Case 3:18-cr-04683-GPC Document 282-2 Filed 09/20/21 PageID.3207 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
`Tel: (949) 361-2822
`Email: dwiechert@aol.com
` jessica@wmgattorneys.com
` william@wmgattorneys.com
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`Attorneys for Defendant
`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 MOTION FOR
`RECONSIDERATION OF MOTION
`FOR DISCOVERY OF CONFIDENTIAL
`INFORMANT
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`Hearing Date: October 4, 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:
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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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`DECLARATION OF JESSICA C. MUNK
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`Case 3:18-cr-04683-GPC Document 282-2 Filed 09/20/21 PageID.3208 Page 2 of 4
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`2. On March 15, 2019, Defendants jointly moved to compel discovery relating to
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`the Spamhaus confidential informant, requesting, inter alia, that the Court order the
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`government to provide Defendants his full name. Dkt. No. 71. On April 30, 2019, the
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`Court denied this motion. Dkt. No. 93.
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`3. On February 12, 2021, almost two years after the Court’s decision, Defendants
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`received the government’s 26th document production. Included within that production
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`were various emails between the Spamhaus informant and FBI Special Agent Charles
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`Chabalko between May 2014 and through and after the filing of the indictment in 2018.
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`True and correct copies of this email correspondence thread was attached as Exhibits A to
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`C to the Declaration of Jessica Munk dated July 30, 2021 and filed as Dkt. Nos. 257-3
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`through 257-5. These emails reflect close cooperation between the Spamhaus informant
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`and the government during its investigation of Defendants, including references to the
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`Spamhaus informant having communications with a Company A insider who was
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`interested in cooperating against Company A.
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`4. Also included within this production of emails were references to the Spamhaus
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`informant obtaining confidential internal documents from Company A via this Company
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`A insider, with the Spamhaus informant advising Agent Chabalko on September 27, 2017
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`that the Company A insider had “sent internal emails implicating various people of doing
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`various things.” This email is reflected in Dkt. No. 257-5.
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`5. On August 6, 2021, the government made its 39th document production.
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`Included within were documents pertaining to the Spamhaus informant. On one document
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`the government failed to redact the informant’s first name, and on another document the
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`government did not redact his last name, allowing Defendants to piece together the
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`Spamhaus informant’s full name. Shortly after this was discovered, defense counsel
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`alerted government counsel to these omitted redactions. Government counsel requested
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`that the documents be destroyed and that Defendants not use the informant’s actual name
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`in their trial preparation, to which all defense counsel agreed.
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`6. Defendants intend to both file a motion to suppress the internal Company A
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`DECLARATION OF JESSICA C. MUNK
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`Case 3:18-cr-04683-GPC Document 282-2 Filed 09/20/21 PageID.3209 Page 3 of 4
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`documents that the Spamhaus informant forwarded to the government and request a
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`Kastigar hearing to determine the extent of the government’s use of those documents and
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`the leads and information derived therefrom. This motion will require Defendants to
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`demonstrate that Spamhaus was a “state actor” when it interacted with the Company A
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`insider vis-à-vis his theft of the documents. Being able to interview the Spamhaus
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`informant, or subpoena the informant to compel disclosure of the communications with
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`the Company A insider is thus of critical importance, and Defendants cannot coordinate
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`these activities without this discovery and being able to utilize his full name.
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`7. At the time of the Court’s April 2019 decision, Defendants did not have the
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`email correspondence between the FBI and the Spamhaus informant evidencing his heavy
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`involvement in the government’s investigation and his potential role in the theft of
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`confidential Company A documents – these discovery productions were not provided to
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`the defense until earlier this year. Simply put, in April 2019 Defendants did not have the
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`facts showing that the Spamhaus informant is a key component to Defendants’ anticipated
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`Fourth Amendment challenge.
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`8. Indeed, as only one example, it was not until August of this year, after the Court
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`ordered the government to have the Spamhaus informant identify which documents he
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`had received from the Company A informant, that the government produced emails
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`between the FBI and the Spamhaus informant showing that the informant assisted the
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`government in circumventing the attorney-client privilege in those documents taken from
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`Company A. Specifically, the government produced a document “From Spamhaus”
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`containing summaries of various emails and explaining that “I found the C[] Y[] email
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`documents, and to avoid any potential attorney/client privilege issues (even though they
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`were sent voluntarily by Y[] and not by their attorney herself), I will only provide the
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`headers of the emails as well as a summary of the contents to provide some context.” A
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`true and correct redacted copy of the relevant portions of this email is attached as Exhibit
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`C to the Declaration of Jessica C. Munk In Support of Motion to Compel Discovery
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`Relating to Spamhaus’ History of Cooperating With Governmental Investigations.
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`DECLARATION OF JESSICA C. MUNK
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`Case 3:18-cr-04683-GPC Document 282-2 Filed 09/20/21 PageID.3210 Page 4 of 4
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`I declare under the penalty of perjury that the foregoing is true and correct.
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`Executed on September 20, 2021 in San Juan Capistrano, California.
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`/s/Jessica C. Munk
`Jessica C. Munk
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`4
`DECLARATION OF JESSICA C. MUNK
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