Case 3:18-cr-04683-GPC Document 281-1 Filed 09/20/21 PageID.3164 Page 1 of 12
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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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`
`
`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
`
`Daniel J. Goodrich, BBO 692624 (Pro Hac)
`Ryan Dougherty, BBO 703380 (Pro Hac)
`1 Financial Center
`Boston, MA 02111
`djgoodrich@mintz.com
`rtdougherty@mintz.com
`
`Attorney for Mark Manoogian
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`
`BIRD MARELLA BOXER WOLPERT
`BIENERT KATZMAN
`NESSIM DROOKS LINCENBERG
`LITTRELL WILLIAMS LLP
`RHOW P.C.
`Thomas H. Bienert, Jr., SBN 135311
`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
`Carlos A. Nevarez, SBN 324407
`1875 Century Park East, Floor 23
`903 Calle Amanecer, Suite 350
`Los Angeles, CA 90067
`San Clemente, California 92673
`Telephone: (310) 201-2100
`Telephone: (949) 369-3700
`Email: glincenberg@birdmarella.com
`Email: tbienert@bklwlaw.com
`nvandyk@birdmarella.com
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` jriddet@bklwlaw.com
` dpatrick@birdmarella.com
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` wbernstein@bklwlaw.com
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` cnevarez@bklwlaw.com
`Attorneys for Petr Pacas
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`Attorneys for Mohammed Abdul Qayyum
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`DEFENDANTS’ MOTION TO COMPEL DISCOVERY
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`Case 3:18-cr-04683-GPC Document 281-1 Filed 09/20/21 PageID.3165 Page 2 of 12
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`IN THE UNITED STATES DISTRICT COURT
`
`FOR THE SOUTHERN DISTRICT OF CALIFORNIA
`
`Plaintiff,
`
`UNITED STATES OF AMERICA,
`
`
`
`v.
`
`JACOB BYCHAK, et al.,
`
` Defendants.
`
`
`Case No. 18-CR-4683-GPC
`Honorable Gonzalo P. Curiel
`
`MEMORANDUM OF POINTS AND
`AUTHORITIES IN SUPPORT OF
`DEFENDANTS’ MOTION TO COMPEL
`DISCOVERY RELATING TO
`SPAMHAUS’ HISTORY OF
`COOPERATING WITH
`GOVERNMENTAL INVESTIGATIONS
`
`[Declaration of Jessica C. Munk, Exhibits A-
`C and Proposed Order filed concurrently
`herewith]
`
`Requesting In-Person Hearing
`
`Hearing Date: October 4, 2021
`Hearing Time: 1:00 P.M.
`Department: Courtroom 2D
`
`
`
`
`
`
`MEMORANDUM OF POINTS AND AUTHORITIES
`
`I.
`
`INTRODUCTION
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`
`
`
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`The discovery in this case has revealed that a primary mover behind the
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`government’s investigation and prosecution of Defendants is the Spamhaus Project
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`(“Spamhaus”), the international organization dedicated to its idee fixe of policing
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`commercial email. Spamhaus has provided considerable assistance, information, and
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`resources to the government in this case such as educating the government regarding IP
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`netblocks, updating the government as to Company A’s emailing activity, and compiling
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`an intelligence agency-style dossier of Company A employees. The government and
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`Spamhaus are so joined at the hip that the government sees fit to forward the Spamhaus
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`Case 3:18-cr-04683-GPC Document 281-1 Filed 09/20/21 PageID.3166 Page 3 of 12
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`informant Defendants’ motions for input.
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`A critical component of Spamhaus’ assistance, and the focus of the instant motion,
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`is Spamhaus’ encouraging a Company A insider to purloin confidential internal Company
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`A documents and then subsequently forwarding these documents to the FBI. Defendants
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`intend to make a Fourth Amendment challenge to suppress these documents, which will
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`correspondingly require Defendants to show that Spamhaus is a “state actor” – that the
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`purloining of the internal documents was either done at the direction of the government or
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`with the government’s acquiescence.
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`The chummy relationship between Spamhaus and the government in the instant
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`case is not the two parties’ first dalliance. The public record reflects several other
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`collaborations since at least 2006 where Spamhaus assisted the government in other
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`criminal investigations, which indicates that Spamhaus has aided the government in many
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`other instances that were not made public. At the last hearing, the government referenced
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`the fact that the Spamhaus informant in this case is involved in numerous investigations
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`with the government, the details of which the government has not produced to the
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`Defendants. Evidence elaborating on similar instances of Spamhaus providing a similar
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`level of information and/or swiped internal documents as present in this case would
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`provide abundant grist to Defendants’ argument that the government acquiesced to the
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`purloining of Company A’s confidential documents. In other words, such evidence would
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`be highly material to Defendants’ anticipated Fourth Amendment challenge and thus fall
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`within the ambit of Federal Rule of Criminal Procedure 16.
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`The government has been asked but has refused to provide Defendants with
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`information and documents reflecting all instances in which Spamhaus has assisted
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`federal agencies in other matters. Defendants accordingly move the Court under Rule 16
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`to order the government to provide all documents and information relating to all other
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`occasions of Spamhaus aiding the government in any investigation or prosecution related
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`to violations of the CAN-SPAM Act or other federal statutes.
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`Case 3:18-cr-04683-GPC Document 281-1 Filed 09/20/21 PageID.3167 Page 4 of 12
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`II. FACTUAL BACKGROUND
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`A.
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`Spamhaus’ History of Cooperating with Government Per Publicly
`Available Information
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`Spamhaus was founded in 1998. In 2006, former FBI Assistant Deputy Director
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`Steve Martinez cited a partnership between the FBI and Spamhaus in his testimony to
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`Congress, noting in 2005 “the FBI and United States Postal Inspection Service teamed up
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`with several industry groups such as ... the Spamhaus Project” to create a website that
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`taught laypersons how to avoid being a victim of cybercrimes. March 6, 2006 Testimony
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`of Steven M. Martinez before the House Committee on Small Business Regulatory Reform
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`and Oversight Subcommittee, FBI.GOV, https://archives.fbi.gov/archives/news/testimony/
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`small-business-cyber-security (last accessed September 9, 2021).
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`
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`Between 2006 and 2008, the FBI investigated and enacted a sting operation against
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`the principals of DarkMarket, an online marketplace dedicated to the buying and selling
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`of stolen credit card data. Elinor Mills, Q&A: FBI agent looks back on time posing as a
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`cybercriminal, CNET, https://www.cnet.com/tech/services-and-software/q-a-fbi-agent-
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`looks-back-on-time-posing-as-a-cybercriminal/, (June 29, 2009, 4:13 P.M.). Spamhaus
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`aided in these efforts by creating a fictitious spam profile for one FBI Special Agent J.
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`Keith Mularski, labeling him as a top spammer so as to give Agent Mularski “street cred”
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`to infiltrate DarkMarket. Id. Evidencing a significant level of coordination between
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`Spamhaus and the FBI, this profile was taken down just hours after news reports of the
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`sting were published. Kevin Poulsen, Did Anti-Spam Group Create a Backstory for
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`DarkMarket’s Undercover Fed?, WIRED, https://www.wired.com/2008/10/did-anti-spam-
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`g/ (Oct. 14, 2008, 1:36 P.M.).
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`
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`In 2011, the FBI investigated a cyber ring that sought to infect millions of devices
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`with malware which manipulated internet advertising systems to generate more than $14
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`million in fees for the targeted suspects. After the arrest of six Estonian nationals involved
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`in this plot, the U.S. Attorney for the Southern District of New York lauded the
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`cooperation of several entity partners, including Spamhaus, with Spamhaus helping the
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`government by monitoring the DNS servers which were being affected by the defendants’
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`fraudulent activities. See Operation Ghost Click, FBI.GOV,
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`https://www.fbi.gov/news/stories/internati onal-cyber-ring-that-infected-millions-of-
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`computers-dismantled, (Nov. 9, 2011); FBI Agent Thomas X. Grasso Receives First J.D.
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`Falk Award for Establishing DNS Changer Working Group and Protecting End-Users,
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`M3AAWG.ORG, https://www.m3aawg.org/ news/fbi-agent-thomas-x-grasso-receives-
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`first-jd-falk-award-for-establishing-dns-changer-working, (Oct. 25, 2012).
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`In 2015, an administrator of a botnet1 known as “Bugat” was arrested and charged
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`with conspiracy to distribute malware designed to steal confidential and personal
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`information. The FBI cited Spamhaus as a partner in the investigation in their press
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`release announcing the arrest. Bugat Botnet Administrator Arrested and Malware
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`Disabled, FBI.GOV, https://www.fbi.gov/contact-us/field-offices/pittsburgh/news/press-
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`releases/bugat-botnet-administrator-arrested-and-malware-disabled, (Oct. 13, 2015).
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`Defendants previously moved the Court to order the government to identify all
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`documents in its possession which were forwarded from the Company A informant, via
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`Spamhaus. Dkt. No. 257. At the hearing on this motion, government counsel indicated
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`that the Spamhaus informant “is not just corresponding with the FBI agent here, but also
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`with the FBI agents in other offices.” See Declaration of Jessica C. Munk (“Munk Dec.”)
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`at ¶ 2, Exhibit A.
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`
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`B.
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`Spamhaus’ Assistance to the Government in this Case
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`The investigation into Company A and Defendants has been ongoing since at least
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`2013 when the government first began to utilize a Spamhaus employee as a confidential
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`informant. Since 2013, this informant has repeatedly communicated with the FBI relating
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`to Company A and its email marketing activities, encouraging the FBI to investigate
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`Company A and lending advice on how to do so. In a May 22, 2014 email, the
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`confidential informant confirmed to the FBI that “we’ve got an anonymous informant [in
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`Company A] sending us a ton of info since September 2013,” and asked the FBI “how to
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`possibly bring him on board as an informant.” See Dkt. No. 257-3 at p. Disc26-03284.
`
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`1 A “botnet” is a collection of internet-enabled devices running bots, scripted computer
`programs performing specified actions, controlled by a single entity.
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`Case 3:18-cr-04683-GPC Document 281-1 Filed 09/20/21 PageID.3169 Page 6 of 12
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`FBI Agent Charles Chabalko replied the same day, saying “[t]his would be vital to our
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`investigation if we can bring him aboard. Having an inside person to tie everything
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`together would be extremely helpful.” Id. at p. Disc26-03283. Several weeks later, on
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`June 4, 2014, FBI Agent Chabalko emailed the informant to advise him that “I also
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`emailed the anonymous guy that wants to provide information.” See Dkt. No. 257-4.
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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. See Dkt. No. 257-5. The Spamhaus
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`informant concludes the email stating “[h]opefully you will be interviewing them [the
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`Company A informant] at some point anyway.” Id.
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`Defendants previously moved the Court to order the government to identify all
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`documents in its possession which were forwarded from the Company A informant, via
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`Spamhaus. Dkt. No. 257. Soon after this motion was filed, on August 12, 2021 the
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`government made its 40th document production to the defense, which included an FBI
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`302 whereby the government attempts to rewrite history and distance itself from the
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`Spamhaus informant’s lengthy cooperation with the government, stating the Spamhaus
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`informant was not “officially a CHS for the FBI until 10/12/18.” Munk Dec. at ¶ 3,
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`Exhibit B. This 302 is contrary to the numerous 302s provided by the government in
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`discovery dated 2013 and 2014 hereby the Spamhaus informant is clearly identified as
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`CHS (S-0009118). Id. Also, after Defendants filed their prior motion to compel discovery
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`related to the Spamhaus informant, the government on August 6, 2021 produced over
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`1,800 pages of additional discovery. Included in this production was a dossier from the
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`Spamhaus informant, which was given to the government in June of 2014. The dossier
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`contained Brady material helpful to the defense, and it was not produced until after the
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`defense filed its July 30, 2021 motion to compel discovery. Id. at ¶ 4.
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`On August 20, 2021, the Court granted Defendants’ Motion to Compel Discovery
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`in part and ordered the government to have the Spamhaus informant identify which
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`Case 3:18-cr-04683-GPC Document 281-1 Filed 09/20/21 PageID.3170 Page 7 of 12
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`documents he provided to the government that came from the Company A informant. Dkt.
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`No. 275. On August 25, 2021, government counsel sent the defense a letter delineating
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`which documents the Company A informant gave to Spamhaus. Munk Dec. at ¶ 5.
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`In a recent document production, the government produced emails from August
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`2021 between the FBI and the Spamhaus informant showing that the informant assisted
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`the government in circumventing the attorney-client privilege in those documents taken
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`from Company A. Specifically, the informant provided documents containing summaries
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`of various emails and explaining that “I found the C[] Y[] email documents, and to avoid
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`any potential attorney/client privilege issues (even though they were sent voluntarily by
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`Y[] and not by their attorney herself), I will only provide the headers of the emails as well
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`as a summary of the contents to provide some context.”2 Munk Dec. at ¶ 6, Exhibit C.
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`On August 25 and 26, 2021, defense counsel asked the government to provide all
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`documents and information relating to Spamhaus assisting the government in other
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`investigations or prosecutions apart from the instant case relating to potential violations of
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`the CAN-SPAM Act and other federal statutes. Munk Dec. at ¶ 7. On August 26, 2021,
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`the government declined to do so. Id.
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`III. LEGAL ARGUMENT
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`A. Rule 16 Standard
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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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`2 This email raises 5th and 6th Amendment concerns as well.
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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 Justice Manual (“JM”) § 9-5.001(B)
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`(“Government disclosure of material exculpatory and impeachment evidence is part of the
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`constitutional guarantee to a fair trial.”). Under Brady, evidence favorable to defendant
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`must be turned over by the prosecutor even if it is not otherwise subject to discovery
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`under Rule 16(a). Brady, 373 U.S. at 87.
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`B.
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`The Requested Information/Documentation is Highly Material to a
`Fourth Amendment Challenge
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`The key Fourth Amendment question here is whether the Company A informant(s),
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`the individual(s) 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”, i.e. the Spamhaus confidential
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`informant, or provided them directly to the FBI. If that question is answered in the
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`affirmative, Defendants would be entitled to seek suppression of not only the pilfered
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`evidence, but all evidence subsequently derived therefrom as fruits of the poisonous tree.
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`See Utah v. Strieff, 136 S. Ct. 2056, 2061 (2016) (“[T]he exclusionary rule encompasses
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`both the primary evidence obtained as a direct result of an illegal search or seizure and,
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`relevant here, evidence later discovered and found to be derivative of an illegality, the so-
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`called ‘fruit of the poisonous tree.’”).
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`As the Court recognized in its previous discovery-related order, Dkt. No. 275, the
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`Spamhaus informant’s interactions with the government and the Company A insider are
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`relevant to a potential Fourth Amendment challenge. A corollary then is that Spamhaus’
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`overall history of interacting with and assisting the government in other investigations
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`into commercial email companies and individuals is relevant because such a course of
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`conduct would tend to show the government acquiescing to Spamhaus’ intrusive conduct
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`and Spamhaus’ intent to assist in investigating and prosecuting commercial email
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`Case 3:18-cr-04683-GPC Document 281-1 Filed 09/20/21 PageID.3172 Page 9 of 12
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`companies. See United States v. Reed, 15 F.3d 928, 931 (9th Cir. 1994) (reciting the “two
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`part test” for determining whether a private individual was acting as a “governmental
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`instrument or agent” as “(1) whether the government knew of and acquiesced in the
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`intrusive conduct; and (2) whether the party performing the search intended to assist law
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`enforcement efforts or further his own ends.”).
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`Defendants are not speculating or partaking in a fishing expedition on this point
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`because, by the government’s own admission, the Spamhaus informant here is “not just
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`corresponding with the FBI agent here (i.e. on this case), but also with FBI agents in other
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`offices.” Munk Dec. at ¶ 2, Exhibit A at 8:23-9:1. Evidence of a private party’s continuing
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`collaboration with government investigations has been held to render that private party a
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`“state actor” for Fourth Amendment purposes. See United States v. Walther, 652 F.2d
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`788, 790 (9th Cir. 1981) (holding that an airline employee was a “state actor” given he
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`had provided information to the DEA on eleven previous occasions, received payments
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`ranging from $25 to $800, and because the DEA maintained a confidential informant file
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`for the employee).
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`This information is thus highly material to the defense and can certainly be the
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`basis of a subsequent motion to suppress with potentially materially favorable
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`consequences for the Defendants. Thus, discovery is mandated under Rule 16(a) and
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`Brady. See United States v. Soto-Zuniga, 837 F.3d 992, 1000-02 (9th Cir. 2016) (holding
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`that the district court abused its discretion by not compelling discovery material to
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`defendant’s Fourth Amendment challenge pursuant to Rule 16).
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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 all documents and information
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`relating to Spamhaus interacting with and assisting the government in investigations and
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`prosecutions related to violations of the CAN-SPAM Act or other federal statutes apart
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`from the instant case.
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`//
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`//
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`8
`DEFENDANTS’ MOTION TO COMPEL DISCOVERY
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`Case 3:18-cr-04683-GPC Document 281-1 Filed 09/20/21 PageID.3173 Page 10 of 12
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`
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`Dated: September 20, 2021
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`Dated: September 20, 2021
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`Dated: September 20, 2021
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`Dated: September 20, 2021
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`
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`Respectfully submitted:
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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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`BIENERT KATZMAN
`LITTRELL WILLIAMS LLP
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`By: Whitney Z. Bernstein
` Thomas H. Bienert, Jr.
` James D. Riddet
` Whitney Z. Bernstein
` Carlos A. Nevarez
` 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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`9
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`Case 3:18-cr-04683-GPC Document 281-1 Filed 09/20/21 PageID.3174 Page 11 of 12
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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: September 20, 2021
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`By: s/Jessica C. Munk
` Jessica C. Munk
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`10
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`Case 3:18-cr-04683-GPC Document 281-1 Filed 09/20/21 PageID.3175 Page 12 of 12
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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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`
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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
`
`
`
` 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 September 20, 2021, at San Juan Capistrano, California.
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`s/Jessica C. Munk
`Jessica C. Munk
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