Case 3:18-cr-04683-GPC Document 285 Filed 10/01/21 PageID.3237 Page 1 of 7
`
`
`KENNETH A. POLITE, JR.
`Assistant Attorney General
`DOJ Criminal Division
`CANDINA S. HEATH
`Senior Counsel
`TX Bar No: 09347450
`1301 New York Ave. NW
`Washington, DC 20530
`Tel: (202) 307-1049
`Email:Candina.Heath2@usdoj.gov
`
`RANDY S. GROSSMAN
`Acting United States Attorney
`MELANIE K. PIERSON
`SABRINA L. FEVE
`Assistant U.S. Attorneys
`CA Bar Nos.: 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
`Email:Sabrina.Feve@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
`
` STIPULATION REGARDING THE
`
`Plaintiff,
`(1) ADMISSIBILITY OF DEPOSITIONS,
`
`(2) AUTHENTICITY OF EXHIBITS, AND
`v.
`
`(3) CONTINUANCE OF TRIAL DATE AND
`
`RELATED DEADLINES
`JACOB BYCHAK (1),
`MARK MANOOGIAN (2),
`
`MOHAMMED ABDUL QAYYUM (3),
`PETR PACAS (4),
`
`
`Defendants.
`
`
`Plaintiff United States of America, by and through its counsel of
`record, and Defendants, both individually and by and through their
`respective counsel of record, hereby agree as follows:
`1. The government and the defense, with the express consent of
`each defendant, (together the “Parties”) stipulate that the deponents
`LWT and SAD, witnesses for the government, are unable to appear and
`testify at the trial in this case due to medical infirmity, and that
`the digital recordings and the certified transcripts of the depositions,
`subject to the court’s rulings on the objections propounded during the
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`Case 3:18-cr-04683-GPC Document 285 Filed 10/01/21 PageID.3238 Page 2 of 7
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`depositions, are true and authentic depictions of the testimony of the
`deponents.
`2. The Parties agree that the depositions were conducted in
`accordance with the Court’s orders and direction (Docket 254 and 275)
`and in compliance with the Federal Rule of Criminal Procedure 15. The
`Parties stipulate that during the depositions, each defendant was
`adequately represented by counsel. By their signatures below, each
`defendant represents that they understood their rights to be present at
`the depositions, and voluntarily waived those rights.
`3. The defense is willing to enter into stipulations regarding
`the authenticity of records from any reliable source pursuant to the
`Federal Rules of Evidence (FRE), including FRE 902(11) and (13), subject
`to the government first showing any particular exhibit to defense
`counsel so that defense counsel can review the particular exhibits prior
`to finalizing a stipulation to the particular document. Reliable
`sources may include but are not limited to ARIN, AT&T, Cogent, Company
`A, Earth Class Mail, Frontline Direct, GetAds, GoDaddy, Hostwinds,
`PayPal, Telic, and Yahoo. The admissibility of such exhibits is subject
`nonetheless to the Court’s rulings on any objections not related to
`authenticity.
`4. Defendants were indicted in this case on October 31, 2018, and
`are out of custody on bond. On January 21, 2021, the Court set the
`first trial date in this case for November 30, 2021, and a motions in
`limine date for November 18, 2021.
`
`
`Stipulation Regarding the (1) Admissibility of Depositions, (2) Admissibility of
`
`Authenticity of Exhibits, and (3) Continuance of Trial Date and Related Deadlines
`
`18cr4683-GPC
`pg. 2
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`Case 3:18-cr-04683-GPC Document 285 Filed 10/01/21 PageID.3239 Page 3 of 7
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`5. The government estimates that its case-in-chief in this matter
`will last approximately 10-15 court days. The defense estimates that
`its case will last approximately 5 court days.
`6. By this stipulation, the Parties agree to move to continue the
`trial date to May 24, 2022, and the motions in limine date to Spring
`2022. This is the first joint request for a trial continuance.
`7. Defendants request the continuance based upon the following
`facts, which the Parties believe demonstrate good cause to support the
`appropriate findings under the Speedy Trial Act:
` a. Defendants are charged with a violation of 18 U.S.C. § 371:
`Conspiracy to violate the Wire Fraud statute and the CAN-SPAM Act;
`18 U.S.C. §1343: Wire Fraud; and 18 U.S.C. §1037(a)(5): Electronic Mail
`Fraud.
` b. The Court has found this case to be complex and there are
`legal issues of first impression.
` c. To date, the government has produced almost 2,000,000 pages
`of discovery, and the government continues to produce discovery pursuant
`to its continuing duty to disclose (Federal Rule of Criminal Procedure
`16(c)).
` d. Accordingly, additional time is necessary for counsel to
`confer with Defendants, conduct and complete an independent
`investigation of the case, conduct and complete additional legal
`research including for potential pretrial motions, review discovery and
`potential evidence in this case, pursue pretrial negotiations with the
`government, and prepare for trial in the event a pretrial resolution
`
`Stipulation Regarding the (1) Admissibility of Depositions, (2) Admissibility of
`
`Authenticity of Exhibits, and (3) Continuance of Trial Date and Related Deadlines
`
`18cr4683-GPC
`pg. 3
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`Case 3:18-cr-04683-GPC Document 285 Filed 10/01/21 PageID.3240 Page 4 of 7
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`does not occur. Defense counsel represent that failure to grant the
`continuance would deny them reasonable time necessary for effective
`representation, taking into account the exercise of due diligence.
`8. The requested continuance is not based on congestion of the
`Court’s calendar, lack of diligent preparation on the part of the
`attorneys for the government or the defense, or failure on the part of
`the attorneys for the government to obtain available witnesses.
`9. For purposes of computing the date under the Speedy Trial Act
`by which Defendants’ trial must commence, the parties agree that the
`time period from November 30, 2021 through May 24, 2022, inclusive,
`should be excluded under pursuant to 18 U.S.C. §§ 3161(h)(7)(A),
`(h)(7)(B)(i), (h)(7)(B)(ii), and (h)(7)(B)(iv) because the delay
`results from a continuance granted by the Court at each Defendant’s
`request, without government objection, on the basis of the Court’s
`finding that: (i) the ends of justice served by the continuance outweigh
`the best interest of the public and defendant in a speedy trial; (ii)
`failure to grant the continuance would be likely to make a continuation
`of the proceeding impossible, or result in a miscarriage of justice;
`(iii) this case is so complex given the nature of the prosecution and
`existence of novel questions of fact and law that it is unreasonable to
`expect adequate preparation for trial; and (iv) failure to grant the
`continuance would unreasonably deny defense counsel the reasonable time
`necessary for effective preparation, taking into account the exercise
`of due diligence.
`
`
`Stipulation Regarding the (1) Admissibility of Depositions, (2) Admissibility of
`
`Authenticity of Exhibits, and (3) Continuance of Trial Date and Related Deadlines
`
`18cr4683-GPC
`pg. 4
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`Case 3:18-cr-04683-GPC Document 285 Filed 10/01/21 PageID.3241 Page 5 of 7
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`10. Nothing in this stipulation shall preclude a finding that
`other provisions of the Speedy Trial Act dictate that additional time
`periods be excluded from the period within which trial must commence.
`Moreover, the same provisions and/or other provisions of the Speedy
`Trial Act may in the future authorize the exclusion of additional time
`periods from the period within which trial must commence.
`IT IS October 1, 2021.
`Respectfully submitted,
`
`RANDY S. GROSSMAN
`Acting United States Attorney
`
`/s/Melanie K. Pierson
`Assistant United States Attorney
`/s/Sabrina L. Feve
`Assistant United States Attorney
`
`KENNETH A. POLITE, JR.
`Assistant Attorney General
`
`/s/Candina S. Heath
`Senior Counsel
`Computer Crime and Intellectual Property Section
`Department of Justice, Criminal Division
`
`
`
`
`
`
`
`AGREED:
`
`
`
`
`
`
`
`
`/s/Jacob Bychak
`Defendant
`/s/Jessica C. Munk
`David W. Wiechert
`Jessica C. Munk
`William J. Migler
`Wiechert, Munk, & Goldstein, PC
`Attorneys for Defendant Jacob Bychak
`
`
`/s/Mark Manoogian
`Defendant
`
`
`Stipulation Regarding the (1) Admissibility of Depositions, (2) Admissibility of
`
`Authenticity of Exhibits, and (3) Continuance of Trial Date and Related Deadlines
`
`18cr4683-GPC
`pg. 5
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`Case 3:18-cr-04683-GPC Document 285 Filed 10/01/21 PageID.3242 Page 6 of 7
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`
`/s/Randy K. Jones
`Randy K. Jones
`Mintz, Levin, Cohn, Ferris, Glovsky, & Popeo, PC
`Attorney for Defendant Mark Manoogian
`
`
`/s/Mohammed Abdul Qayyum
`Defendant
`
`/s/Whitney Z. Bernstein
`Thomas H. Bienert, Jr.
`James D. Riddet
`Whitney Z. Bernstein
`Carlos A. Nevarez
`Bienert, Katzman, Littrell, & Williams, LLP
`Attorneys for Defendant Mohammed Abdul Qayyum
`
`
`/s/Petr Pacas
`Defendant
`/s/Nicole Rodriguez Van Dyk
`Gary S. Lincenberg
`Nicole Rodriguez Van Dyk
`Darren L. Patrick
`Bird, Marella, Boxer, Wolpert, Nessim, Drooks,
`Lincenberg, & Rhow, PC
`Attorneys for Defendant Petr Pacas
`
`
`
`
`
`
`
`
`
`
`Stipulation Regarding the (1) Admissibility of Depositions, (2) Admissibility of
`
`Authenticity of Exhibits, and (3) Continuance of Trial Date and Related Deadlines
`
`18cr4683-GPC
`pg. 6
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`Case 3:18-cr-04683-GPC Document 285 Filed 10/01/21 PageID.3243 Page 7 of 7
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`CERTIFICATE OF AUTHORIZATION TO SIGN ELECTRONIC SIGNATURE
`
`Pursuant to section 2(f)(4) of the Electronic Case Filing
`
`Administrative Policies and Procedures of the United States District
`Court for the Southern District of California, I certify that the
`contents of the document are acceptable to counsel for the government
`and for the defendants, and that I have obtained authorization to
`sign electronically for Melanie K. Pierson, Sabrina L. Feve, Jessica
`C. Munk, Randy K. Jones, Whitney Z. Bernstein, and Nicole Rodriguez
`Van Dyk. Additionally, Jessica C. Munk, Randy K. Jones, Whitney Z.
`Bernstein, and Nicole Rodriguez Van Dyk advised me that the contents
`of the document are acceptable to their clients, and granted me
`authorization to sign electronically for their respective clients.
`
`Dated: October 1, 2021.
`
`/s/Candina S. Heath
`Senior Counsel
`Computer Crime and Intellectual Property Section
`Department of Justice, Criminal Division
`
`CERTIFICATE OF SERVICE
`
`On this date, I hereby certify that this document was served on
`
`all counsel of record by electronically filing this document with of
`the Clerk of the District Court using its ECF System, which
`electronically notifies them of the filing.
`
`Dated: October 1, 2021.
`
`/s/Candina S. Heath
`Senior Counsel
`Computer Crime and Intellectual Property Section
`Department of Justice, Criminal Division
`
`
`
`
`
`
`
`
`Stipulation Regarding the (1) Admissibility of Depositions, (2) Admissibility of
`
`Authenticity of Exhibits, and (3) Continuance of Trial Date and Related Deadlines
`
`18cr4683-GPC
`pg. 7
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