamhaus received
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`information about the activities of Company A from an anonymous private
`party (Anon-1). SS speculated that Anon-1 was an individual (CY) who
`briefly worked at a firm related to Company A until mid-2013, prior to
`any of the substantive offenses charged in the Indictment. SS provided
`an email address for Anon-1 to the FBI.1 The FBI then wrote to the email
`address SS provided for Anon-1. Anon-1 did not, however, agree to meet
`or speak with the FBI and the FBI did not ultimately receive documents
`or information from Anon-1. (See Declaration of Assistant U.S. Attorney
`Melanie Pierson, attached as Exhibit 1 hereto.)
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`In December of 2014, the United States obtained a warrant for
`defendant Manoogian’s Company A email account, and, six months later,
`obtained a warrant for four other Company A email accounts and the email
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`1 The government does not know whether the individual using the Anon-1
`email address was actually CY.
`2
`Government’s Response to Defendants’
`
`Motion to Compel Discovery
`
`18cr4683-GPC
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`Case 3:18-cr-04683-GPC Document 265 Filed 08/06/21 PageID.2990 Page 3 of 8
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`account of Daniel Dye. In September of 2016, the United States issued
`subpoenas duces tecum to Company A and five related companies, obtaining
`documents and emails duplicative of those obtained in the warrants, as
`well as numerous additional records that the government will seek to
`admit at trial. Id. Of the approximately 1,904,907 pages of discovery
`produced to date, approximately 1,365,668 pages, or about 70%, consists
`of records obtained pursuant to those six subpoenas.
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`In December of 2017, after the issuance of the subpoenas, the FBI
`interviewed CY. The report of interview does not indicate that CY
`identified himself as Anon-1. Thereafter, through his attorney, CY
`provided four documents to the government in an email from his attorney
`dated January 10, 2018.
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`Defendants’ Exhibit C (DKT 257-5)2 is an email dated September 27,
`2017, wherein SS advised the FBI, “So far I have not included anything
`our informants have given us.” The dates of this email and the January
`10, 2018 email from CY’s attorney forwarding CY’s documents show that
`the government did not receive any items or records from Spamhaus that
`originated from any anonymous private party or CY prior to September
`27, 2017, at least a year after the subpoenas duces tecum were issued
`to Company A and the five related firms.
`The government has provided the defense with the reports of
`contacts with SS, which document the information and records provided,
`and the dates upon which the contact or production occurred. The
`government has also provided the defense with the emails between the
`FBI and SS, and any attachments that were sent to the FBI with those
`emails, which also show the dates of transmission. The defense is
`therefore in possession of the information received by the government
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`2 The bates stamp on Exhibit C is [Company A]-DISC26-02119.
`3
`Government’s Response to Defendants’
`18cr4683-GPC
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`Motion to Compel Discovery
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`from SS and the dates upon which the information was received. There is
`no evidence in any of these materials that the FBI directed or
`encouraged SS to attempt to obtain internal Company A documents. To the
`extent that SS provided information regarding the origin of the
`information SS provided to the government, that origin is documented in
`the reports and emails. The information known to the prosecution team
`regarding the origin of the information provided by SS has been
`disclosed, and the prosecution team has no further information in its
`possession to provide regarding that subject.
`II.
`THE INFORMATION SOUGHT IS NOT DISCOVERABLE.
`In its motion to compel, the defense assumes that unidentified
`documents were “cultivated” or “purloined” from Company A by an
`unidentified Company A employee or fiduciary, whom they assume provided
`the documents to SS, whom they further presume provided the documents
`to the FBI. Although the prosecution team has provided the defense with
`all the information in its possession regarding the origin of the
`records disclosed in discovery, the defense now seeks to have the
`government conduct additional investigations on behalf of the defense
`and make further inquiry with Spamhaus regarding the origin of all
`records provided to the government.
`The government should not be tasked with investigating unfounded
`assumptions set forth by the defense. The Ninth Circuit in United States
`v. Santiago, 46 F.3d 885, 894 (9th Cir. 1995) defined the standard for
`disclosure of documents or evidence material to the defense:
` defendant must make a threshold showing of materiality, which
`requires a presentation of “facts which would tend to show that
`the Government is in possession of information helpful to the
`defense.” United States v. Mandel, 914 F.2d 1215, 1219 (9th Cir.
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`Government’s Response to Defendants’
`Motion to Compel Discovery
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`18cr4683-GPC
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`Case 3:18-cr-04683-GPC Document 265 Filed 08/06/21 PageID.2992 Page 5 of 8
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`1990). “Neither a general description of the information sought
`nor conclusory allegations of materiality suffice.” Id.
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`Even though the defense contends in its motion that materiality
`has a low threshold, it still needs to be more than an educated guess
`about the existence of or importance of a document. United States v.
`Salyer, 271 F.R.D. 148, 158 (E.D.Cal. July 9, 2010). In the instant
`case, the defense’s inquiry does not rise to the level of an educated
`guess. The defense assumes that unidentified documents exist, which
`were “cultivated” or “purloined” by unidentified private parties, who
`the defense speculates may be employees or fiduciaries of Company A.
`The defense further assumes that the unidentified private parties
`proffered these unidentified documents to SS at SS’s request, who they
`presume was acting as an agent of the government. The defense
`additionally assumes that SS proffered these unidentified documents to
`the government, who failed to disclose them in discovery. Finally, the
`defense’s biggest assumption is that the government directed all this
`activity in the first place.
`The defense has failed to articulate any facts tending to show the
`sought-after documents exist or have not previously been produced. To
`the contrary, the government has repeatedly assured the defense that
`all the evidence intended to be used in its case-in-chief was obtained
`through grand jury subpoenas, which were issued in 2016. Thus, the
`evidence received via subpoenas and to be used as exhibits at trial
`during the government’s case-in-chief were neither “cultivated” nor
`“purloined” by a purported employee or fiduciary of Company A.
`Moreover, the inevitable discovery exception to the exclusionary
`rule applies where the prosecution can establish by a preponderance of
`the evidence that the information and records ultimately would have
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`Government’s Response to Defendants’
`Motion to Compel Discovery
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`Case 3:18-cr-04683-GPC Document 265 Filed 08/06/21 PageID.2993 Page 6 of 8
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`been discovered by lawful means. Nix v. Williams, 467 U.S. 431, 444
`(1984). Because the Company A information and records would be
`inevitably discovered through the lawful means of a subpoena to Company
`A, the defendants’ claim of a Fourth Amendment violation is without
`merit. In fact, to the extent that any “purloined” records were received
`from either Anon-1 or CY, it was well after the subpoenas were issued.
`On its face, it appears that the defense’s motion to compel seeks
`documents related to its speculation that SS obtained documents from
`private parties they refer to as Company A informants. In support of
`their motion to compel, the defense acknowledges that they are seeking
`this information to mount a Fourth Amendment challenge. Defendants
`allege and have the burden to establish a Fourth Amendment violation,
`namely that a private party acted as an agent or instrument of the
`government. United States v. Cleaveland, 38 F.3 1092, 1093 (9th
`Cir.1994). As best can be discerned, the defense posits that either CY
`or Anon-1 were private parties who acted as agents or instruments of
`the government by acting as an agent of SS, who was in turn an agent of
`the government. The defense has provided no case law to support this
`attenuated argument of agency. Their argument also overlooks the fact
`that CY left Company A’s affiliated business in mid-2013, well before
`SS met with the San Diego prosecution team.
`The defense correctly sets out the two-part inquiry established to
`evaluate a violation of the Fourth Amendment in United States v. Reed,
`15 F.3d 928, 931 (9th Cir. 1994):
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`(1) whether the government knew of and acquiesced in the intrusive
`conduct; and
`(2) whether the party performing the search intended to assist law
`enforcement efforts or further his own ends.
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`Government’s Response to Defendants’
`Motion to Compel Discovery
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`18cr4683-GPC
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`Case 3:18-cr-04683-GPC Document 265 Filed 08/06/21 PageID.2994 Page 7 of 8
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`In looking at step two, if a private party has dual motives, that
`is a “legitimate, independent motivation to further its own ends” and
`a desire to assist law enforcement, the Ninth Circuit requires the Court
`to determine whether “the government’s participation” in the search was
`“so extensive as to trigger Fourth Amendment scrutiny.” Cleaveland at
`1094. It is not enough that the government “used the fruits of the
`search to obtain a warrant.” Id. Instead, the government must have
`“actively” participated in the search. Id. See also United States v.
`Walther, 652 F.2d 788, 792 (9th Cir. 1981) (“The presence of law
`enforcement officers who do not take an active role in encouraging or
`assisting an otherwise private search has been held insufficient to
`implicate Fourth Amendment interests, especially where the private
`party has had a legitimate independent motivation for conducting the
`search.”); Corngold v. United States, 367 F.2d 1, 5–6 (9th Cir. 1966)
`(en banc) (explaining that even when a private party has dual motives,
`a search that law enforcement “joined actively” is equivalent to a
`search by the government).
`Spamhous is an international nonprofit organization whose mission
`is to identify spammers and disrupt spamming-related activities. This
`mission is and was a “legitimate, independent motive” for Spamhaus to
`collect information on Company A. Moreover, as the defense notes, an
`affiliate of Company A was actively suing Spamhaus at the time SS
`provided information to the FBI. This defamation lawsuit provided
`further reason for Spamhaus to seek and collect information about
`Company A. See Ames v The Spamhaus Project Limited [2015] EWHC 127
`(QB)3. The facts therefore show that Spamhaus had legitimate,
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`3 https://vlex.co.uk/vid/craig-ames-and-another-793272033 (last
`accessed August 6, 2021).
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`Government’s Response to Defendants’
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`Motion to Compel Discovery
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`18cr4683-GPC
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`Case 3:18-cr-04683-GPC Document 265 Filed 08/06/21 PageID.2995 Page 8 of 8
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`independent motives for gathering information regarding Company A’s
`spamming activities.
`In contrast, the defense has proffered no evidence that a private
`party illicitly searched Company A, let alone that the government
`encouraged or condoned such an intrusion. Even if such an intrusion had
`occurred, “the subsequent involvement of government agents does not
`retroactively transform the [private party’s] intrusion into a
`government search.” United States v. Sherwin, 539 F.2d 1, 6 (9th Cir.
`1976) (emphasis added). Having provided no facts to support their
`various assertions, the defense has failed to make a threshold showing
`of materiality and their motion should be denied.
`CONCLUSION
`Defendants’ motion is a fishing expedition that lacks both a
`factual basis and legal support. For the foregoing reasons, the United
`States respectfully requests that the court deny the defendants’ motion
`to compel discovery.
`DATED: August 6, 2021
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`Respectfully submitted,
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`RANDY S. GROSSMAN
`Acting United States Attorney
`
`/s/Melanie Pierson
`Assistant United States Attorney
`/s/Sabrina L. Fève
`Assistant United States Attorney
`/s/Candy Heath
`Senior Counsel
`DOJ Computer Crime & Intel. Prop. Sec.
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`Government’s Response to Defendants’
`Motion to Compel Discovery
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