Case 3:18-cr-04683-GPC Document 265-1 Filed 08/06/21 PageID.2996 Page 1 of 7
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`RANDY S. GROSSMAN
`Acting United States Attorney
`MELANIE K. PIERSON
`Assistant U.S. Attorney
`California State Bar Nos. 112520
`Federal Office Building
`880 Front Street, Room 6293
`San Diego, California 92101-8893
`Telephone: (619) 546-7976
`
`Attorneys for Plaintiff
`United States of America
`
`UNITED STATES DISTRICT COURT
`
`SOUTHERN DISTRICT OF CALIFORNIA
`
`UNITED STATES OF AMERICA,
`Case No. 18-cr-4683-GPC
`
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`DECLARATION OF ASSISTANT U.S.
`
`Plaintiff,
`ATTORNEY MELANIE K. PIERSON IN
`
`SUPPORT OF UNITED STATES’ RESPONSE
`v.
`
`TO MOTION TO COMPEL DISCOVERY
`
`REGARDING INFORMANT
`JACOB BYCHAK et. al.,
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`
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`Defendants.
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`I, Melanie K. Pierson, hereby submit the following declaration in
`support of the United States’ response and opposition to the
`defendants’ motion for discovery regarding an informant in this case.
`I state, under penalty of perjury, that I know the following to be
`true, based on my review of the files and records of the case:
`1.
`I have been employed as an Assistant United States Attorney
`in the United States Attorney’s Office for the Southern
`District of California since 1987. I am one of the
`prosecutors assigned to the investigation and prosecution of
`Jacob Bychak, Mark Manoogian, Mohammed Abdul Qayyum and Petr
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`RANDY S. GROSSMAN
`Acting United States Attorney
`MELANIE K. PIERSON
`Assistant U.S. Attorney
`California State Bar Nos. 112520
`Federal Office Building
`880 Front Street, Room 6293
`San Diego, California 92101-8893
`Telephone: (619) 546-7976
`
`Attorneys for Plaintiff
`United States of America
`
`UNITED STATES DISTRICT COURT
`
`SOUTHERN DISTRICT OF CALIFORNIA
`
`UNITED STATES OF AMERICA,
`Case No. 18-cr-4683-GPC
`
`
`DECLARATION OF ASSISTANT U.S.
`
`Plaintiff,
`ATTORNEY MELANIE K. PIERSON IN
`
`SUPPORT OF UNITED STATES’ RESPONSE
`v.
`
`TO MOTION TO COMPEL DISCOVERY
`
`REGARDING INFORMANT
`JACOB BYCHAK et. al.,
`
`
`
`Defendants.
`
`
`
`
`I, Melanie K. Pierson, hereby submit the following declaration in
`support of the United States’ response and opposition to the
`defendants’ motion for discovery regarding an informant in this case.
`I state, under penalty of perjury, that I know the following to be
`true, based on my review of the files and records of the case:
`1.
`I have been employed as an Assistant United States Attorney
`in the United States Attorney’s Office for the Southern
`District of California since 1987. I am one of the
`prosecutors assigned to the investigation and prosecution of
`Jacob Bychak, Mark Manoogian, Mohammed Abdul Qayyum and Petr
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`Case 3:18-cr-04683-GPC Document 265-1 Filed 08/06/21 PageID.2997 Page 2 of 7
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`Pacas in Criminal Case No, 18cr-4683-GPC. That case is
`currently set for trial beginning November 30, 2021.
`On December 23, 2014, the United States obtained a search
`warrant for the email account of defendant Mark Manoogian at
`Company A. Six months later, the government obtained warrants
`for four other Company A email accounts, and the email
`account of Daniel Dye. The search warrants were provided to
`the defendants in this case as part of discovery production
`4, on January 23, 2019. The records obtained pursuant to
`these warrants were disclosed to the defense in production 3
`on December 19, 2018, with a bates number prefix noting that
`they were emails which also provided the last name or
`initials of the holder of the email account. Not every email
`account held data within the scope the warrant, so there are
`not records provided for each email address sought in the
`warrants. In setting out the probable cause, the affidavits
`in support of the warrants did not rely on internal Company
`A documents obtained via Spamhaus, but instead relied upon
`emails obtained from the initial warrant and/or emails
`obtained from a hosting company.
`On September 22, 2016, the United States issued a subpoena
`duces tecum for the records of the company that employed
`Daniel Dye. On September 23, 2016, the United States issued
`subpoenas duces tecum to Company A and five other related
`companies. The records obtained via these subpoenas have been
`disclosed to the defendants in discovery, with a bates number
`2
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`Case 3:18-cr-04683-GPC Document 265-1 Filed 08/06/21 PageID.2998 Page 3 of 7
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`4.
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`prefix that would identify the origin of the records. I am
`informed by the assigned paralegal that of the approximately
`1,904,907 pages of discovery provided to date, about
`1,365,663 pages, or about 70%, were obtained via these six
`subpoenas. For ease of presentation at trial, the government
`intends to offer the internal Company A records obtained via
`grand jury subpoenas as evidence in trial, although they may
`be duplicative of documents obtained earlier in the
`investigation via search warrant or from hosting companies
`or ISPs, as documented in the reports made available to the
`defense.
`The source of information at Spamhaus (Spamhouse Source, or
`SS) indicated to the FBI in 2014 that Spamhaus received
`information from an anonymous private party (Anon-1) who
`appeared to be a Company A insider. SS provided the email
`address of Anon-1 to the FBI. On June 3, 2014, the FBI reached
`out to Anon-1 via email. Anon-1 responded to the FBI via
`email on June 3 and 11, 2014, with questions about how his/her
`identity could be protected. The FBI requested that they
`speak by phone or in person. The FBI did not, however,
`ultimately meet with or speak by telephone with anyone who
`identified as Anon-1. The FBI never received any emails from
`Anon-1 after June 11, 2014. The email exchange between Anon-
`1 and the FBI, together with a report providing the above
`information, was disclosed to the defense on August 6, 2021.
`This information was not disclosed previously because the
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`Case 3:18-cr-04683-GPC Document 265-1 Filed 08/06/21 PageID.2999 Page 4 of 7
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`contact did not result in the receipt of any evidence by the
`government.
`On January 10, 2018, counsel for the individual whom SS
`speculated might be Anon-1 provided four documents to the
`government from his client (referred to herein as CY). Those
`documents included a 10-page document entitled “Potential
`helpful info” and the name of the client, a document entitled
`“3-info.txt,” a document entitled “message_from_kim_and-
`jake.168.129.txt”
`and
`a
`document
`entitled
`“yahoo_bulk_delivery-report.168.129.txt.” These documents
`were disclosed to the defense on August 6, 2021, as potential
`advance Jencks material.
`An FBI report of the interview of CY, in the presence of
`counsel, in December of 2017 was disclosed to the defense in
`discovery as part of production 2 on December 4, 2018. The
`report of interview does not indicate that CY identified
`him/herself as the anonymous private party who provided
`information to Spamhaus or communicated with the FBI in 2014.
`The report of interview indicates that CY was employed by a
`vendor supplying services to Company A, which was acquired
`by Company A in 2011. The report indicates that CY remained
`employed for three months after the acquisition, and then
`began working for a firm owned in part by the owner of Company
`A. The report further indicates that CY left that employment
`in mid-2013 to form an unrelated firm.
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`Case 3:18-cr-04683-GPC Document 265-1 Filed 08/06/21 PageID.3000 Page 5 of 7
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`The reports of contact with SS were provided in discovery
`production 2 on December 4, 2018. The reports set forth the
`information provided by SS, including any documents provided,
`and identify the date that such information and/or documents
`were provided. The government sent a letter to all defense
`counsel by email on March 28, 2019, indicating that the
`documents provided by SS to the government during the
`interview of SS in San Diego on June 2, 2014, were provided
`in a discrete discovery production (number 6, which included
`an index), which was provided that same date. One additional
`file provided in digital format during that meeting was
`disclosed on August 6, 2021, after it was noted it was not
`included in Production 6.
`The bulk of the emails between the FBI and SS were produced
`in discovery productions 25 through 27, between September
`30, 2020, and March 9, 2021. A few additional emails have
`been produced in later discovery productions as they were
`received. To the extent that there were any documents sent
`by SS to the FBI, they were included in the discovery as a
`separate document immediately following the email. In this
`manner, the defense can determine what documents were
`provided to the government via email by SS, and the date the
`documents were provided.
`The production of the emails between the FBI and Spamhaus
`took some time, because as the prosecution team was reviewing
`the emails, a zip file was found which contained an email
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`from outside counsel for Company A. On September 23, 2020,
`the prosecution team requested a review of the zip file and
`all remaining emails between the FBI and Spamhaus by a filter
`team. Review of those materials was conducted by a filter
`team, and after December 3, 2020, the non-privileged
`materials were released by the filter team to the prosecution
`team, and thereafter disclosed to the defense in the
`discovery productions discussed above. The prosecution team
`did not examine any of the materials that may have been
`withheld by the filter team.
`10. The United States has provided the defense with the reports
`of contacts with SS, which document the information and
`documents provided, and the dates upon which that contact
`occurred. The United States 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, again which show
`the dates of transmission. The defense is therefore in
`possession of the information received by the government from
`SS and the dates upon which the information was received.
`There is no evidence in any of these materials that the FBI
`directed 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
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`Case 3:18-cr-04683-GPC Document 265-1 Filed 08/06/21 PageID.3002 Page 7 of 7
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`DATED:
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`been disclosed, and the prosecution team has no further
`information in its possession to provide regarding that
`subject.
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`August 6, 2021
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`MELANIE K. PIERSON
`Assistant U.S. Attorney
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