Case 3:18-cr-04683-GPC Document 345 Filed 03/12/22 PageID.4461 Page 1 of 19
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`MINTZ, LEVIN, COHN, FERRIS,
`BIRD, MARELLA, BOXER,
`GLOVSKYAND POPEO, P.C.
`WOLPERT, NESSIM, DROOKS
`Randy K. Jones, SBN 141711
`LINCENBERG & RHOW P.C.
`3580 Carmel Mountain Road, Suite 300
`Gary S. Lincenberg, SBN 123058
`San Diego, CA 92130
`Nicole R. Van Dyk, SBN 261646
`Telephone: (858) 314-1510
`Darren L. Patrick, SBN 310727
`Email: rkjones@mintz.com
`Alexis A. Wiseley, SBN 330100
`
`1875 Century Park East, Floor 23
`Daniel J. Goodrich, BBO 692624 (Pro
`Los Angeles, CA 90067
`Hac)
`Telephone: (310) 201-2100
`Ryan Dougherty, BBO 703380 (Pro Hac)
`Email: glincenberg@birdmarella.com
`1 Financial Center
` nvandyk@birdmarella.com
`Boston, MA 02111
` dpatrick@birdmarella.com
`djgoodrich@mintz.com
` awiseley@birdmarella.com
`rtdougherty@mintz.com
`
`
`
`Attorneys for Mark Manoogian
`Attorneys for Petr Pacas
`
`
`WIECHERT, MUNK &
`BIENERT KATZMAN
`GOLDSTEIN, PC
`LITTRELL WILLIAMS LLP
`David W. Wiechert, SBN 94607
`Thomas H. Bienert, Jr., SBN 135311
`Jessica C. Munk, SBN 238832
`James D. Riddet, SBN 39826
`27136 Paseo Espada, Suite B1123
`Whitney Z. Bernstein, SBN 304917
`San Juan Capistrano, CA 92675
`Carlos A. Nevarez, SBN 324407
`Telephone: (949) 361-2822
`903 Calle Amanecer, Suite 350
`Email: dwiechert@aol.com
`San Clemente, California 92673
` jessica@wmgattorneys.com
`Telephone: (949) 369-3700
`
`Email: tbienert@bklwlaw.com
`
`
` jriddet@bklwlaw.com
`
`
` wbernstein@bklwlaw.com
`
` cnevarez@bklwlaw.com
`
`
`
`Attorneys for Jacob Bychak
`Attorneys for Mohammed Abdul Qayyum
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`
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`Case No. 18-CR-4683-GPC
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`REPLY IN SUPPORT OF MOTION TO DISMISS BASED ON OUTRAGEOUS GOVERNMENTAL CONDUCT
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`Case 3:18-cr-04683-GPC Document 345 Filed 03/12/22 PageID.4462 Page 2 of 19
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF CALIFORNIA
`
`Plaintiff,
`
`UNITED STATES OF AMERICA,
`
`
`
`v.
`
`JACOB BYCHAK, et al.,
`
` Defendants.
`
`
`Case No. 18-CR-4683-GPC
`Honorable Gonzalo P. Curiel
`
`REPLY IN SUPPORT OF
`DEFENDANTS’ MOTION TO
`DISMISS BASED ON
`OUTRAGEOUS GOVERNMENTAL
`MISCONDUCT
`
`
`Date: April 1, 2022
`Time: 2:30 p.m.
`Dept.: 2D
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`Case No. 18-CR-4683-GPC
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`REPLY IN SUPPORT OF MOTION TO DISMISS BASED ON OUTRAGEOUS GOVERNMENTAL CONDUCT
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`Case 3:18-cr-04683-GPC Document 345 Filed 03/12/22 PageID.4463 Page 3 of 19
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`TABLE OF CONTENTS
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`I.
`II.
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`C.
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`INTRODUCTION ............................................................................................. 1
`ARGUMENT .................................................................................................... 2
`A.
`Counsel’s Search Terms Constitute Attorney Work Product. ................ 2
`B.
`Emails Between Goodman and Company B Are Protected by the
`Attorney-Client Privilege. ....................................................................... 4
`The Informant Acted on Behalf of the Government. .............................. 7
`1.
`The Government Acquiesced in the Informant’s Conduct. .......... 7
`a.
`The Government Knew of the Informant’s Pattern
`of Tracking and Providing Counsel’s ROKSO
`Searches. ............................................................................. 7
`The Government Knew the Informant Had Provided
`Privileged Emails. .............................................................. 8
`The Informant Intended to Assist the Government. ................... 10
`2.
`The Government Has the Heavy Burden of Proving No
`Prejudice. ............................................................................................... 11
`At Minimum, an Evidentiary Hearing to Determine the Extent of
`the Taint and the Appropriate Remedy is Warranted. .......................... 12
`III. CONCLUSION ............................................................................................... 13
`
`b.
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`D.
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`E.
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`Case No. 18-CR-4683-GPC
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`TABLE OF AUTHORITIES
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` Page(s)
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`United States v. Aguilar,
`831 F. Supp. 2d 1180 (C.D. Cal. 2011) .......................................................... 5, 12
`United States v. Barrera-Moreno,
`951 F.2d 1089 (9th Cir. 1991) ............................................................................ 13
`United States v. Chen,
`99 F.3d 1495 (9th Cir. 1996) ........................................................................ 4, 5, 6
`United States v. Cleaveland,
`38 F.3d 1092 (9th Cir. 1994) .............................................................................. 10
`United States v. Danielson,
`325 F.3d 1054 (9th Cir. 2003) .............................................................. 1, 7, 11, 12
`United States v. Fernandez,
`388 F.3d 1199 (9th Cir. 2004) ...................................................................... 11, 13
`In re Grand Jury Subpoenas,
`454 F.3d 511 (6th Cir. 2006) .............................................................................. 12
`United States v. Hansen,
`No. 4:18-CR-00346-DCN, 2019 WL 4397335
`(D. Idaho Sept. 13, 2019) ..................................................................................... 2
`United States v. Harrison,
`213 F.3d 1206 (9th Cir. 2000) .............................................................................. 4
`United States v. Jack,
`No. CR S-07-0266 FCD, 2009 WL 453051
`(E.D. Cal. Feb. 23, 2009) ...................................................................................... 2
`United States v. Marshank,
`777 F. Supp. 1507 (N.D. Cal. 1991) ............................................................. 11, 12
`United States v. Mazzarella,
`784 F.3d 532 (9th Cir. 2015) ................................................................................ 7
`United States v. Nobles,
`422 U.S. 225 (1975) ............................................................................................. 2
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`Case No. 18-CR-4683-GPC
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`Case 3:18-cr-04683-GPC Document 345 Filed 03/12/22 PageID.4465 Page 5 of 19
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`United States v. Restrepo,
`930 F.2d 705 (9th Cir. 1991) .............................................................................. 11
`United States v. Ryan,
`548 F. 2d 782 (9th Cir. 1976) ....................................................................... 11, 13
`United States v. Sanmina Corp.,
`968 F.3d 1107 (9th Cir. 2020) .............................................................................. 3
`United States v. Segal,
`No. 02-CR-112, 2004 WL 830428 (N.D. Ill. Apr. 16, 2004)............................... 2
`United States v. Simpson,
`813 F. 2d 1462 (9th Cir. 1987) ..................................................................... 11, 13
`United States v. Sullivan,
`No. CR 17-00104-JMS-KJM, 2020 WL 1815220
`(D. Haw. Apr. 9, 2020) ........................................................................................ 9
`United States v. Walther,
`652 F.2d 788 (9th Cir. 1981) ............................................................................ 7, 8
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`Case No. 18-CR-4683-GPC
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`I.
`
`INTRODUCTION1
`In its Opposition, the government concedes that it was aware of the Informant’s
`pattern of tracking ROKSO searches conducted by the defense attorneys in this case
`since September 15, 2017. The government concedes that it made no attempt to stop
`the Informant from providing information about those searches until October 18,
`2021, only after Defendants raised the issue. And the government concedes that
`Agent Chabalko knowingly sent a zip drive containing privileged emails directly to
`the prosecution team, without first sending them to the filter team to review, and that
`the privileged emails contained in that zip file were never produced to the government
`by Company B. These undisputed facts are more than sufficient to establish that the
`Informant affirmatively and intentionally invaded the attorney client and work product
`privileges, putting the government to its “heavy burden” under United States v.
`Danielson, 325 F.3d 1054 (9th Cir. 2003). The government has failed to meet that
`heavy burden in its papers, and the Court should therefore dismiss this case or permit
`Defendants to fully develop the record of misconduct that the government seeks to
`conceal.
`Indeed, instead of addressing the facts, the Opposition is largely devoted to the
`specious argument that neither counsel’s ROKSO search information nor Goodman’s
`emails to a Company B executive were, in fact, attorney work product or privileged
`information. But the government fails to cite a single case suggesting that search
`terms are not work product, and ignores the facts undermining its privilege arguments.
`Finally, the government asserts that its conduct was permissible because it obtained a
`court order, engaged a filter team, and consulted an ethics advisor. See Opp. 24. But
`the court order did not address the information at issue on this Motion, and the filter
`team and ethics advisor were only consulted after the privilege invasions occurred,
`
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`1 Undefined capitalized terms are defined in the Motion, and referenced exhibits
`are attached to the Under Seal Lincenberg Declaration submitted therewith.
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`Case No. 18-CR-4683-GPC
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`REPLY IN SUPPORT OF MOTION TO DISMISS BASED ON OUTRAGEOUS GOVERNMENTAL CONDUCT
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`and do not excuse the Government’s misconduct. The Motion should be granted.
`II. ARGUMENT
`A. Counsel’s Search Terms Constitute Attorney Work Product.
`The government fails to cite a single case supporting its view that defense
`counsel’s search terms are not protected by the work product doctrine. See Opp. 16-
`17. In fact, the law is clear that “investigatory search terms … are privileged under
`the work product doctrine.” United States v. Hansen, No. 4:18-CR-00346-DCN,
`2019 WL 4397335, at *7 (D. Idaho Sept. 13, 2019) (emphasis added); see also
`United States v. Jack, No. CR S-07-0266 FCD, 2009 WL 453051, at *1 (E.D. Cal.
`Feb. 23, 2009) (declining to order the government to disclose its “key words and
`phrases and search terms” where the government argued that “they are protected
`work product”); United States v. Fumo, No. CRIM.A. 06-319, 2007 WL 3232112, at
`*3 (E.D. Pa. Oct. 30, 2007) (acknowledging argument that “keyword terms” are
`“confidential attorney work product,” but reaching holding on other grounds).2
`Indeed, here, the express purpose of the Informant sharing counsel’s ROKSO
`search information with the government, was to give the government “an idea of
`what [counsel] were up to” and what they “seem[] worried about.” Mot. at 8-9, 13
`(quoting Exs. 6 & 10 (emphasis added)). It is hard to imagine what type of
`information would fall more squarely within the purview of work product
`doctrine—the very purpose of which is to “shelter[] the mental processes of the
`attorney, providing a privileged area within which he can analyze and prepare his
`client’s case”—than information provided to the government for the express purpose
`of sharing what counsel was “up to” and “seem[ed] worried about.” United States v.
`Nobles, 422 U.S. 225, 238 (1975).
`
`
`2 As these cases illustrate, the work-product doctrine applies regardless of whether
`search terms are used by an attorney to develop the legal or factual aspects of a case.
`The government’s attempt to distinguish United States v. Segal, No. 02-CR-112,
`2004 WL 830428 (N.D. Ill. Apr. 16, 2004) on that basis is therefore unavailing.
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`The government is also wrong that defense counsel waived the privilege by
`“disclosing” its search terms to Spamhaus. Opp. 17-18. Waiver of work-product
`protection requires disclosure “to an adversary, and not merely to a third party.”
`United States v. Sanmina Corp., 968 F.3d 1107, 1119 (9th Cir. 2020) (emphasis
`added). Spamhaus is neither defense counsel’s “adversary,” nor its “potential
`adversary.” Id. at 1121. In this case, Defendants have only one adversary: the
`government. As such, defense counsel’s searches in Spamhaus’s ROKSO database
`were done in anticipation of trial in this case against the government, not in
`anticipation of any matter involving Spamhaus. See id. at 1122 (finding no waiver
`where privileged material was “prepared in anticipation of a dispute between
`[defendant] and the [government], not between [defendant] and [the third-party]”).
`Nor is Spamhaus’s privacy policy indicative of waiver. To the contrary, the
`policy states that it may share information “required by or relating to” government
`investigations, but only if it is necessary for “preventing fraud,” “the performance of
`a task carried out in the public interest,” or “to comply with a legal obligation.”3
`Because of these limited grounds for disclosure, defense counsel had a “reasonable
`basis” for believing its searches would remain confidential. Sanmina Corp., 968
`F.3d at 1121. And the government does not (and cannot) argue that any of these
`purposes would be served by invading the privilege of counsel, and passing that
`information to the government to bolster its case.4
`Finally, as explained in the Motion, during the period of the alleged
`conspiracy, the names of Defendants, key witnesses and the netblocks at issue
`appeared on Spamhaus’s block lists. See Mot. 6. The government collected and
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`3 Privacy Policy, SPAMHAUS, https://www.spamhaus.org/organization/privacy/
`(last visited: Mar. 9, 2022).
`4 The government provides no basis whatsoever for its claim that counsel “took no
`steps to mask or otherwise anonymize the[ir] Internet connection” and “took no
`measures to anonymize their actions.” Opp. 18.
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`Case No. 18-CR-4683-GPC
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`relied on this information to build its case. It was therefore incumbent upon defense
`counsel to visit Spamhaus’s website, and the ROKSO database in particular, to
`investigate the charges against Defendants and develop their defense. It cannot be
`that conducting online research to develop defenses constitutes a “waiver”—
`particularly where, as here, the only way for counsel to investigate certain claims is
`through an online third-party like Spamhaus.
`Emails Between Goodman and Company B Are Protected by the
`B.
`Attorney-Client Privilege.
`The government acknowledges that the communications identified in the
`Motion between Goodman and a Company B executive were made in confidence,
`between an attorney and client—who insisted that they remain protected from
`disclosure—and never produced them to the government. Opp. 11. In so doing, it
`does not deny that it intentionally reviewed documents presumptively protected by
`the attorney-client privilege.5 The government sets forth three arguments as to why
`the Court should nonetheless excuse its privilege invasion. Each fails.
`First, the government defends its invasion by asserting that the attorney-client
`privilege does not extend to Goodman’s communications with corporate employees.
`But the Ninth Circuit has made clear that “[t]he attorney-client privilege applies to
`communications between corporate employees and counsel, made at the direction of
`corporate superiors in order to secure legal advice.” United States v. Chen, 99 F.3d
`1495, 1502 (9th Cir. 1996) (citing Upjohn Co. v. United States, 449 U.S. 383, 390
`(1981)). The emails at issue were between Goodman and a Company B executive,
`and copied Defendant Pacas and CY. See Exs. 13A and 13B. At the time they were
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`5
`The government’s assertion that the “prosecution team” did not review
`privileged emails does not excuse the government’s invasion, because “the
`knowledge of one government actor must be imputed to another.” Opp. 2, 22
`(emphasis added). United States v. Harrison, 213 F.3d 1206, 1215 (9th Cir. 2000),
`(emphasis added). The government does not address—much less dispute—that
`Agent Chabalko reviewed or knew the contents of at least one of the privileged
`emails. Mot. 11-12 (citing Ex. 14).
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`Case No. 18-CR-4683-GPC
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`sent, Goodman served as counsel to Company B, and Defendant Pacas and CY were
`Company B employees.6 Citing United States v. Graf, 610 F.3d 1148 (9th Cir.
`2010), the government argues that Defendants must show that they hold a “joint
`privilege” over communications with corporate counsel. Opp. 12. No such showing
`is required because Company B never produced the emails to the government and,
`thus, never waived the privilege in the first place. See id. at 1156 (addressing an
`employee’s “attempt to claim a personal attorney-client privilege … after the
`corporation has waived its own privilege”) (emphasis added).7
`Second, the government asks the Court to ignore its privilege invasion
`because Goodman was providing “business” advice. This argument ignores
`controlling Ninth Circuit law holding that attorney-client privilege extends to “legal
`advice regarding the client’s business affairs.” Chen, 99 F.3d at 1501 (emphasis
`added). “[T]here is a rebuttable presumption that the lawyer is hired … to give
`‘legal advice,’ whether the subject of the advice is criminal or civil, business … or
`anything else.” Id. Goodman was retained by Company B as outside counsel to
`provide legal advice on various issues, including Company B’s response to anti-
`spam organizations such as Spamhaus. Ex. 2 at 1766. Thus, her communications
`with Company B personnel on that topic are presumptively privileged.
`Without any facts to rebut that presumption, the government resorts to
`arguing that Goodman’s emails are not privileged because they “are the same type
`
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`6 CY, an “ex-employee” of Company B, “cannot waive the corporation’s
`privilege” (Chen, 99 F.3d at 1502), as the government suggests. See Opp. 5.
`7
`In any event, courts have not limited the parties who may seek dismissal to the
`privilege holders. See, e.g., United States v. Aguilar, 831 F. Supp. 2d 1180, 1182,
`1194 (C.D. Cal. 2011) (dismissing charges against all defendants, explaining that
`the government, among other things, “improperly reviewed e-mail[s] … between
`one Defendant and her lawyer” and “misrepresented how it had gone about
`obtaining such e-mail[s]”) (emphasis added). Defendants may still claim a violation
`of their rights based on an intrusion into the attorney-client relationship.
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`of [Goodman] emails” that Judge Moskowitz determined were not privileged. Opp.
`at 14. That argument is a non-starter. Judge Moskowitz only considered emails
`between Goodman and Brower—a third party retained to assist Goodman in
`representing Company A and Company B—and not confidential emails between
`Goodman and Company B personnel. Compare Exs. 13A & 13B, with Gov. Exs. 3
`& 4; see also Gov. Ex. 1 at 6-7 (discussing the purpose of a “third party
`communication”).8 Moreover, the fact that non-privileged portions of the email
`chain in Exhibit 13A were produced does not demonstrate that every version of the
`email chain—including versions that contain privileged content—is not privileged.
`See Opp. 6, 14-15. Indeed, the government does not (and cannot) dispute that the
`privileged version of the email chain was not produced because it is privileged.
`Third, in a last ditch effort to justify its review of privileged emails, the
`government invokes the crime-fraud exception. To do so, the government must
`submit “evidence that if believed by the jury would establish the elements of an
`ongoing violation.” Chen, 99 F.3d at 1503. “Mere allegations or suspicion by the
`government are insufficient.” Id. Here, the government merely asserts that the
`privileged emails “suggest[] that false information be provided to the anti-spam
`organization.” Opp. 15-16. This argument is entirely unsupported by the
`underlying documents, and based on sheer speculation that is insufficient to meet
`the legal standard. See Exs. 13A and 13B. The government further speculates that
`the emails are “in furtherance of the scheme charged in this case, which involved
`disguising the identity of the entity in control of the IP addresses”—in other words,
`using a DBA, which is a common and entirely legal business practice. Opp. 16.
`Again, these sort of allegations are insufficient to meet the standard.
`
`
`8
`If the government actually believed that the emails in Exhibits 13A and 13B
`were “the same type” of communications as the third-party emails involving
`Brower, the prosecution team would not have turned them over to the taint team for
`review on September 23, 2020—well after Judge Moskowitz’s February 2019 order.
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`Case No. 18-CR-4683-GPC
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`C. The Informant Acted on Behalf of the Government.
`The government argues that Defendants failed to establish conduct by a
`government agent because the Informant “was not working on behalf of the
`government.” Opp. 8.9 Again, the government is wrong. An individual acts as a
`government agent if (1) “the government knew of or acquiesced in the intrusive
`conduct” and (2) the informant “intended to assist law enforcement.” United States
`v. Mazzarella, 784 F.3d 532, 539 (9th Cir. 2015). Undisputed facts—described at
`length in the Motion (see Mot. 8-9, 15-17)—show that both prongs are met.
`The Government Acquiesced in the Informant’s Conduct.
`1.
`The government acquiesces in an informant’s conduct when it has knowledge
`of the informant’s “particular pattern” of activity. United States v. Walther, 652
`F.2d 788, 793 (9th Cir. 1981). Here, there is no question that the government knew
`that the Informant was sharing privileged information for years without objection.
`The Government Knew of the Informant’s Pattern of
`a.
`Tracking and Providing Counsel’s ROKSO Searches.
`The government does not dispute that it was aware of the Informant’s
`“particular pattern” of tracking and sharing ROKSO searches conducted by or on
`behalf of attorneys since at least September 15, 2017. Ex. 6. Nor does the
`government dispute that, over the next four years, the Informant sent at least five
`emails containing ROKSO search terms related to this case.10 Exs. 6, 7, 8, 9, 10.
`This clear pattern of activity, and the government’s knowledge thereof, establishes
`
`
`9 The government strips this quote from its factual context in Danielson. As noted
`in the Motion (see Mot. 15), the next line in the Danielson opinion explains that
`“once the [government] learned … that [the informant] had obtained trial strategy
`information,” if the informant continued to engage in such conduct, it was “now
`acting on behalf of the government.” 325 F.3d at 1068 (emphasis added).
`10 Four emails were sent while the protective order proceedings were pending. The
`government’s failure to even ask the Informant to stop until Judge Moskowitz
`resolved the motion shows its blatant disregard for its constitutional obligations.
`
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`Case No. 18-CR-4683-GPC
`7
`REPLY IN SUPPORT OF MOTION TO DISMISS BASED ON OUTRAGEOUS GOVERNMENTAL CONDUCT
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`the government’s acquiescence in the Informant’s improper conduct. See Walther,
`652 F.2d at 793 (“The [government] … knew … that [the informant] had made it a
`practice to inspect [luggage], and had acquiesced in that practice.”). By September
`2021, the government had acquiesced in the Informant’s conduct to such a degree
`that its own conduct was akin to deliberate intrusion. It does not matter whether the
`government knew that the Informant would provide Brower’s ROKSO search terms
`“related to this case” (Ex. 4), or defense counsel’s ROKSO search terms (Ex. 5).
`See Walther, 652 F.2d at 793 (finding violation even though “the DEA had no prior
`knowledge that this particular search would be conducted”). The Informant’s prior
`emails are proof of the government’s acquiescence in the Informant’s pattern of
`tracking and sharing counsel’s search terms. See id. (“[The informant’s] prior
`experience with the DEA provides proof of the government’s acquiescence.”).
`The government’s cited cases do not suggest otherwise. This is not a case
`where there is no evidence that the Informant consulted with the government prior
`to tracking and providing ROKSO search information. See Opp. 8-9 (citing United
`States v. Ryan, 548 F. 2d 782, 791 (9th Cir. 1976)). Here, the Informant regularly
`emailed with “updated” ROKSO searches. See, e.g., Exs. 8, 9, 10. Nor is this a case
`where the government “passive[ly] tolera[ted]” the conduct despite “warn[ing] [the
`informant] to refrain.” Opp. 8 (quoting United States v. Simpson, 813 F. 2d 1462,
`1468 (9th Cir. 1987)). Here, the government rendered no warning, and even
`thanked the Informant for providing this information. See, e.g., Ex. 9.
`The Government Knew the Informant Had Provided
`b.
`Privileged Emails.
`The government also knew that the Informant planned to share facially
`privileged emails involving Goodman, and took no measures to safeguard them
`from being improperly revealed to the prosecution team until after they had already
`been provided. The timeline is undisputed:
`• On September 27, 2017, the Informant told the government that he had
`facially privileged emails involving Goodman. See Ex. 11.
`
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`Case No. 18-CR-4683-GPC
`8
`REPLY IN SUPPORT OF MOTION TO DISMISS BASED ON OUTRAGEOUS GOVERNMENTAL CONDUCT
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`• On October 12, 2017, the Informant sent the government a zip file
`containing those facially privileged emails. See Ex. 12.
`
`• On November 8, 2018, the Informant sent the government a “fixed” zip
`file containing the same facially privileged emails. See Ex. 13.
`
`• On November 8, 2018, the Informant told Agent Chabalko to “Read the
`linda_libel.txt email in particular”—referring to one of the facially
`privileged emails, which was never produced to the government by
`anyone—and then summarized the contents of that email. See Ex. 14.11
`While the government touts its use of a taint team, “only documents known to
`be privilege-free” may pass from the taint team to the prosecution team. United
`States v. Sullivan, No. CR 17-00104-MS-KJM, 2020 WL 1815220, at *8 (D. Haw.
`Apr. 9, 2020) (emphasis in original). The government does not dispute that: (i) after
`receiving the first zip file on September 27, 2017, “[n]o effort was made to have a
`filter team review the emails or to develop facts regarding the origin of the emails”
`(Mar. 4, 2022 Pierson Decl. ¶ 13); (ii) Agent Chabalko sent the November 8, 2018
`zip file directly to the prosecution team (Nov. 1, 2021 Pierson Decl. ¶ 8); and (iii)
`the government did not employ a filter team to review those documents until
`September 23, 2020 (see id.). Thus, when the zip file passed from Agent Chabalko
`to the prosecution team, its contents were not “known” to be privilege-free, and the
`government’s use of an after-the-fact filter team cannot change that.
`Instead of acknowledging its errors, the government ties itself in knots trying
`to justify its conduct, asserting—for the first time in its Opposition—that the zip file
`was not sent to a filter team because there was “no reason to believe that such effort
`would produce evidence relevant in this prosecution.” Mar. 4, 2022 Pierson Decl. ¶
`13. That argument strains credulity when the government fails to explain how it
`could have reached this conclusion if, as Agent Chabalko states, he “did not review
`the documents in the zip file” and “did not discuss those documents or their contents
`
`
`11 The government completely ignores Exhibit 14, and Agent Chabalko offers no
`explanation—either for his improper conduct, or for his failure to be forthcoming
`with the Court about the extent of his improper conduct. See Mot. 11.
`
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`Case No. 18-CR-4683-GPC
`9
`REPLY IN SUPPORT OF MOTION TO DISMISS BASED ON OUTRAGEOUS GOVERNMENTAL CONDUCT
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`with the [Informant].” Supp. Chabalko Decl. ¶¶ 5, 9. Incredibly, the government
`then suggests that Agent Chabalko—an FBI agent of nearly 20 years—would not
`have known to withhold privileged information from the prosecution team when it
`requested “all” emails. See id. ¶ 1 (“I have been a Special Agent for the [FBI] …
`since 2003”); Mar. 4, 2022 Pierson Decl. ¶ 14 (“We did not discuss whether ‘all’
`emails would include the emails” in the zip file). Given the government’s repeated
`failure to acknowledge its errors and adequately explain its conduct, combined with
`Agent Chabalko’s failure to be forthcoming, an evidentiary hearing is warranted.
`The Informant Intended to Assist the Government.
`2.
`The government argues that the Informant “collected the information with the
`intent to further its own ends.” Opp. at 10. But “the mere existence of a legitimate,
`independent motive apart from crime detection or prevention does not immunize
`[improper conduct] from scrutiny.” United States v. Cleaveland, 38 F.3d 1092,
`1094 (9th Cir. 1994), as amended (Jan. 12, 1995). The Informant was collecting and
`sharing ROKSO search terms to assist the government in its investigation and
`prosecution of this case, and was in fact successful in advancing the governme