Case 3:18-cr-04683-GPC Document 283 Filed 09/27/21 PageID.3212 Page 1 of 17
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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
`
`UNITED STATES DISTRICT COURT
`
`SOUTHERN DISTRICT OF CALIFORNIA
`
`UNITED STATES OF AMERICA,
`Case No. 18cr4683-GPC
`
` UNITED STATES’ CONSOLIDATED
`
`Plaintiff,
`RESPONSE IN OPPOSITION TO
`
`DEFENDANTS’ MOTIONS FOR
`v.
`
`SPAMHAUS’S HISTORY OF
`
`GOVERNMENT CONACTS [ECF NO.
`JACOB BYCHAK et. al.,
`281] & RECONSIDERATION
`
`REGARDING THE CONFIDENTIAL
`
`Defendants.
`INFORMANT [ECF NO. 2820
`
`
`
`
`
`I.
`INTRODUCTION
`Defendants’ motion to compel discovery of “all documents and
`information relating to all other occasions of Spamhaus aiding the
`government in any investigation or prosecution related to violations of
`the CAN-SPAM Act or other federal statutes,” ECF No. 281 at 2, and their
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`Case 3:18-cr-04683-GPC Document 283 Filed 09/27/21 PageID.3213 Page 2 of 17
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`renewed motion to disclose the identity of the Spamhaus Source (“S.S.”),
`ECF No. 282, should be denied because these conjoined motions are
`factually and legally baseless.
`The defense offers two new pieces of evidence in support of their
`motions. The first is an FBI report clarifying that SS was not a
`Confidential Human Source for the FBI until one month before this case
`was indicted, and the second is an excerpt from the email from SS
`identifying the 11 emails obtained from C.Y., taken out of context,
`which the defense fantastically misrepresents as assisting “the
`government in circumventing attorney-client privilege.” ECF No. 281-1,
`Exs. B & C.
`Upon careful review, neither of these documents support their
`motions. The eleven emails the defense seeks to use to ultimately
`support a motion to suppress the records subpoenaed from Company A were:
`(1) in some cases, first provided to the government by Company A or
`related firms in response to a 2016 grand jury subpoena, (2) not
`provided to the government by SS until 2017 – a year after the grand
`jury subpoenaed records from Company A and three years after the FBI
`obtained search warrants for Company A emails based on probable cause
`statements that made no mention of the disputed emails, and (3) provided
`to SS by an individual known to defendants, who is represented by
`counsel, whom defendants have never sought to interview, and who is the
`only witness who could establish whether or not the emails were, in
`fact, “purloined.” Moreover, neither SS nor the Spamhaus Project can
`provide defendants with the facts needed to justify suppression of
`Company A emails produced pursuant to a 2016 grand jury subpoena based
`on emails transmitted to the government in 2017, so their motions
`therefore must fail on the facts.
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`Government’s Response to Defendants’
`Motion to Compel Discovery
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`Case 3:18-cr-04683-GPC Document 283 Filed 09/27/21 PageID.3214 Page 3 of 17
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`Defendants’ motions are also legally untenable as they rely on
`speculation at odds with the facts, making a threshold showing of
`materiality impossible. See United States v. Santiago, 46 F.3d 885, 894
`(9th Cir. 1995). Defendants overly-broad request for any communications
`between any Spamhaus Project employees and any federal agency relating
`to violations of any federal law is the kind of fishing expedition that
`this Court and others have repeatedly rebuffed, and which runs afoul of
`United States v. Armstrong, 517 U.S. 456, 462 (1996) and its’ long-
`standing prohibition of compelling discovery for similar types of
`speculative “sword” defenses.
`SS is not a percipient witness to any of the events in this case
`and will not be called to testify by the government. The government’s
`interest in protecting the identity of SS remains strong, even if his
`identity has been inadvertently discovered by defense counsel, where
`persons other than the defendants in this case may have reason to resent
`the conduct of the informant. United States v. Long, 533 F. 2d 505 508
`(9th Cir. 1976). Because there are others under investigation by other
`offices of the FBI who may have cause to resent the actions of SS, his
`or her identity should not be disclosed in any form in this case.
`II.
`STATEMENT OF RELEVANT FACTS
`The government incorporates by reference the Statement of Relevant
`
`Facts outlined in its August 6, 2021 brief in opposition to defendants’
`motion to compel discovery relating to the SS, see ECF No. 265, and
`offers the additional information:
`Pursuant to the court’s order of August 20, 2021, the FBI requested
`that SS identify the documents provided to the FBI that were received
`from the individual the defense accuses of “purloining” Company A
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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 283 Filed 09/27/21 PageID.3215 Page 4 of 17
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`internal documents. In response, SS identified 11 emails. These 11
`emails were previously transmitted to the FBI by SS in October of 2017,
`over a year after the grand jury subpoenas were issued for the records
`of Company A.
`After receiving the information from SS, the United States
`identified the 11 emails for the defense. Three of the eleven emails
`received from SS were also provided by Company A or related firms in
`response to the 2016 subpoenas. (See Declaration of Assistant U.S.
`Attorney Melanie K. Pierson, attached hereto as Exhibit A.) Of the 11
`emails, only five include any of the defendants in this case, and only
`one mentions a netblock at issue in this case. The five emails which
`include the defendants or the netblock all were sent between July 28,
`2011, and September 8, 2011. None of the emails obtained from SS are
`intended for use in the government’s case-in-chief, and none provided
`information that was used in charging the defendants in this case. The
`eleven emails at issue are provided as exhibits, filed under seal.
`III.
`THE INFORMATION SOUGHT IS NOT DISCOVERABLE.
`Given that defendants’ two motions to compel discovery rest upon
`the same underlying wish to show that the government violated the
`defendants’ 4th Amendment rights prior to 2016 and thereby tainted the
`ensuing investigation such that suppression of all subpoenaed records
`is warranted, this response addresses both of defendants’ motions.
`The defendants’ first motion, ECF No. 281, seeks overly-broad
`discovery of all other contacts that not just SS, but also any other
`representative of Spamhaus, has ever had with any government agent. In
`support of this motion, defendants speculate that, “Evidence
`elaborating on similar instances of Spamhaus providing a similar level
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`Government’s Response to Defendants’
`Motion to Compel Discovery
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`Case 3:18-cr-04683-GPC Document 283 Filed 09/27/21 PageID.3216 Page 5 of 17
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`of information and/or swiped internal documents as present in this case
`would provide abundant grist to Defendants’ argument that the government
`acquiesced to the purloining of Company A’s confidential documents,”
`and would therefore be “highly material to a Fourth Amendment
`challenge.” ECF No. 281 at 2. This level of speculation, which is in
`contravention to the facts known to all parties, does not rise to the
`level of materiality required to compel discovery.
`Defendant’s second motion, ECF No. 282, seeks to compel disclosure
`of the SS’s identity. This motion similarly fails to make the requisite
`materiality showing. It also overlooks Ninth Circuit precedent that
`requires the district court to conduct an in camera review of an
`informant before compelling disclosure of the informant’s identity.
`A. The Request Lacks Materiality Because It Could Not Help the
`Defendants Prevail in a Motion to Suppress.
`To compel discovery, defendants “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.’” Santiago, 46 F.3d at 894 (9th Cir. 1995) (quoting United
`States v. Mandel, 914 F.2d 1215, 1219 (9th Cir. 1990)). “Neither a
`general description of the information sought nor conclusory
`allegations of materiality suffice.” Id. To meet this threshold,
`defendants argue that “[t]he opportunity to interview this Spamhaus
`informant and/or call the informant as a witness regarding the potential
`illegal acquisition of Company A records would shed light on the extent
`of Spamhaus’ assistance to the government here and the question of
`Spamhaus being a “state actor” for Fourth Amendment purposes, a question
`critical to Defendants’ motion to suppress.” ECF No. 282 at 2.
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`Government’s Response to Defendants’
`Motion to Compel Discovery
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`Case 3:18-cr-04683-GPC Document 283 Filed 09/27/21 PageID.3217 Page 6 of 17
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`The problem with defendants’ representation is that it relies on
`speculation and ignores the facts before it. Even if materiality has a
`low threshold, it still needs to be more than an educated guess about
`the existence or importance of an alleged event. United States v.
`Salyer, 271 F.R.D. 148, 158 (E.D.Cal. July 9, 2010). Nothing that SS or
`any other Spamhaus representative could say can alter the facts
`regarding the timing of the receipt of the 11 emails versus the issuance
`of the grand jury subpoenas. 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 been discovered by lawful means. Nix v. Williams,
`467 U.S. 431, 444 (1984).
`Defendants offer no evidence that SS tasked anyone at Company A to
`purloin emails, let alone did so with the government’s encouragement,
`knowledge, or consent. To the contrary, Defendants offered Exhibit C
`ECF No. 257-5,1 an email dated September 27, 2017, wherein SS advised
`the FBI, “So far I have not included anything our informants have given
`us.” In the email, SS asked the FBI if it was interested in receiving
`the internal emails, which would not be a question if SS had been tasked
`with obtaining such emails. If SS had not provided the government with
`any internal Company A documents prior to September of 2017,
`subsequently provided emails cannot form a basis to suppress evidence
`obtained via grand jury subpoenas issued a year earlier.
`The government has provided the defense with the reports of
`contacts with SS, which document the information and records that SS
`provided, and the dates upon which the contact or production occurred.
`The government has also provided the defense with the emails between
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`1 The bates stamp on Exhibit C is [Company A]-DISC26-02119.
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`Government’s Response to Defendants’
`18cr4683-GPC
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`Motion to Compel Discovery
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`Case 3:18-cr-04683-GPC Document 283 Filed 09/27/21 PageID.3218 Page 7 of 17
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`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
`from SS and the dates upon which the information was received.
`The defense also has the two search warrant affidavits that the
`FBI prepared prior to 2016 that lay out, in detail, the facts the FBI
`believed showed probable cause to believe that evidence of a crime would
`be found in Company A email accounts. There is no evidence in any of
`these materials that the FBI directed or encouraged SS to attempt to
`obtain internal Company A documents, let alone that they did so prior
`to 2016. Defendants’ insistence on speculating, notwithstanding these
`contradictory records, that there may have been an allegedly illegal
`acquisition of Company A emails prior to 2016 is insufficient to
`demonstrate materiality.
`Simply put, there is nothing that SS or any other Spamhaus
`representative could say about the transmission of emails to the FBI in
`2017 that could lead to the suppression of evidence inevitably
`discovered via a grand jury subpoena issued in 2016. Moreover,
`prosecutors were not aware of the 11 emails until 2020. The 11 emails
`were not presented to the grand jury and will not be used by the
`government in its case-in-chief at trial. All of these facts indicate
`that the 11 emails were not material to the investigation and
`prosecution of this case.2
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`2 Moreover, it is apparent by the fact that SS continues to send the
`FBI unsolicited emails regarding this case notwithstanding the
`obvious fact that said emails will be produced as discovery and
`likely litigated that SS is independent of and uncontrolled by the
`government.
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`Government’s Response to Defendants’
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`Motion to Compel Discovery
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`Case 3:18-cr-04683-GPC Document 283 Filed 09/27/21 PageID.3219 Page 8 of 17
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`To succeed in their motion to suppress evidence, defendants must
`also satisfy the two-prong test in United States v. Reed, 15 F. 3d 928,
`931 (9th Cir.1994), namely that: (1) the government knew of and
`acquiesced in the intrusive conduct, and (2) SS performed the search
`intending to assist law enforcement efforts rather than to further
`his/her own ends. 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.” United States
`v. Cleaveland, 38 F.3 1092, 1094 (9th Cir. 1994). 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.”)
`As defendants recognize, the Spamhaus Project 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 SS and Spamhaus to collect information on
`Company A, particularly in light of the concurrent litigation involving
`Spamhaus and Company A. Defendants have 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
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`Government’s Response to Defendants’
`Motion to Compel Discovery
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`Case 3:18-cr-04683-GPC Document 283 Filed 09/27/21 PageID.3220 Page 9 of 17
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`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 defendants rely purely on speculation and have
`failed to make the requisite showing of materiality.
`B. Records Sought for a “Shield” Claim are not Covered by Rule 16.
`The Supreme Court has ruled that the need for discovery to explore
`a hope, despite all evidence to the contrary, that SS and the FBI
`knowingly set out to purloin internal Company A documents is not
`supported by Rule 16 of the Federal Rules of Evidence. In Armstrong,
`the Court denied the defendant’s request for information relating to a
`claim of selective prosecution, finding it not discoverable under Rule
`16. 517 U.S. at 462. The Court held that information sought for reasons
`other than responding to the government’s case-in-chief are not items
`“material to the defense” as contemplated by Rule 16. Id. The Court
`distinguished between “shield” and “sword” claims, finding that shield
`claims (which defend against the government’s case-in-chief) fall
`within Rule 16, while sword claims (which challenge the prosecution’s
`conduct of the case) do not.
`Bolstering a motion to suppress evidence is not relevant to
`defending the government’s case-in-chief and does not entitle the
`defendant to discovery. United States v. Hunt, 2013 WL 5279075 *1 (E.D.
`Cal.) (discovery regarding IRS Fraud Technical Advisors denied in a tax
`case). “To the extent Defendant wishes to investigate the informant so
`that Defendant may present a motion to suppress, Defendant is not
`entitled to discovery for that purpose.” United States v. Hood, 2020 WL
`7714207 *4 (E.D. Cal.) (discovery related to informant in a drug case
`denied).
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`Government’s Response to Defendants’
`Motion to Compel Discovery
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`Case 3:18-cr-04683-GPC Document 283 Filed 09/27/21 PageID.3221 Page 10 of 17
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`In United States v. Chon, 210 F. 3d 990, 995 (9th Cir.2000), the
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`defendants submitted a discovery request to the government for:
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`all materials pertinent to NCIS activities targeting civilians,
`materials implicating widespread and repeated violations of the
`PCA [Posse Comitatus Act] in the State of Hawaii and within the
`United States, information reflecting warnings to the NIS/NCIS
`against violating the PCA, and materials of all Organized Crime
`Drug Enforcement Task Force activities targeting civilians.
`The defense sought the records to challenge the government’s conduct in
`the case, making a broad claim for discovery similar to the one that
`the defendants in this case. The court denied the request as not related
`to a “shield” claim, citing Armstrong. Id. Further amplifying Armstrong,
`in United States v. McDuffie, 2012 WL 12897946 *3 (E.D. Wash.), the
`court granted discovery sought for a motion to suppress evidence,
`finding that the defense (defendant did not commit crime because drugs
`were planted by agents) was a “shield” under Armstrong. But see, United
`States v. Soto-Zuniga, 837 F. 3d 992. 1000-1001 (9th Cir. 2016) (reading
`Armstrong to apply only in cases of selective prosecution).
`C. The Overly Broad Request Seeks Records Unrelated to this Case.
`The Ninth Circuit cases that have permitted discovery related to
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`“sword” claims have done so narrowly. For example, in United States v.
`Cedano Arellano, 332 F. 3d 568, 570 (9th Cir. 2003) and United States
`v. Thomas, 726 F.3d 1086, 1096–97 (9th Cir. 2013), the Ninth Circuit
`allowed discovery related only to the specific narcotics detection
`canine involved in the search of the defendant to support a motion to
`suppress, not the type of wide-ranging discovery requested in this case.
`In the case of United States v. Wolfenbarger, 2018 WL 4913753 (N.D.
`Cal.), the defendant was charged with child pornography offenses after
`Yahoo! sent a CyberTipline report to the FBI. The defendant sought
`extensive discovery, in support of a motion to suppress, to show that
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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 283 Filed 09/27/21 PageID.3222 Page 11 of 17
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`the FBI had knowledge of the intercepts by Yahoo! and acquiesced, making
`Yahoo! a state actor. The original discovery order would have required
`the government to
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`contact all 195 FBI field offices that received tips and review
`all case files associated with the 288 CyberTipline reports,
`the result of 100 or more search warrants executed on Seller
`Accounts, results of search warrants conducted in all spin-off
`cases executed by FBI field offices, results from grand jury
`subpoenas on associated financial accounts in all spin-off
`cases, 505 return results from approximately 421 administrative
`subpoenas in the main OST case, subpoenas issued in all spin-
`off cases, and documentation of interviews of witnesses,
`targets, and victims.
` The reviewing court, in rejecting the overly-broad order, found it to
`be a “akin to the speculative fishing expedition that Defendant sought
`in his first motion to compel and that the Magistrate Judge rejected.”
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`Defendants’ request for “[e]vidence elaborating on similar
`instances of Spamhaus providing a similar level of information and/or
`swiped internal documents” is akin to the speculative fishing expedition
`that Wolfenbarger rejected and that this court has thus far denied in
`this case. The defense is in full possession of all the records of
`communications between SS and the FBI related to this case. They also
`possess the 11 documents provided to the FBI by SS that were received
`from the individual the defense accuses of purloining Company A
`documents, and the dates upon which the documents were provided. The
`records of what SS may have done with other FBI offices or what other
`Spamhaus contacts may have done with the FBI on other cases provides no
`evidence regarding whether the FBI in this case directed SS to use a
`third party to obtain internal Company A records.
`D. The New Evidence Does Not Support the Motion.
`As new evidence in support of this motion, the defense falsely
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`claims that the FBI has used SS as a “confidential informant” in this
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`Government’s Response to Defendants’
`18cr4683-GPC
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`Motion to Compel Discovery
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`Case 3:18-cr-04683-GPC Document 283 Filed 09/27/21 PageID.3223 Page 12 of 17
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`case since 2013, ECF No. 281 at 4, and then recently attempted to
`“rewrite history” regarding the status of SS. The falsity of this notion
`is evidenced by the FBI 302 attached as Exhibit B, ECF No. 281-4, to
`the declaration in support of their motion. In that report, the FBI
`notes that SS did not become a confidential source for the FBI until
`October 12, 2018, a month before the indictment in this case. The
`report goes on to state, ”prior to the CHS being opened, this individual
`voluntarily provided information to the FBI, at no direction of any
`Special Agents.”
`In fact, SS became a CHS in 2018 for another FBI field office on
`a matter not related to this case. When discovery was produced in
`December of 2018 in this case, when redacting the name of SS, the FBI
`replaced it with the new CHS number. When this was discovered, the
`defense was provided with copies of the original reports with the name
`of SS redacted, to demonstrate there were no other changes to the
`records, and the 302 regarding the redaction was prepared. In providing
`this report to the defense, the government was not “rewriting history”
`but was instead, consistent with its discovery obligations, clarifying
`a misleading impression provided by the method used to redact the
`identity of SS from prior discovery.
`The United States provided the defense with the email communication
`from SS identifying the 11 emails. In support of their motion, the
`defense points to one comment in the 31-page response from SS they
`falsely claim shows “that the informant assisted the government in
`circumventing the attorney-client privilege in those documents taken
`from Company A.” ECF No. 281 at 6. In that comment, SS stated that he
`was identifying the 11 emails by their headers and a summary of the
`content “to avoid any potential attorney-client privilege issues (even
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`Government’s Response to Defendants’
`Motion to Compel Discovery
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`Case 3:18-cr-04683-GPC Document 283 Filed 09/27/21 PageID.3224 Page 13 of 17
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`though they were sent voluntarily by Y[] and not by their attorney…).”
`Rather than assisting in circumventing attorney-client privilege, SS
`exhibited a sensitivity to the issue. This sensitivity was demonstrated
`in emails provided earlier to the court by the defense wherein SS noted
`the availability of internal emails that involved an attorney and
`inquired whether the FBI wanted such documents.3 ECF 257-5, Exhibit C.
`When the comment is viewed with the entirety of the 31-page email, and
`the fact that these 11 emails had been previously provided in full to
`the defense, the claim that the government and SS conspired to
`circumvent the attorney-client privilege in this case does not survive
`careful scrutiny.
`E. The Identity of SS Should Not be Further Disclosed Due to
`Participation in Other Cases.
`The informant’s privilege generally allows the government to
`withhold the identity of persons who have furnished information to law
`enforcement officials regarding violations of law. United States v.
`Krumwiede, 2020 WL 6145115 *1 (D. Oregon); Roviaro v. U.S. 353 U.S. 53,
`59 (1957). In each case, the court must “balanc[e] the public interest
`in protecting the flow of information against the individual's right to
`prepare his defense.” Roviaro, 353 U.S. at 62. In the Ninth Circuit,
`“[t]o obtain disclosure, a defendant must show a need for the
`information, and in doing so, must show more than a mere suspicion that
`the informant has information which will prove relevant and helpful to
`his defense, or that will be essential to a fair trial.” United States
`
`3 Similarly, the government exhibited sensitivity to the issue by
`conducting a taint review of the emails, once potential attorney-client
`documents were discovered, which delayed the discovery production. See
`Declaration of Assistant U.S. Attorney Melanie K. Pierson, ECF 265-1,
`¶9.
`
`Government’s Response to Defendants’
`Motion to Compel Discovery
`
`18cr4683-GPC
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`Case 3:18-cr-04683-GPC Document 283 Filed 09/27/21 PageID.3225 Page 14 of 17
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`v. Henderson, 241 F.3d 638, 645 (9th Cir. 2000), as amended (Mar. 5,
`2001).
`Even when the identity of the informant is known to counsel in the
`instant case, the informant privilege remains if “persons other than
`the particular defendant may have cause to resent the informant’s
`conduct.” United States v. Long, 533 F. 2d 505, 508 (9th Cir. 1976);
`Krumwiede, 2020 WL 6145115 at *2. In this case, SS is providing
`information to at least one other FBI field office in furtherance of
`criminal investigations. As such, there remain others who might “have
`cause to resent” the conduct, so the privilege remains.
`The defendant has the burden to prove the need for disclosure of
`a confidential informant. United States v. Sanchez, 908 F.2d 1443, 1451
`(9th Cir.1990). In Gonzalo Beltran, 915 F.2d 487, 488-89, (9th Cir.
`1990), the Ninth Circuit set forth three factors a court must consider
`to determine whether to order disclosure of identifying information
`regarding an informant: (1) the degree of the informant's involvement
`in the criminal activity; (2) the relationship between the defendant's
`asserted defense and the likely testimony of the informant; and (3) the
`government's interest in non-disclosure. In this case, SS was not at
`all involved in the criminal conduct at issue. There is no dispute that
`SS is not a percipient witness to any of the offenses charged in the
`indictment, and will not be called as a witness in the government’s
`case in chief. The potential testimony of SS relates only to the
`speculative claim of a Fourth Amendment violation, and not to the
`defendants’ potential defenses to the charges in the indictment.
`Finally, the government’s interest in non-disclosure remains strong as
`SS continues to provide information on other criminal conduct to offices
`of the FBI in other areas of the United States.
`14
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`
`Government’s Response to Defendants’
`Motion to Compel Discovery
`
`18cr4683-GPC
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`Case 3:18-cr-04683-GPC Document 283 Filed 09/27/21 PageID.3226 Page 15 of 17
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` United States v. Napier, 436 F.3d 1133, 1136-39 (9th Cir. 2006)
`further rebuffs defendants’ argument that the identity of SS is
`allegedly material because it might support an effort to suppress
`documents subpoenaed from Company A. In Napier, the government produced
`a search warrant affidavit redacted to conceal identifying information
`about a government informant. Id. at 1136. The defendant moved to unseal
`the redacted portion, citing the need to pursue a Franks hearing, while
`the government opposed the motion based on the need to protect the
`integrity of an ongoing criminal investigation and the informant’s
`safety. Id. The district court denied the defendant’s motion to compel
`discovery and the Ninth Circuit affirmed. Noting the defendant’s failure
`to make a “substantial preliminary showing of a[n] entitlement to a
`Franks hearing,” the Ninth Circuit held that, before providing an
`informant’s identifying information, the district court should first
`conduct “an in camera hearing where the judge would question the
`confidential informant to determine whether the sealed information
`involving the informant was truthful, and whether Napier had made a
`threshold showing of falsehood.” Id. at 1138-39.
`Napier reiterated earlier Ninth Circuit decisions that ruled that
`defendants seeking to unmask an informant “must show more than a mere
`suspicion that the informant has information which will prove relevant”
`and that in camera review of an informant is a requisite precondition
`before disclosing the informant’s identity. United States v. Henderson,
`241 F.3d 638, 645 (9th Cir. 2000), as amended (Mar. 5, 2001) (internal
`citations and quotation marks omitted). “Balancing the defendant’s and
`the government’s interests, a district court must hold an in camera
`hearing whenever the defendant makes a ‘minimal threshold showing’ that
`disclosure would be relevant to at least one defense.” Id. (citing
`15
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`
`Government’s Response to Defendants’
`Motion to Compel Discovery
`
`18cr4683-GPC
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`Case 3:18-cr-04683-GPC Document 283 Filed 09/27/21 PageID.3227 Page 16 of 17
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`United States v. Spires, 3 F.3d 1234, 1238 (9th Cir. 1993); United
`States v. Sai Keung Wong, 886 F.2d 252, 256 (9th Cir. 1989)). Under
`this controlling Ninth Circuit authority, then, even if defendants
`satisfy the threshold showing of materiality, the remedy is for the
`Court to conduct an in camera review – not, as defendants claim, to
`disclose SS’s identity.
` In this case, in camera review may be unnecessary, both because
`the defense has failed to make the requisite showing and also because
`the statements of SS in response to these allegations are already known
`to the parties, as a result of the email sent by SS to the FBI on
`September 21, 2021. This email was produced in discovery and is also
`provided here as Exhibit 14. In that email, SS denied requesting that
`internal Company A documents be