Case 3:18-cr-04683-GPC Document 316 Filed 12/10/21 PageID.4092 Page 1 of 7
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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
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`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
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`Attorneys for Plaintiff
`United States of America
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF CALIFORNIA
`UNITED STATES OF AMERICA,
`Case No. 18cr4683-GPC
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`UNITED STATES’ RESPONSE IN
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`Plaintiff,
`OPPOSITION TO DEFENDANTS’
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`PROPOSAL REGARDING THE
`v.
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`SCOPE OF THE IN CAMERA
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`HEARING
`JACOB BYCHAK et. al.,
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`Defendants.
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`Case 3:18-cr-04683-GPC Document 316 Filed 12/10/21 PageID.4093 Page 2 of 7
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`I.
`INTRODUCTION
`The three-hour adversarial evidentiary hearing with the case agent sought by
`defendants is inappropriate and unwarranted. Defendants seeking disclosure of a
`confidential informant’s identity bear the burden of “demonstrat[ing] the need for the
`disclosure.” United States v. Fixen, 780 F.2d 1434, 1439 (9th Cir. 1986). When a defendant
`meets this burden, which these defendants have not, an in-chambers (in camera) hearing
`“provides an equally-acceptable accommodation of the competing interests of the
`Government and the accused” by enabling “disclosure of the informer’s identity to the trial
`judge, and such subsequent inquiries by the judge as may be necessary…” Id. (emphasis
`added) (citation omitted). It “is within the judge’s discretion” whether to hold an in camera
`hearing and “a district court need not conduct an in camera hearing whenever the identity
`of an informant is requested.” Id. at 1440.
`For the past fifty years, the Ninth Circuit has endorsed the use of in camera hearings
`as the “means by which to satisfy the balancing of interests required by” Roviaro v. United
`States, 353 U.S. 53 (1957). United States v. Rawlinson, 487 F.2d 5, 7 (9th Cir. 1973). At
`no point has the Ninth Circuit held, let alone suggested, that the proper way to balance the
`competing interests in protecting a source’s identity was to permit the defense to effectively
`conduct a deposition of the case agent on the substantive issues of their future motions.
`Rather, the “purpose” of an in camera hearing is “to determine if [the defendant] is entitled
`to an open evidentiary hearing on his [] claim” through “disclosure of the informer's
`identity to the trial judge” and the trial judge’s questioning of the informant. United States
`v. Kiser, 716 F.2d 1268, 1273 (9th Cir. 1983) (“We emphasize that the in camera inquiry
`is not a substitute for an evidentiary hearing. Its purpose is merely to determine if [the
`defendant] has made a ‘threshold substantial showing’…”) (citation omitted).
`To the extent that the Court is inclined to hold an in camera hearing, the established
`practice is for the Court to interview the source to assess whether disclosure would be
`relevant and helpful to a clearly-articulated defense. Defendants are not, however, entitled
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`Government’s Response to Defendants’ Proposal
`Regarding the Scope of the In Camera Hearing
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`Case 3:18-cr-04683-GPC Document 316 Filed 12/10/21 PageID.4094 Page 3 of 7
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`to a contested evidentiary hearing until they have both presented a substantive motion and
`identified the specific facts at issue. Here, there is no substantive motion pending and thus
`no disputed facts. An evidentiary hearing is therefore premature.
`II.
`ARGUMENT
`A. Defendants have not met their burden.
`Prior to holding any hearing, 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.” 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. Rather,
`defendants seeking discovery must produce “specific facts” to demonstrate materiality.
`United States v. Santiago, 46 F.3d 885, 895 (9th Cir. 1995). Evaluating courts then consider
`these facts against three factors: “(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 nondisclosure.”
`United States v. Gonzalo Beltran, 915 F.2d 487, 488–89 (9th Cir. 1990). Here, the
`undisputed facts show that the Spamhaus Source (SS): (1) did not participate in the criminal
`activity; (2) has no relationship to the defendants’ (as yet unidentified) defenses at trial;
`and (3) is reasonably fearful of having their identity disclosed.
`Instead, defendants argue that the following uncontested facts support an
`unidentified and as-yet-unfiled Fifth or Sixth Amendment motion: (1) SS forwarded CY’s
`emails to the FBI in 2017 with a comment that some of the emails might be privileged; (2)
`SS sent the FBI unsolicited information in September 2021 about defense counsels’ queries
`of Spamhaus’s own website; and (3) SS repeatedly communicated with the case agent and
`they appeared together at a May 2016 cybersecurity conference. [ECF No. 315, 1-2.]
`Defendants’ failure to identify either what motion these facts support or how they suffered
`colorable prejudice as a result, coupled with their abandonment of the Fourth Amendment
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`Government’s Response to Defendants’ Proposal
`Regarding the Scope of the In Camera Hearing
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`Case 3:18-cr-04683-GPC Document 316 Filed 12/10/21 PageID.4095 Page 4 of 7
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`argument that precipitated their initial discovery motions regarding SS’s identity,
`demonstrate that their current motion is nothing more than a fishing expedition. Their focus
`on compelling disclosure of SS’s identity in the hopes it might yield something useful,
`“rather than [] the import of any testimony [SS] might provide,” shows that they have not
`met their burden and their motion should be denied. United States v. Martinez, 5 F.3d 542,
`at 5 (9th Cir. 1993) (citing Fixen, 780 F.2d at 1440); see also United States v. Napier, 436
`F.3d 1133, 1136 (9th Cir. 2006) (defendants do not have “an unlimited right to access all
`information possibly needed to meet the preliminary showing requirement.”).
`B. If and when defendants meet their burden, the Court should question SS in camera.
`Defendants’ proposed questions show they are requesting an adversarial evidentiary
`hearing, rather than an in camera proceeding. No Ninth Circuit precedent authorizes such
`a hearing.1 When a defendant provides specific facts for why a source’s identity and
`testimony are relevant and material, the trial court holds an in camera hearing. United
`States v. Spires, 3 F.3d 1234, 1239 (9th Cir. 1993). An in camera hearing normally involves
`“disclosure of the informer’s identity to the trial judge, and such subsequent inquiries by
`the judge as may be necessary,” together with sealing of the resulting record. Fixen, 780
`F.2d at 1439; Martinez, 5 F.3d at 6; United States v Moore, 522 F.2d 1068, 1072-73 (9th
`Cir. 1975). The Ninth Circuit has repeatedly held that “in camera inquiries were not
`intended as, nor were they, substitutes for [] evidentiary hearing[s].” Moore, 522 F.2d at
`1073; Kiser, 716 F.2d at 1273.
`Napier underscores the difference between these two types of hearings. In Napier,
`Napier filed a motion to unseal a sealed portion of a search warrant affidavit pursuant to a
`broader Franks challenge. In the affidavit’s sealed portion, the detective described two
`undercover buys involving an informant. Significantly, the government did not charge
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`1 Defendants request a three-hour hearing, “subject to an extension of time,” so that they
`can question the case agent about, inter alia, “[t]he Government’s failure to follow its
`policies and procedures,” use of the Spamhaus law enforcement portal, alleged “failure to
`memorialize” interactions with SS, and training and experience relating to informants.
`[ECF No. 315, 3-4.]
`Government’s Response to Defendants’ Proposal
`Regarding the Scope of the In Camera Hearing
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`18cr4683-GPC
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`either UC buy in the ensuing prosecution, so the informant’s identity was only potentially
`relevant to Napier’s motion contesting the detective’s veracity in the search warrant. 436
`F.3d at 1134-35. The trial court held an “evidentiary hearing on the issue of sealing” at
`which the parties questioned the affiant. Id. at 1135. “The detective confirmed that the
`justification for sealing presented to the state superior court judge and the district court
`judge had not changed, and that the need for keeping the information confidential
`remained.” Id. Following the evidentiary hearing on whether facts supported continued
`sealing, the district court asked Napier whether “he wanted an in camera hearing where the
`judge would question the confidential informant to determine whether the sealed
`information involving the informant was truthful.” Id. at 1138.
`Napier’s distinction between an evidentiary hearing involving the affiant and limited
`questions pertaining to the sealed portions of a contested affidavit, and an in camera
`proceeding involving the court’s questioning of the informant, demonstrate that the two
`proceedings are distinct. Napier also involved a crisply-defined Fourth Amendment
`challenge where the informant’s identity was ancillary both to the prosecution and the
`Franks challenge. Here, in contrast, defendants’ Fifth and Sixth Amendment challenges
`are amorphous and focus on SS’s purported misconduct and Spamhaus’s relationship to
`the U.S. government. Defendants, unlike Napier, have not filed a motion to unseal or
`challenge a search warrant affidavit. The facts justifying a limited evidentiary hearing of
`the affiant in Napier are therefore absent from the record before this Court. The exceptional
`facts of Napier thereby prove the rule, which is that “in camera hearing[s] to evaluate the
`defendant’s claims and to determine whether the defendant ‘is entitled to an open
`evidentiary hearing,’” are how the courts balance competing interests in a confidential
`source’s identity. Id. at 1138 (quoting Kiser, 716 F.2d at 1273)). This rule holds particularly
`true here where defendants have not “allege[d] facts with sufficient definiteness, clarity,
`and specificity to enable the trial court to conclude that contested issues of fact exist,” so
`therefore an evidentiary hearing is not required. United States v Howell, 231 F.3d 615, 620
`(9th Cir. 2000).
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`Government’s Response to Defendants’ Proposal
`Regarding the Scope of the In Camera Hearing
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`Case 3:18-cr-04683-GPC Document 316 Filed 12/10/21 PageID.4097 Page 6 of 7
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`United States v. Reese, 145 F.3d 1343 (9th Cir. 1998), which, like Napier, involved
`a specific challenge to the government’s probable cause, further demonstrates why an in
`camera hearing is unnecessary. In Reese, Judge Huff “ordered the police officers to submit
`a sealed in camera declaration detailing the information provided by the informant” and,
`based on this declaration, denied Reese’s motion for discovery of the informant’s identity.
`Id. at 2. The Ninth Circuit upheld Judge Huff’s ruling, noting that Reese had not identified
`which facts the informant possessed that were “relevant or helpful to his defense” or
`“essential to a fair trial.” Id. Instead, Reese, like defendants, relied on speculative fears that
`the informant was unreliable or law enforcement may have lied. Id. at 2-3. This Court, like
`Judge Huff, has discretion to limit any in camera proceeding to a review of Special Agent
`Charles Chabalko’s sworn declaration. [See Ex. 1, Decl. of Special Agent Chabalko.] This
`declaration shows that defendants have not presented a good faith factual basis for seeking
`a hearing and no adversarial evidentiary hearing is therefore warranted.
`C. Any in camera questions should be narrowly tailored to a defined defense.
`In the event the Court conducts an in camera hearing, the government submits the
`questioning of SS should be done under seal, by the Court, and limited to the following:
`(1) did the government task or knowingly acquiesce in SS’s obtaining emails involving
`attorney L.G. and Company A employees; (2) did the FBI provide money or benefits to SS
`for any reason related to this case; (3) did the FBI provide money to Spamhaus for
`providing information to the FBI; (4) did the FBI consult with SS on legal or evidentiary
`strategies; and (5) did the FBI task or knowingly acquiesce in SS’s obtaining defense
`attorneys queries of Spamhaus’ website. These issues could be covered by the court in less
`than 30 minutes. In fact, these issues are answered in Agent Chablko’s sworn declaration.
`D. Prosecutors have complied with the Court’s order to review the CHS file.
`As outlined in the accompanying declaration of Assistant U.S. Attorney Melanie
`Pierson, the prosecution has complied with the Court’s order to review the contents of the
`FBI’s CHS file for SS. The relevant discovery has been produced. [See Ex. 2, Decl. of
`AUSA Pierson.]
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`Government’s Response to Defendants’ Proposal
`Regarding the Scope of the In Camera Hearing
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`Case 3:18-cr-04683-GPC Document 316 Filed 12/10/21 PageID.4098 Page 7 of 7
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`DATED: December 10, 2021
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`Respectfully submitted,
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`RANDY S. GROSSMAN
`Acting United States Attorney
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`/s/Melanie Pierson
`Assistant United States Attorney
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`/s/Sabrina Fève
`Assistant United States Attorney
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`/s/Candy Heath
`Senior Counsel
`Computer Crime and Intellectual Property Section
`Department of Justice, Criminal Division
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`Government’s Response to Defendants’ Proposal
`Regarding the Scope of the In Camera Hearing
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