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`ROBERT S. BREWER, JR.
`United States Attorney
`MELANIE K. PIERSON
`Assistant U.S. Attorney
`California Bar No. 112520
`Office of the U.S. Attorney
`880 Front Street, Room 6293
`San Diego, CA 92101
`Tel: (619) 546-7976
`Fax: (619) 546-0420
`Email: Melanie.Pierson@usdoj.gov
`
`Attorneys for the United States
`
`UNITED STATES DISTRICT COURT
`
`SOUTHERN DISTRICT OF CALIFORNIA
`
`UNITED STATES OF AMERICA,
`Case No. 18cr4683-GPC
`
` GOVERNMENT’S RESPONSE AND
`
`Plaintiff,
`OPPOSITION TO DEFENDANTS’ MOTION
`
`FOR BILL OF PARTICULARS
`v.
`
`JACOB BYCHAK (1),
`
`MARK MANOOGIAN (2),
`MOHAMMED ABDUL QAYYUM (3),
`PETR PACAS (4)
`
`
`Defendants.
`COMES NOW the plaintiff, United States of America, by and through
`its counsel, United States Attorney Robert S. Brewer, Jr. and Assistant
`U.S. Attorneys Melanie K. Pierson, Robert Ciaffa, and Sabrina L. Fève,
`and hereby files its Response and Opposition to Defendants’ Motion for
`Bill of Particulars. Said Response is based on the files and records
`of the case.
`
`DATED:January 18, 2019
`
`
`
`
`
`
`
`Respectfully submitted,
`ROBERT S. BREWER, JR.
`United States Attorney
`/s/Melanie K. Pierson
`Assistant United States Attorney
`
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`I.
`STATEMENT OF THE CASE
`On October 31, 2018, a federal grand jury in the Southern District
`of California returned a ten-count indictment charging defendants Jacob
`Bychak, Mark Manoogian, Mohammed Abdul Qayyum and Petr Pacas, with
`Conspiracy, in violation of Title 18, United States Code, Section 371;
`four counts of Wire Fraud, in violation of Title 18, United States Code,
`Section 1343; five counts of Electronic Mail Fraud, in violation of
`Title 18, United States Code, Section 1037(a)(5), and Criminal
`Forfeiture. The charges related to the defendants’ fraudulent
`acquisition of Internet Protocol (IP) addresses and the use of the
`purloined IP addresses to send spam.
`
`All defendants appeared for arraignment without being arrested. On
`November 1, 2018, defendants Bychak and Manoogian were arraigned, and
`entered pleas of not guilty to all charges. A hearing on all motions
`was scheduled for December 7, 2018. Defendants Qayyum and Pacas were
`arraigned on November 5, 2018, and also entered pleas of not guilty to
`all charges. At the joint request of the parties, the motion date was
`continued to January 25, 2019.
`
`On November 21, 2018, the defendants filed a joint motion for a
`bill of particulars. The United States responds to this motion herein.
`II
`STATEMENT OF FACTS
`The defendants were employed by Company A, a San Diego firm engaged
`in the business of digital advertising. Defendant Jacob Bychak held,
`among others, the title of Business Operations Manager. Defendant Mark
`
`Response and Opposition to Motion
`for Bill of Particulars
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`18cr4683-GPC
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`Manoogian (who is an attorney) represented himself to be Business
`Development Manager, and defendant Mohammed Abdul Qayyum was the
`Technical Operations Manager. Defendant Petr Pacas was employed as
`Director of Operations.1
`To transmit its flood of digital advertising, Company A required
`numerous Internet Protocol (IP) addresses to send its commercial emails.
`Company A needed to constantly acquire large groups, or blocks, of IP
`addresses (hereafter, “netblocks”) because the IP addresses used to
`transmit their email advertising were repeatedly blocked by spam
`filters. Jake Bychak and Petr Pacas, on behalf of Company A, acquired
`a number of cut-rate netblocks from Daniel Dye (charged elsewhere) that
`had been hijacked from their authorized users. To use these netblocks
`to send commercial emails, the defendants provided a fraudulent Letter
`of Authorization (LOA) -- supposedly from the authorized user -- to the
`hosting companies and internet service providers (ISPs), indicating that
`the mailer was authorized by the registrant to use the netblock. Mark
`Manoogian and Abdul Mohammed (with the knowledge and agreement of their
`co-conspirators) knowingly created and used false LOAs, represented to
`be from the authorized users, and sent them to the ISPs to allow Company
`A to use the hijacked netblocks to send commercial email, which earned
`Company A substantial profits during the period of the conspiracy.
`Dye introduced the defendants to Vince Tarney (charged elsewhere),
`who operated his own firm in New Jersey, as a hosting company willing
`to host risky IP addresses. Both Dye and Tarney have pled guilty to
`
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`1 Pacas moved to a related company in San Diego for several years and
`then back to Company A after Company A acquired the related company.
`
`3
`Response and Opposition to Motion
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`for Bill of Particulars
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`18cr4683-GPC
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`felony violations of the CAN-SPAM Act (electronic mail fraud), and are
`awaiting sentencing.
`
`
`III
`POINTS AND AUTHORITIES
`A Bill of Particulars Is Not Warranted in This Case
`A.
`Rule 7(f) of the Federal Rules of Criminal Procedure governs a bill
`of particulars. A bill of particulars has three functions: (1) to inform
`the defendant of the nature of the charge with sufficient precision to
`allow him to prepare for trial, (2) to avoid or minimize the danger of
`surprise at the time of trial, and (3) to enable to defendant to avoid
`double jeopardy when the indictment itself is too vague. United States
`v. Giese, 597 F. 2d 1170, 1180 (9th Cir. 1979). These purposes are served
`if the indictment provides sufficient details of the charges and if the
`Government provides full discovery to the defense. United States v.
`Mitchell, 744 F.2d 701, 705 (9th Cir. 1984). Rule 7(f) is not intended
`to serve as a vehicle for obtaining discovery form the government.
`United States v. Grace, 401 F. Supp. 2d 1103, 1106 (D. Mont. 2005),
`citing Cooper v. United States, 282 F. 2d 527, 532 (9th Cir. 1960). The
`Rule should not be invoked to “force the Government to spread its entire
`case before the accused.” Id. ”The defendant’s Constitutional right is
`to know the offense with which he is charged, not to know the details
`of how it will be proved.” United States v. Kendall, 665 F. 2d 126, 135
`(9th Cir. 1981). Rather, all that is required is that the defendant be
`sufficiently informed of the government’s theory of the case. Yeargain
`v. United States, 314 F. 2d 881,882 (9th Cir. 1963).
`
`Response and Opposition to Motion
`for Bill of Particulars
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`4
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`A bill of particulars is not a matter of right. United States v.
`Burgin, 61 F.2d 1352, 1358 (5th Cir.1980). So long as the Government
`provides the defense with a detailed indictment and a “significant amount
`of discovery,” no bill of particulars is warranted. United States v.
`Ayers, 924 F.2d 1468, 1483 (9th Cir. 1991). “Full discovery obviates
`the need for a bill of particulars.” United States v. Giese, 594 F.2d
`1170, 1180 (9th Cir.1979). “Even if an indictment is vague, a bill of
`particulars is not necessary if the government’s disclosures and
`discovery adequately advise the defendant of the charges against him.”
`United States v. Middleton, 35 F. Supp. 2d 1189, 1193 (N.D. Cal. 1999).
`B.
`The Indictment Is Sufficiently Precise to Inform Defendants
`of the Charges and to Protect them from Double Jeopardy.
`The Indictment in this case charges three separate offenses: 1)
`conspiracy to commit wire fraud and electronic mail fraud (18 U.S.C. §
`371); 2) wire fraud (18 U.S.C. § 1343); and 3) electronic mail fraud (18
`U.S.C. § 1037). All three offenses stem from the defendant’s false
`representations that they were the registrant, or the legitimate
`successor in interest to the registrant, of various IP netblocks, and
`their subsequent use of these netblocks to send commercial electronic
`mail messages, commonly known as spam. These allegations are detailed
`in paragraph two of the Indictment, which identifies the conspiracy’s
`“Manner and Means,”2 and in paragraphs five through eight, which describe
`
`2 Paragraph two reads “The objects of the conspiracy were to be accomplished, in
`substance, as follows:
`
`a. Members of the conspiracy would identify or pay to identify blocks of
`Internet Protocol (IP) addresses called “netblocks” that were
`registered to others and appeared to be inactive.
`
`b. Members of the conspiracy would create and send letters to Internet
`hosting companies fraudulently stating the letter bearer had been
`5
`Response and Opposition to Motion
`18cr4683-GPC
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`for Bill of Particulars
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`the scheme to defraud.3 In addition, Counts Six through Ten of the
`Indictment specify, by numerical identity and associated domain name,
`the IP addresses alleged to have been involved in the substantive
`offenses. This information is adequate to advise the defendants of the
`nature of the charges they face, to minimize or avoid surprises at trial,
`and to avoid double jeopardy in future cases. Accordingly, no bill of
`particulars is warranted. United States v. Giese, 597 F. 2d 1170, 1180
`(9th Cir. 1979).
`C.
`Full Discovery and the Government’s Disclosures Further
`Obviate the Need for a Bill of Particulars.
`The Government has already produced two discs of discovery, has
`
`loaded loading near a million pages of additional evidence onto hard
`drives for the defense. The first disc, produced on November 4, 2018,
`
`authorized by the registrants of the inactive IP addresses to use the
`IP addresses.
`
`c. Members of the conspiracy would use the fraudulently acquired IP
`addresses to send commercial email (“spam”) messages.”
` Paragraphs five through eight read:
`
`5. It was a part of the scheme and artifice to defraud that the defendants
`searched for IP addresses registered to third parties that appeared to
`be inactive.
`
`6. It was a further part of the scheme and artifice to defraud that the
`defendants created and sent letters to Internet hosting companies
`fraudulently making it appear that the registrant of the IP addresses
`had authorized the defendants’ use of the IP addresses.
`
`7. It was a further part of the scheme and artifice to defraud that the
`defendants used the IP addresses to send commercial email messages
`knowing they did not obtain control of the IP addresses from the true
`registrant or the legitimate successor in interest.
`
`8. It was a further part of the scheme and artifice to defraud that the
`defendants concealed their use of the IP addresses to send “spam”
`emails by using business names, post office boxes, and email addresses
`under different names.
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` 3
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`Response and Opposition to Motion
`for Bill of Particulars
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`contained 888 pages consisting of the 257 grand jury exhibits, which are
`the primary documents the United States will use to prove its case-in-
`chief, together with an index. The second disc, produced on December
`4, 2018, also with an index, contained approximately 850 pages consisting
`of approximately 180 reports generated by the FBI in the course of the
`investigation.
`The Government has also loaded approximately one terabyte of
`evidence onto hard drives for the defense, which was made available the
`week of January 14, 2019. The hard drives include the evidence obtained
`by the United States from all search warrants and subpoenas issued in
`the course of the investigation, and also includes an index.
`In addition to providing full discovery, Government counsel met at
`length with counsel for each of the defendants and explained the
`Government’s theory of the case against each of their clients, and showed
`counsel evidence that the Government intends to use to prove its case.
`These disclosures further obviate the need for a bill of particulars.
`United States v. Giese, 597 F. 2d 1170, 1180 (9th Cir. 1979).
`D.
`The Particulars Requested Are Already in the Possession of the
`Defense.
`Because full discovery has been provided, the defendants are
`already in possession of the particulars they are requesting. Their
`additional requests will be addressed individually below.
`1.
`IP addresses and Netblocks Obtained and Used Illegally
`Counts Six through Ten of the Indictment specify, numerically and
`by associated domain name, the IP addresses and netblocks that are the
`subject of the substantive counts. In addition, the Government intends
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`Response and Opposition to Motion
`for Bill of Particulars
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`to present evidence of other IP addresses to support the conspiracy
`charged in Count 1. The first disc of discovery, provided to the
`defendants on November 4, 2018, contains 888 pages consisting of the 257
`grand jury exhibits, which, as mentioned above, are the primary documents
`the United States will use to prove its case-in-chief. Grand Jury
`Exhibit 251 identifies, numerically and by associated domain names, the
`eleven IP netblocks that the Government alleges were illegally hijacked
`by the defendants, providing the defense with the particular they
`request.
`
`2.
`All False Statements and Letters to Hosting Companies
`The grand jury exhibits provided to the defense on November 4,
`2018, are roughly organized by IP netblock and group the evidence
`relating to each particular netblock together. The grand jury exhibits
`provide copies of all of the Letters of Authority (LOAs) located by the
`Government to date related to the eleven netblocks specified in Grand
`Jury Exhibit 251, and emails related to their origin and use. These LOAs
`form the basis for the false statements and fraudulent submissions
`alleged in the Indictment. The discovery provided on the hard drives,
`in addition to the Grand Jury exhibits, contains numerous copies of
`these same LOAs, which were transmitted among the co-conspirators. The
`discovery has been provided in a format that can be searched by keywords,
`allowing the defense to easily locate all copies of the LOAs.
`Accordingly, the defense has been provided with the particular it
`requests.
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`Response and Opposition to Motion
`for Bill of Particulars
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`All Spam Emails and Multiple Commercial Email Messages
`3.
`The defense seeks particulars regarding the individual emails that
`will be used to prove that the defendants sent multiple commercial email
`messages using the netblocks at issue. Once again, the defendants are
`already in possession of this information in the discovery they were
`provided on November 4, 2018. Along with the information about each
`netblock, among the grand jury exhibits the United States provided
`internal tracking records obtained from the defendants, called
`“Blackmail Reports.” These reports tracked, on a daily basis, the
`various commercial emails sent by the defendants. The reports specified
`the commercial email campaign sent by netblock, and the exact number of
`emails sent each day for that campaign by the each IP address. The
`reports indicate that the defendants often sent as many as 81 million
`commercial emails per day using the netblocks at issue. Because of the
`huge numbers of emails involved, it is unreasonable to request that the
`Government identify each individual email, since the commercial nature
`and number of the emails sent using each IP address (the elements that
`the Government must prove at trial) are shown by the Blackmail Reports.
`Accordingly, the defense has been provided with the particular it
`requests.
`All Business Names Used to Conceal Identity
`4.
`The defense requests particulars regarding business names, post
`office boxes, and email addresses used by the defendants to conceal
`their identity as the senders of the spam as issue, which are alleged
`as part of the scheme to defraud in the wire fraud counts. During the
`course of the conspiracy, the defendants utilized hundreds of DBAs, post
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`Response and Opposition to Motion
`for Bill of Particulars
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`office boxes, and thousands of domain names to conceal their identity
`as the senders of spam. Each time a spamwatch organization or ISP would
`question or block delivery of their emails, the defendants would change
`the names of the domain sending the emails, the IP addresses used, and
`create new DBAs and email address to control these new domain names.
`This occurred on a regular (sometimes weekly) basis. The data identifying
`the business names, domain names, and post office boxes is available in
`the discovery provided. It can be found in the responses to subpoenas
`issued to the issuers of the DBAs, domain names, and post office boxes
`(whose identities are well known to the defendants). Accordingly, the
`defense has been provided with the particular it requests.
`5.
`Amount of Proceeds Alleged.
`The defense seeks particulars regarding the derivation of funds
`warranting forfeiture, the amount of funds generated by the illegal
`conduct, and the properties subject to forfeiture. The particulars
`sought by the defense are contrary to the plain language of Rule 32.2(a)
`of the Federal Rules of Criminal Procedure,4 which states that, “The
`indictment or information need not identify the property subject to
`forfeiture or specify the amount of any money judgement that that the
`government seeks.” As a practical matter, the discovery provided on the
`hard drives contains the internal financial records of the company that
`establish the amount of money earned by the defendant’s employer
`utilizing the hijacked netblocks. Accordingly, although they are not
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`4 The case relied upon by the defense, United States v. Vasquez-Ruiz, 136 F. Supp.2d
`941 (N.D. Ill.2001) cites Rule 7(c)(2) of the Federal Rules of Criminal Procedure.
`This Rule was superseded by Rule 32.2(a) in 2002 Amendments to the Federal Rules.
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`18cr4683-GPC
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`for Bill of Particulars
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`entitled to such particulars, the defense is in possession of the
`information sought.
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`III
` CONCLUSION
`On the basis of the foregoing, the Government respectfully requests
`that Defendants’ Motion for Bill of Particulars be denied.
`
`
`DATED: January 18, 2019
`
`
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`Respectfully submitted,
`ROBERT S. BREWER, JR.
`United States Attorney
`
` /s/ Melanie K. Pierson
`MELANE K. PIERSON
`Assistant U.S. Attorney
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`Response and Opposition to Motion
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`UNITED STATES DISTRICT COURT
`
`SOUTHERN DISTRICT OF CALIFORNIA
`
`
`
`UNITED STATES OF AMERICA, )
` )
`Plaintiff,
`)
`)
`)
`)
`
`)
`JACOB BYCHAK (1),
`)
`
`MARK MANOOGIAN (2),
`)
`MOHAMMED ABDUL QAYYUM (3),
`)
`PETR PACAS (4),
`
`
`)
`)
`Defendants.
`)
` )
`
`IT IS HEREBY CERTIFIED THAT:
`
`I, MELANIE K. PIERSON, am a citizen of the United States and am
`at least eighteen years of age. My business address is 880 Front
`Street, Room 6293, San Diego, California 92101-8893.
`
`I am not a party to the above-entitled action. I have caused
`service of the Government’s Response and Opposition to Defendant’s
`Motion for Bill of Particulars on the opposing party by electronically
`filing the foregoing with the Clerk of the District Court using its
`ECF System, which electronically notifies them.
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`27
`28
`
`
`
`v.
`
`Case No. 18-CR46836-GPC
`
`CERTIFICATE OF SERVICE
`
`I declare under penalty of perjury that the foregoing is true and
`correct.
`
`Executed on January 18, 2019.
`
`s/ Melanie K. Pierson
`MELANIE K. PIERSON
`
`
`
`Response and Opposition to Motion
`for Bill of Particulars
`
`
`
`12
`
`
`18cr4683-GPC
`
`