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`EXHIBIT A
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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@aol.com
`Jessica@Wmgattorneys.com
`William@Wmgattorneys.com
`
`Attorneys For Jacob Bychak
`
`BIENERT KATZMAN
`LITTRELL WILLIAMS LLP
`Thomas H. Bienert, Jr., SBN 135311
`James D. Riddet, SBN 39826
`Whitney Z. Bernstein, SBN 304917
`Carlos A. Nevarez, SBN 324407
`903 Calle Amanecer, Suite 350
`San Clemente, California 92673
`Telephone: (949) 369-3700
`Email: Tbienert@Bklwlaw.com
`Jriddet@Bklwlaw.com
`Wbernstein@Bklwlaw.com
`Cnevarez@Bklwlaw.com
`
`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
`
`Attorneys For Mark Manoogian
`
`BIRD MARELLA BOXER
`WOLPERT NESSIM DROOKS
`LINCENBERG RHOW P.C.
`Gary S. Lincenberg, SBN 123058
`Nicole Rodriguez Van Dyk, SBN
`261646
`Darren L. Patrick, SBN 310727
`Alexis A. Wiseley, SBN 330100
`1875 Century Park East, Floor 23
`Los Angeles, CA 90067
`Telephone: (310) 201-2100
`Email: Glincenberg@Birdmarella.com
`Nvandyk@Birdmarella.com
`Dpatrick@Birdmarella.com
` Awiseley@birdmarella.com
`
`Attorneys For Mohammed Abdul
`Qayyum
`
`Attorneys For Petr Pacas
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`DEFENDANTS’ REPLY IN SUPPORT OF MOTIONS TO COMPEL AND FOR
`RECONSIDERATION OF MOTION TO COMPEL
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF CALIFORNIA
`
`UNITED STATES OF AMERICA,
`Plaintiff,
`
`v.
`JACOB BYCHAK, et al.,
`Defendants
`
`Case No. 18-CR-4683-GPC
`Honorable Gonzalo P. Curiel
`DEFENDANTS' REPLY TO
`GOVERNMENT’S
`CONSOLIDATED OPPOSITION
`[Filed concurrently with Declaration of
`Randy K. Jones and Defendants’ Joint
`Motion for Leave to File Reply]
`
`Defendants Jacob Bychak, Mark Manoogian, Mohammed Abdul Qayyum,
`and Petr Pacas (jointly, Defendants”) hereby reply to the consolidated opposition to
`the Defendants’ Motions for Spamhaus’s History of Government Contacts &
`Reconsideration regarding the Confidential Informant [Dkt. No. 283] (the
`“Opposition”) filed by the government on September 27, 2021.
`I.
`INTRODUCTION
`From the outset, the government’s investigation has been guided by the
`Spamhaus Informant (“SI”). In his own words, the SI has spent “literally thousands
`of hours” investigating Company A and the Defendants, and “[e]verything
`[Spamhaus] dug up was of course sent along to FBI.” See Under Seal Ex. 14 at
`ADCONION-DISC45-00005 to Opposition.1 As a result, Defendants’ Motion to
`Compel Discovery Regarding Spamhaus’s Cooperation with Governmental
`Investigations contemplated a Fourth Amendment challenge based on the SI’s illegal
`seizure of Company A’s documents. Dkt. No. 281.
`Since then, the SI has found new ways to remain involved in the investigation,
`and new ways to violate Defendants’ constitutional rights that justify the relief sought
`
`1 All under seal exhibits referenced herein were filed in support of the Opposition.
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`in Defendants’ motion. Like a mosquito drawn to an ultraviolet light, the SI is
`surveilling defense counsels’ internet activity, sharing their private data and internet-
`based research with the government, and invading the work product privilege by
`providing a window into the defense’s mental impressions and strategy. Thus, while
`the government is fighting tooth-and-nail to keep the SI’s identity out of the case, it
`is simultaneously receiving a steady stream of information from the SI.
`Intentional invasion of the defense camp seriously undermines Defendants’
`constitutional right to due process under the Fifth Amendment and right to counsel
`under the Sixth Amendment. It also underscores Defendants’ need to investigate
`whether the SI engaged in a pattern or practice of illegal behavior in the course of
`cooperating with government’s investigations, and the extent to which the
`government has known about or acquiesced to this outrageous conduct.2 In addition
`to the bases set forth in the motion, such discovery is necessary for Defendants to
`ascertain and seek remedy for the SI’s invasion of the defense camp. See In re Grand
`Jury Subpoenas, 454 F.3d 511, 517 (6th Cir. 2006) (“leaking of privileged materials
`to investigators would raise the spectre of Kastigar-like evidentiary hearings.”)
`(Referencing United States v. Kastigar, 406 U.S. 441 (1972)).
`III. ARGUMENT
`The SI’s outrageous, unethical, and potentially illegal conduct—and the
`government’s unwillingness to immediately halt it—is alarming. Defendants’ motion
`detailed the SI’s apparent theft of Company A documents and efforts to pass along
`attorney-client communications contained in them to the government. Since the filing
`of the government’s opposition, the SI has crossed legal and ethical boundaries by
`surveilling and sharing with the government defense counsel’s private internet-based
`research. It is more essential than ever that Defendants have an opportunity to
`
`2 Defendants seek the SI’s and Spamhaus’ contact with the government on other
`criminal investigations to determine if this conduct is standard operating procedure.
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`investigate his conduct. The SI has intentionally intruded upon defense counsel’s trial
`preparations in violation of Defendants’ constitutional rights, but also appears to have
`transgressed internet privacy laws. This raises further concerns about the use of
`illegally obtained evidence in this case.
`A.
`Applicable Law
`The work-product doctrine applies to criminal litigation. United States v.
`Nobles, 422 U.S. 225, 236 (1975). “At its core, the work-product doctrine shelters
`the mental processes of the attorney, providing a privileged area within which he can
`analyze and prepare his client’s case.” Id. at 238. A defense attorney’s investigation
`into his client’s alleged conduct constitutes work product. See United States v. Horn,
`811 F. Supp. 739, 746 (D.N.H. 1992); see also United States v. June, 10-30021, 2011
`WL 5330788, at *2 (D. Mass Oct. 19, 2011). The government is forbidden from
`eavesdropping or planting agents to hear or disrupt councils of the defense. See, e.g.,
`United States v. Henry, 447 U.S. 264 (1980) (government violated the Sixth
`Amendment for using informant to obtain incriminating statements); Black v. United
`States, 385 U.S. 26 (1966) (vacating conviction and ordering new trial where FBI
`monitored petitioner and his attorney’s conversations in an unrelated matter and later
`shared that information with the prosecution team); see also In re Terkeltoub, 256 F.
`Supp. 683, 685 (S.D.N.Y. 1966) (“The defendant has the right to prepare in secret …
`The prosecution’s secret intrusion offends both the Fifth and Sixth Amendment.”)
`(citations omitted).
`
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`B.
`
`Evidence of the SI’s Willingness to Flaunt Legal and Ethical
`Boundaries is Probative of His Routine Information Gathering
`Practices Which the Defendants Must Be Able to Explore
`The government conveniently fails to inform the Court of the SI’s recent
`activities until the last lines of its brief in the apparent hope the Court will overlook
`his recent conduct. But the Court should not ignore that the SI is growing bolder as
`this case progresses, taking steps that threaten the integrity of the case, and
`demonstrating a pattern and practice of flaunting the legal and ethical lines designed
`to protect the Defendants’ constitutional rights.
`First, as discussed in the Defendants’ Motion to Compel Discovery Regarding
`Spamhaus’s Cooperation with Governmental Investigations (Dkt. No. 281-1), the SI
`knowingly accepted and passed stolen documents from Company A to the
`government, raising Fourth Amendment concerns. When the Court ordered the SI to
`identify the stolen documents, he revealed that he had actually summarized the
`illegally obtained emails in order to circumvent any attorney-client privilege claims
`down the road. See Dkt. No. 281-5. Whether the government first obtained these
`emails from another source, intends to use these specific documents in its case-in-
`chief, or even whether the prosecutors personally reviewed them is beside the point.
`The SI’s willingness to use ill-gotten communications is material to the issue of
`whether the government’s case is legally and ethically compromised. Indeed, what
`privileged information has been “sanitized” and passed to the government or its
`agents by the SI, and how that information may have been used to develop this case,
`is critical to evaluating whether and to what extent the government’s case is tainted
`by the SI’s intrusion into the attorney-client privilege and attorney work product.
`Defendants must be allowed to not only investigate this further, but also prepare their
`defense without derivative government intrusion. Moreover, the government’s
`acquiescence to such investigatory practices is material to Defendants’ position that
`the SI is a state actor, and the full relationship between the SI, Spamhaus, and the
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`government is relevant not only to the Court’s resolution of that motion, but also for
`Defendants to mount an effective defense and bring all necessary pretrial motions.
`Furthermore, the SI’s outrageous, unethical, and potentially illegal actions are
`not a singular lapse of judgment. To the contrary, documents in government
`productions 45 and 46—both of which were produced in the last several days—reveal
`that the SI has been monitoring defense counsels’ internet activity and abusing his
`access to defense counsels’ private data collected by Spamhaus. The SI has passed
`this information to the government, raising further concerns about Defendants’ Fifth
`and Sixth Amendment rights. Specifically, the documents show that the SI used
`Spamhaus data to determine that one defense counsel’s law firm uses an email
`filtering system that subscribes to Spamhaus data, which, according to the SI, makes
`the attorney a “lying lawyer.” See Under Seal Ex. 14 at ADCONION-DISC45-00001.
`These emails further suggest the SI is trying to intimidate the defense team. More
`shocking, on September 26, 2021, the SI emailed the government to share
`information about searches that multiple defense lawyers conducted on the Spamhaus
`website, including the dates and times defense counsel searched the website, their
`search terms, IP addresses, and the physical locations from which defense counsel
`conducted the searches—in other words, the metadata pertaining to Defense
`counsels’ pretrial research. See Declaration of Randy Jones at ¶ 2.
`This conduct is highly unethical and inappropriate, and is an intrusion into
`defense counsels’ work product revealing their research and preparations for trial.
`See Nobles, 422 U.S. at 238 (1975) (the work product doctrine “assur[es] the proper
`functioning of the criminal justice system”); United States v. Wirth, No. CRIM. 11-
`256 ADM/JJK, 2012 WL 1110540, at *4 (D. Minn. Apr. 3, 2012) (document
`metadata, “almost by definition, shows the [attorneys’] mental processes … by
`revealing the [attorneys’] … decisions and steps” and, therefore, constitutes
`“‘opinion work product’ entitled to stronger protection than other types of work
`
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`product”); United States v. Segal, No. 02-CR-112, 2004 WL 830428, at *8 (N.D. Ill.
`Apr. 16, 2004) (“[S]earch terms … provide a window into the attorney’s thinking”
`and “indicate that [the attorney] was researching the claims at the heart of the present
`litigation”). The SI shared the defense camp’s work product and other information
`the government could not obtain short of a subpoena. But an attorney’s preparations
`for litigation are not discoverable and cannot be used to inculpate a defendant at trial.
`See Mattenson v. Baxter Healthcare Corp., 438 F.3d 763 (7th Cir. 2006) (explaining
`that “[t]he work-product doctrine shields materials … on the theory that the opponent
`should not be allowed to … invite the jury to treat candid internal assessments of a
`party's legal vulnerabilities as admissions of guilt”).3
`If the SI is performing these searches at the government’s behest, he is clearly
`a government agent. But even if they have not asked the SI to do this, the FBI agents
`and federal prosecutors have not told him to stop. This is cause for grave concern.
`See United States v. Reed, 15 F.3d 928, 931 (9th Cir. 1994). Criminal defendants
`possess robust constitutional rights to a fair trial, including the right to prepare for
`trial in secret. In re Terkeltoub, 256 F. Supp. 683, 685 (S.D.N.Y. 1966). Mere
`possession by the prosecution of otherwise confidential knowledge about the defense
`strategy is sufficient in itself to establish detriment to the criminal defendant. See
`United States v. Danielson, 325 F.3d 1054, 1068 (9th Cir. 2003), as amended (May
`19, 2003) (“[O]nce the [prosecution] learned [informant] had obtained trial strategy
`information (and therefore knew that he might learn more such information in future
`conversations), the prosecution team was on notice of a potential Sixth Amendment
`violation if [informant], now acting on behalf of the government, continued to
`[provide information].”) (emphasis added); Briggs v. Goodwin, 698 F.2d 486, 494-
`
`3 As if providing information on the defense counsels’ preparation was not enough,
`the SI also provided the government access to the Spamhaus database to perform its
`own searches as to the Defendants’ case preparation. See Dkt. No. 257-4.
`6
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`95 (D.C. Cir.) (quoting Weatherford v. Bursey, 429 U.S. 545, 556 (1977), reh’g
`granted and opinion vacated on other grounds, 712 F.2d 1444 (D.C. Cir. 1983).
`Here, the government has failed to take any “measures to safeguard the system
`against treachery.” See United States v. Bernal-Obeso, 989 F.2d 331, 333-34 (9th
`Cir. 1993). Whether it is determined that the SI is a state actor or not, the government
`still has a duty not to accept, allow, or overlook third-party behavior that jeopardizes
`a defendant’s Fifth and Sixth Amendment constitutional rights. See United States v.
`Levy, 577 F.2d 200, 209 (3d Cir. 1978) (“Free two-way communication between
`client and attorney is essential if the professional assistance guaranteed by the sixth
`amendment is to be meaningful. The purpose . . . is inextricably linked to the very
`integrity and accuracy of the fact finding process itself. Even guilty individuals are
`entitled to be advised of strategies for their defense . . . [A]ny advice received as a
`result of a defendant’s disclosure to counsel must be insulated from the
`government.”); see also ABA Criminal Justice Standards for Prosecutorial
`Investigations, Standard 2.5(j) “The prosecutor should guard against the cooperator
`obtaining information from others that invades the attorney-client or work product
`privileges or violates the Sixth Amendment right to counsel.”4
`The SI’s egregious conduct, paired with the government’s acquiescence and
`complacency, has materially harmed Defendants’ ability to mount an effective
`defense. Dismissal with prejudice or disqualification of the prosecutorial team may
`be appropriate remedies. See United States v. Levy, 577 F.2d 200, 208 (3rd Cir. 1978)
`(holding dismissal of indictment an appropriate remedy when defendant’s Sixth
`
`4 The ABA Model Rules of Professional Conduct rules also apply. Rule 4.4(a): … “a
`lawyer shall not use . . . methods of obtaining evidence that violate the legal rights
`of such a person” (emphasis added). Comment 1 thereto explains this includes “legal
`restrictions on methods of obtaining evidence . . . and unwarranted intrusions into
`privileged relationships, such as the client- lawyer relationship” (emphasis added);
`and see Rule 8.4(a) (It is professional misconduct for a prosecutor to violate an ethics
`rule through the acts of another, such as an informant).
`7
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`Amendment violated by codefendant, who was actually a government informant,
`disclosing defense strategy to the government). For now, Defendants must be
`permitted to learn the SI’s identity and an evidentiary hearing with appropriate
`discovery must occur to determine the extent of the SI’s conduct and its impact on
`Defendants’ constitutional rights and trial.
`Second, the SI’s conduct runs amok of numerous privacy laws, obligations as
`an information fiduciary, and Spamhaus’ own privacy policies. By collecting and
`sharing defense counsels’ private data without their knowledge or consent, the SI has
`shown an outrageous disregard for privacy laws. The SI undoubtedly knows from his
`line of work that names and online identifiers of the attorneys for the defendants
`constitute “personal information” subject to stringent safeguards under both
`California and international law. See, e.g., Cal. Civ. Code § 1798.140 (v)(1)(A)
`(defining “personal information” to include “[i]dentifiers such as a real name, …
`unique personal identifier, online identifier, Internet Protocol address, [or] email
`address”); European General Data Protection Regulation (“GDPR”), Art. 4 (1)
`(defining “personal data” to include “any information relating to an identified or
`identifiable natural person,” including by means of an “online identifier”). Under
`these strict laws, entities collecting personal information are obligated, at a minimum,
`to advise users of the categories of personal information they collect, and the
`purposes for which that information is used.5 That did not occur here.
`According to Spamhaus’ data privacy policy, it collects personal information
`for five purposes. The only remotely applicable purpose is: “5) To gather and provide
`
`5 See, e.g., Cal. Civ. Code § 1798.100 (“A business shall not collect additional
`categories of personal information or use personal information collected for
`additional purposes that are incompatible with the disclosed purpose for which the
`personal information was collected without providing the consumer with notice
`consistent with this section.”); see also GDPR Art. 5-6 (setting forth restrictions on
`the “collection” and “processing” of personal data); id. at Art. 49 (setting forth
`restrictions on “transfers” of personal data).
`8
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`information required by or relating to audits, enquiries or investigations by regulatory
`bodies or law enforcement authorities, and to assist service providers through actor
`attribution within the Register of Known Spam Operations database (“ROKSO”).”6
`The government cannot legitimately contend that the sharing of defense counsels’
`personal data – including their names, online identifiers of their office computers,
`and the search terms they entered on the Spamhaus website – comports with any
`legitimate purpose; nor were defense counsel advised that their personal information
`would be used in this manner. This demonstrates that the SI is not only willing to
`break ethical rules, but is also willing to break privacy laws, and his own
`organizations policies on the legitimate use of the data it collects. This is a disturbing,
`win-at-all costs, mentality that infects the government’s case and curtails
`Defendants’ constitutional rights. The parties must determine the degree to which the
`case has been tainted.
`As previously mentioned, the SI has guided the government’s investigation
`from the beginning. Defendants have now presented the Court with multiple
`instances of the lengths the SI is willing to go to gain an unfair advantage, and the
`government, if not encouraging this behavior, is certainly not stopping him. If the SI
`has engaged in similar conduct in his past or yet to be disclosed in this matter, it is
`undoubtedly material under Rule 16 and exculpatory and impeaching under Brady
`
`6 The other four are: 1) To register a new customer; 2) To manage Spamhaus’
`relationship with the customer; 3) To administer and protect Spamhaus’ business and
`website through troubleshooting, data analysis, testing, system maintenance, support,
`or other functions; and 4) To use data analytics to improve the website,
`products/services, marketing,
`customer
`relationships
`and
`experiences.
`https://www.spamhaus.org/organization/privacy/#4.
`
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`and Giglio.7 Defendants must be permitted to use the SI’s identity, conduct, and
`extent of his involvement with the government on this case to present their defense,
`and to seek remedies for any constitutional violations engendered by the information
`he has gathered and provided to the government.
`IV. CONCLUSION
`The SI’s egregious conduct and the government’s acquiescence and
`complacency has materially harmed Defendants’ ability to mount an effective
`defense. Defendants must be permitted to use the SI’s identity and provided an
`evidentiary hearing with appropriate discovery to determine the extent of the SI’s
`conduct and its impact on Defendants’ constitutional rights and trial preparation.
`
`Respectfully Submitted,
`/s/ Randy K. Jones
`Randy K. Jones
`
`7 The government fails to appreciate the low threshold required in the Ninth Circuit
`to demonstrate materiality under Rule 16. Information is material if it is relevant to
`a possible defense, United States v. Stever, 603 F.3d 747, 752 (9th Cir. 2010), and
`includes both inculpatory and exculpatory information, United States v. Muniz-
`Jaquez, 718 F.3d 1180, 1183 (9th Cir. 2013) (“Information that is not exculpatory or
`impeaching may still be relevant to developing a possible defense.”). Even
`information that merely “causes a defendant to completely abandon a planned
`defense and take an entirely different path” must be disclosed under Rule 16’s broad
`discovery right. United States v. Hernandez-Meza, 720 F.3d 760, 768 (9th Cir. 2013)
`(internal quotation marks omitted). As the Ninth Circuit explained, “[t]he test is not
`whether the discovery is admissible at trial, but whether the discovery may assist [the
`defendant] in formulating a defense.” United States v. Soto-Zuniga, 837 F.3d 992,
`1003 (9th Cir. 2016).
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`DATED: October 1, 2021
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`DATED: October 1, 2021
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`DATED: October 1, 2021
`
`DATED: October 1, 2021
`
`MINTZ LEVIN COHN FERRIS
`GLOVSKY AND POPEO, P.C.
`By: Randy K. Jones
`Randy K. Jones
`Daniel J. Goodrich (Pro Hac)
`Ryan Dougherty (Pro Hac)
`Attorneys for Mark Manoogian
`
`WIECHERT, MUNK &
`GOLDSTEIN, PC
`By: William J. Migler
`David W. Wiechert
`Jessica C. Munk
`William J. Migler
`Attorneys for Jacob Bychak
`
`BIENERT KATZMAN
`LITTRELL WILLIAMS LLP
`By: Whitney Z. Bernstein
`Thomas H. Bienert, Jr.
`James D. Riddet
`Whitney Z. Bernstein
`Carlos A. Nevarez
`Attorneys for Mohammed Abdul Qayyum
`
`BIRD, MARELLA, BOXER,
`WOLPERT, NESSIM, DROOKS,
`LINCENBERT & RHOW, P.C.
`By: Nicole Rodriquez Van Dyk
`Gary S. Lincenberg
`Nicole Rodriguez Van Dyk
`Darren L. Patrick
`Attorneys for Petr Pacas
`
`11
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`Case 3:18-cr-04683-GPC Document 288-1 Filed 10/01/21 PageID.3455 Page 14 of 15
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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 content of this document is acceptable to counsel for
`the Defendants and that I have obtained authorization from Jessica C. Munk, Whitney
`Z. Bernstein, and Nicole Rodriguez Van Dyk.
`
`Dated: October 1, 2021
`
`By: /s/ Randy K. Jones
`Randy K. Jones
`
`12
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`RECONSIDERATION OF MOTION TO COMPEL
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`Case 3:18-cr-04683-GPC Document 288-1 Filed 10/01/21 PageID.3456 Page 15 of 15
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`CERTIFICATE OF SERVICE
`Counsel for Defendant certifies that the foregoing pleading has been
`electronically served on the following parties by virtue of their registration with the
`CM/ECF system:
`
`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 certify under penalty of perjury under the laws of the United States of
`America that the foregoing is true and correct.
`Executed on October 1, 2021, at San Diego, California.
`
`/s/ Randy K. Jones
`Randy K. Jones
`
`117063042v.9
`
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