Case 3:18-cr-04683-GPC Document 283-1 Filed 09/27/21 PageID.3229 Page 1 of 6
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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 THIRD 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’ third 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
`Pacas in Criminal Case No, 18cr-4683-GPC.
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`On August 20, 2021, this court ordered the United States to
`ask SS to identify the documents provided by SS to the FBI
`that SS had obtained from CY, an individual believed by the
`defense to have access to internal Company A documents.
`SS replied to this request by email of August 25, 2021, an
`excerpt of which was attached as Exhibit C to the declaration
`of Jessica Munk as evidence in support of the defense third
`motion for discovery related to informants (ECF 281-5). The
`complete email, redacted to protect the identity of SS, is
`filed under seal as Exhibit 17. SS identified eleven emails
`(hereinafter “the Eleven Emails”) received from CY that were
`provided to the FBI. The Eleven Emails were provided to the
`FBI first on October 12, 2017, and again on November 8, 2018,
`after the FBI apparently had difficulty viewing the attached
`files.
`By letter to the defense of August 25, 2021, in response to
`the court’s order of August 20, 2021, I identified by Bates
`number the Eleven Emails, as well as the emails transmitting
`those records. A true and correct copy of this letter,
`redacted to omit the full name of CY, is filed under seal as
`Exhibit 15. True and correct copies of the Eleven Emails
`are filed under seal as Exhibits 2-12. The emails from SS
`transmitting the Eleven Emails to the FBI are filed under
`seal as Exhibits 1 and 13.
`On September 22, 2016, the United States issued a subpoena
`duces tecum for the records of the company that employed
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`Case 3:18-cr-04683-GPC Document 283-1 Filed 09/27/21 PageID.3231 Page 3 of 6
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`6.
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`Daniel Dye. On September 23, 2016, the United States issued
`subpoenas duces tecum to Company A and five other related
`companies. For ease of presentation at trial, the government
`intends to offer the records obtained via grand jury
`subpoenas as evidence in trial. Three of the Eleven Emails
`were also produced to the defense as part of the records
`produced pursuant to the Company A subpoenas previously
`referenced. A spreadsheet matching the Eleven Emails to the
`bates numbers of the discovery produced pursuant to the
`subpoenas is filed under seal as Exhibit 16.
`I am one of the Assistant U.S. Attorneys who presented the
`evidence to the grand jury in this case, and I am primarily
`responsible for drafting the indictment in this case. The
`first time I became aware of the Eleven Emails was in
`September of 2020, shortly before the communications between
`SS and the FBI were produced as discovery. When I noticed
`that the zip file contained emails involving an attorney, I
`stopped reading and asked for a taint review before the items
`were produced in discovery, to protect any potential attorney
`client privilege. It is impossible for the Eleven Emails to
`have informed my investigation of the case, or decisions
`regarding charges, as those decisions had been made at least
`two years before I became aware of the Eleven Emails. None
`of the Eleven Emails were presented to the grand jury, and
`none are intended for use in the government’s case in chief
`at trial.
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`Case 3:18-cr-04683-GPC Document 283-1 Filed 09/27/21 PageID.3232 Page 4 of 6
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`SS is not a percipient witness to any of the events charged
`in this case and will not be a witness for the government in
`its case in chief.
`At the time that SS began providing information to the FBI
`in this case in 2013, SS had not been given a CHS
`(Confidential Human Source) number by the FBI. By the time
`this case was indicted and production of discovery began in
`2018, SS had been given a CHS number by another FBI field
`office. In redacting the reports of contact between the FBI
`and SS for discovery in this case in 2018, the FBI provided
`copies of reports which identified SS by CHS number, rather
`than by name. This left the misleading impression that SS
`had been a CHS for the FBI when providing information in this
`investigation as early as 2013. The FBI prepared a report
`explaining that SS had not become a CHS for the FBI until
`October 12, 2018, and prior to that date had been voluntarily
`providing information without direction from any FBI agent.
`This report was attached as Exhibit B (ECF 28-4) to Ms.
`Munk’s declaration as evidence in support of the motion for
`discovery.
`The defense was provided with redacted copies of the original
`reports of communications with SS where SS was identified by
`name rather than CHS number to demonstrate that the only
`difference in the wording of the reports was the manner that
`the identity of SS was protected. Unfortunately, in a rush
`to provide these reports to the defense, the government
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`Case 3:18-cr-04683-GPC Document 283-1 Filed 09/27/21 PageID.3233 Page 5 of 6
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`inadvertently failed to fully redact all references to the
`name of SS, revealing a first name in one document and a last
`name in another. The inadvertent disclosure occurred in spite
`of the fact that word searching software was used to review
`the discovery and multiple members of the prosecution team
`reviewed the discovery prior to production. Nonetheless, the
`government’s interest in protecting the identity of SS
`remains strong, as SS continues to assist the FBI in other
`unrelated investigations in other areas of the United States.
`10. 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 identified the date that such information and/or
`documents were provided.
`11. 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. Additional emails continue to
`be produced in discovery as they are received. Without any
`request or encouragement from the government, SS has been
`following the case on PACER and emailing the FBI with
`comments about the defense filings. As these emails are
`received, they are provided as discovery.
`12. In response to the most recent filing by the defense
`requesting further discovery regarding SS and Spamhaus, SS
`sent another email to the FBI on September 21, 2021. A copy
`of this email, redacted to protect the identity of SS, is
`5
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`Case 3:18-cr-04683-GPC Document 283-1 Filed 09/27/21 PageID.3234 Page 6 of 6
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`filed under seal as Exhibit 14. In this email, SS stated,
`”Spamhaus never encouraged him [CY] to send any internal
`documents,” noting that “Spamhaus couldn't have prodded or
`encouraged anyone to turn over documents since we didn't know
`he had them in the first place.” SS went on to state, “The
`government did not know about the ‘intrusive conduct’ in the
`form of ‘purloined’ emails until they received them (YEARS
`after this case had already been built by search warrant
`information). Up until that point, any talk about [CY] or
`other informants was only about handing them off to FBI to
`deal with, NOT about sending over any emails from him.”
`13. SS had indicated to the FBI in 2014 that Spamhaus received
`information from an anonymous private party (Anon-1) who
`appeared to be employed within Adconion. This was the only
`other party besides CY that Spamhaus identified to the FBI
`as possibly having insider-type information relevant to this
`case. SS provided the email address of Anon-1 to the FBI.
`Although the FBI attempted to meet and speak to Anon-1, those
`attempts were not successful. The FBI never spoke with, met
`with, or received any documentation from anyone who
`identified as being Anon-1.
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`September 27, 2021
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`DATED:
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`MELANIE K. PIERSON
`Assistant U.S. Attorney
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