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`Exhibit
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`
`ADAM L. BRAVERMAN
`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’ MOTIONS:
`
`v.
`
`1. FOR DISCOVERY
`JACOB BYCHAK (1),
`2. FOR FURTHER MOTIONS
`
`MARK MANOOGIAN (2),
`3. TO PRESERVE EVIDENCE
`MOHAMMED ABDUL QAYYUM (3),
`
`
`Defendants.
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`COMES NOW the plaintiff, United States of America, by and through
`its counsel, United States Attorney Adam L. Braverman and Assistant U.S.
`Attorney Melanie K. Pierson, and hereby files its Response and Opposition
`to Defendants’ Motions for Discovery, for Further Motions, and to
`Preserve Evidence. Said Response is based on the files and records of
`the case.
`
`DATED: January 11, 2019
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`Respectfully submitted,
`ADAM L. BRAVERMAN
`United States Attorney
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`/s/Melanie K. Pierson
`Assistant United States Attorney
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`I.
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`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 20, 2018, defendant Qayyum filed motions for discovery,
`for further motions, and to preserve evidence. This motion was joined
`by defendant Manoogian on November 21, 2018, and by defendant Bychak on
`November 26, 2018. The United States responds to these motions herein.
`
`Response and Opposition to Motions for Discovery,
`Preservation of Evidence and for Further Motions
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`2
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`18cr4683-GPC
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`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
`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 Operations1.
`In order to transmit its flood of digital advertising, Company A
`required numerous Internet Protocol (IP) addresses to send out its
`commercial emails. Company A needed to constantly acquire large groups
`of IP addresses (netblocks) because the IP addresses carrying their
`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. In order to be able 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
`
`
`1 Pacas moved to a related company in San Diego for several years and
`then back to Company A after the related company was acquired by Company
`A.
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`Response and Opposition to Motions for Discovery,
`Preservation of Evidence and for Further Motions
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`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 space. Both Dye and Tarney have pled guilty to felony
`violations of the CAN-SPAM Act (electronic mail fraud), and are awaiting
`sentencing.
`
`III
`POINTS AND AUTHORITIES
`A. THE GOVERNMENT HAS AND WILL COMPLY WITH RULE 16 OF THE FEDERAL
`RULES OF CRIMINAL PROCEDURE. ANY ADDITIONAL DISCOVERY DEMANDS OF
`THE DEFENDANTS SHOULD BE DENIED.
`
`The Government has already produced two discs of discovery, and is
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`in the processing of loading additional evidence onto hard drives for
`the defense. The first disc, produced on November 4, 2018, contained
`888 pages consisting of the 257 grand jury exhibits, which are the
`primary documents the United States will use to prove its case, 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.
`In addition, on or about December 17-20, 2018, the Government
`produced to the defendants a hard drive containing approximately 55
`4
`Response and Opposition to Motions for Discovery,
`18cr4683-GPC
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`Preservation of Evidence and for Further Motions
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`gigabytes (922,971 pages) of discovery, comprising the evidence obtained
`by the United States from all search warrants and subpoenas issued in
`the course of the investigation.
`The discovery provided via the two discs and the hard drives is
`well in excess of that required by Rule 16 of the Federal Rules of
`Criminal Procedure. The Government will continue to comply with the
`rules concerning discovery. The defendants’ specific requests are
`discussed below.
`1. The Government Has Already Disclosed Information Subject to
`Disclosure under Rule 16(a)(1)(A)and (B) of the Federal Rules
`of Criminal Procedure.
`The Government has already disclosed the written and recorded
`statements of the defendants, as well as the substance of any relevant
`oral statements they made in response to questions by Government agents.
`The defendants are not entitled to summaries of oral statements of
`the defendants made to persons not known by them to be government agents,
`and the memorialization of any such statements in a written report does
`not make them discoverable as Awritten@ statements of the defendants.
`United States v. Hoffman, 794 F.2d 1429, 1432, n.4 (9th Cir.1986).
`The Government will not be producing documents relating to the
`defendants’ arrests, as none of the defendants in this case were
`arrested. Instead all appeared for arraignment with their attorneys.
`2. The Government Will Comply with Rule 16(a)(1)(D).
`The Government has already provided the defendants with a copy of
`the printout of the results of the database check for evidence of prior
`convictions.
`The Government is well aware of and will fully perform its duty
`5
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`Response and Opposition to Motions for Discovery,
`Preservation of Evidence and for Further Motions
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`under Brady v. Maryland, 373 U.S. 83 (1963) and United States v. Agurs,
`427 U.S. 97 (1976), to disclose exculpatory evidence within its
`possession that is material to the issue of guilt or punishment, as well
`as its duty under Giglio v. United States, 405 U.S. 150 (1972) to provide
`information on any benefits provided to Government witnesses in exchange
`for their testimony and impeachment material. The Government agrees to
`provide this information at least one week prior to trial, after all of
`the trial witnesses have been identified.
`
`3. The Government Will Comply with Rule 16(a)(1)(E).
`
`The Government will permit the defendants to inspect and copy or
`
`photograph all books, papers, documents, photographs, tangible objects,
`buildings, or places, or portions thereof, which are within the
`possession, custody, or control of the Government, and which are material
`to the preparation of the defendants’ defense or are intended for use
`by the Government as evidence-in-chief at trial or were obtained from
`or belong to the defendants, and agrees to preserve such evidence during
`the pendency of this proceeding.
`The defendants are not entitled to all evidence known or believed
`to exist which is, or may be favorable to the accused, or which pertains
`to the credibility of the Government's case. As stated in United States
`v. Gardner, 611 F.2d 770 (9th Cir. 1980):
` “[T]he prosecution does not have a constitutional duty to
`disclose every bit of information that might affect the jury's
`decision; it need only disclose information favorable to the
`defense that meets the appropriate standard of materiality.”
`
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`Response and Opposition to Motions for Discovery,
`Preservation of Evidence and for Further Motions
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`Id., 611 F.2d at 774-775 (citations omitted). See also United States
`v. Sukumolachan, 610 F.2d 685, 687 (9th Cir. 1980) (the Government not
`required to create exculpatory material that does not exist); United
`States v. Flores, 540 F.2d 432, 438 (9th Cir. 1976) (Brady does not
`create any pretrial discovery privileges not contained in the Federal
`Rules of Criminal Procedure).
`4. The Government Will Comply with Rule 16(a)(1)(F)
`The Government has provided the defendants with the results or
`reports of physical or mental examinations, and of scientific tests or
`experiments, or copies thereof, which are within the possession of the
`Government that have been performed to date, and will continue to provide
`any further such reports that by the exercise of due diligence may become
`known to the attorney for the Government and are material to the
`preparation of the defense or are intended for use by the Government as
`evidence-in-chief at the trial.
`5. The Government Will Comply with Rule 16(a)(1)(G)
`The reports of forensic handwriting examiners have been disclosed
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`to the defense. Because the results were inconclusive, the Government
`does not intend to present them at trial. The Government will provide
`any additional summaries of expert testimony as such evidence is
`identified as the case proceeds to trial, but no later than two weeks
`prior to trial.
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`6. Jencks Material
`
`Production of witness statements is governed by the Jencks Act,
`18 U.S.C. ' 3500, and need occur only after the witness testifies on
`direct examination. United States v. Taylor, 802 F.2d 1108, 1118
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`Response and Opposition to Motions for Discovery,
`Preservation of Evidence and for Further Motions
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`(9th Cir. 1986); United States v. Mills, 641 F.2d 785, 790 (9th Cir.),
`cert. denied, 454 U.S. 902 (1981). Indeed, even material believed to
`be exculpatory and therefore subject to disclosure under the Brady
`doctrine, if contained in a witness statement subject to the Jencks Act,
`need not be revealed until such time as the witness statement is
`disclosed under the Act. See United States v. Bernard, 623 F.2d 551,
`556 (9th Cir. 1979).
`
`As a practical matter, the government has disclosed the reports of
`FBI investigation, so advance Jencks material (with the exception of
`transcripts of grand jury testimony) has already been provided.
`Prior Similar Act Evidence
`7.
` The government has disclosed the evidence currently in its
`possession that might be argued to be admissible under Rule 404(b)
`relating to the purchase and use of other hijacked netblocks by the
`defendants in addition to those affirmatively charged in Counts 6-10 of
`the Indictment. All these events occurred during the period of the
`conspiracy alleged in the indictment.
` The purchase and use of other hijacked netblocks and the submission
`of other fraudulent LOAs by the defendants during the period of the
`conspiracy are considered to be uncharged overt acts. It has long been
`held that overt acts not specifically named in the indictment are
`nonetheless admissible. Houston v. United States, 217 F. 852 (9th Cir.
`1914).
` In United States v. Soliman, 813 F. 2d 277, 279 (9th Cir.1987), the
`court held that a summary chart of 102 fraudulent insurance claims was
`admissible at the defendant’s trial for three counts of mail fraud, in
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`Response and Opposition to Motions for Discovery,
`Preservation of Evidence and for Further Motions
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`the face of a defense challenge that they were “other crimes” evidence
`under Rule 404(b) of the Federal Rules of Evidence.. The court noted
`that “evidence should not be treated as ‘other crimes’ evidence when
`‘the evidence concerning the other act and the evidence concerning the
`crime charged are inextricably intertwined.” In Soliman, the other
`events were direct evidence of the scheme to defraud in the mail fraud
`counts. In this case, the evidence of the purchase and use of other
`hijacked netblocks and fraudulent LOAs is direct evidence of the
`conspiracy to illegally use the purloined netblocks to send spam, as
`charged in the Indictment, and is inextricably intertwined with
`transactions alleged in the indictment.
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`8.
`Henthorn Material
`The government will conduct a review of the personnel files of the
`federal agents involved in the case, and any impeachment material falling
`within the purview of United States v. Henthorn, 931 F.2d 29 (9th Cir.
`1991) will be disclosed.
`9. Impeachment Information
`The defendants request various categories of impeachment evidence:
`bias or motive to lie, evidence of criminal investigation or convictions,
`and evidence affecting perception. The government has disclosed
`evidence currently in its possession that falls into these categories,
`but this disclosure is not yet complete.
`The government will disclose such evidence in compliance with its
`continuing obligations under Brady v. Maryland, 373 U.S. 83 (1963) and
`Giglio v. United States, 405 U.S. 150 (1972), no later than one week
`before trial, when the witnesses for trial have been identified.
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`Response and Opposition to Motions for Discovery,
`Preservation of Evidence and for Further Motions
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`10. Witness Names and Addresses
`There is no requirement in a non-capital case for the Government
`to supply the defense with a list of witnesses it expects to call at
`trial. United States v. Thompson, 493 F. 2d 305, 309 (9th Cir. 1974),
`cert. denied, 419 U.S. 835 (1974). As a practical matter, however, the
`defendants have been provided with the agents’ reports, which generally
`provide the names and addresses of the known witnesses to date.
`
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`11. Informants and Cooperating Witnesses
`
`Two cooperating witnesses (Dye and Tarney) assisted in the
`investigation of this case. Both are represented by counsel. The
`defense requests nine specific categories of information relating to the
`potential impeachment of these witnesses, many of which are extremely
`fact-specific, as well as statements made by the witnesses’ attorneys
`during plea negotiations, and AUSA notes.
`The Government is aware of its constitutional obligations under
`Brady, Giglio, and their progeny, and will comply with them. With
`respect to the defendants’ request for statements made by the witnesses’
`attorneys and for AUSA notes, the Government objects.
`a. Statements by Witnesses’ Attorneys and AUSA Notes
`The Government has already provided the defendants with the FBI
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`reports of proffers and other statements made by its cooperating
`witnesses, even though such reports are likely covered under the Jencks
`Act and are required to be disclosed only after the witness has
`testified. The Government will also disclose to the defendants any
`agreements with the prospective witnesses, and any impeachment material.
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`Response and Opposition to Motions for Discovery,
`Preservation of Evidence and for Further Motions
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`With respect to the defendants’ blanket request for statements made
`by the witnesses’ counsel, and for AUSA notes, such material is not
`discoverable unless it is exculpatory or impeaching. If the Government
`becomes aware of any such information, it will disclose it. A
`defendant’s mere speculation that such material may contain helpful
`information is not enough to trigger disclosure. See United States v.
`Croft, 124 F.3d 1109, 1124 (9th Cir. 1997) (defendants’ request for notes
`of meetings between government agents and cooperating witnesses properly
`denied where request based solely on assumption they might be helpful);
`United States v. Henke, 222 F. 3d 633, 642 (9th Cir. 2000) (defendants’
`request for notes of interviews with witness properly denied where
`defendants “made no showing that they might discover something
`exculpatory or impeaching”); United States v. McVeigh, 954 F. Supp. 1454
`(D. Colo. 1997) (Government counsel’s notes of preparatory interview
`with witness not discoverable absent evidence that government counsel
`did anything impermissible to influence witness’s statement).
`
`On the other hand, when it is undisputed that the information exists
`and is, in fact, impeaching, the Ninth Circuit has regularly upheld a
`defendant’s right to obtain notes which contain inconsistent statements
`or conclusions of a witness. See Paradis v. Arave, 130 F. 3d 385,391
`(9th Cir. 1997)(Brady requires disclosures where notes contradict
`witness’s testimony); United States v. Service Deli, Inc., 151 F.3d
`938,942-43 (9th Cir. 1998)(same).
`
`The impeaching quality of the information must be very clear in
`order for it to be consider “material” under Brady. In United States
`v. Antonakeas, 255 F. 3d 714, 725-26 (9th Cir. 2001), the Ninth Circuit
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`Response and Opposition to Motions for Discovery,
`Preservation of Evidence and for Further Motions
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`rejected the defendant’s claim that the Government was required to
`disclose a DEA report summarizing a witness’s statement during six months
`of plea negotiations. The defendant claimed that the witness’s initial
`failure to implicate him constituted Brady material because it
`contradicted the witness’s later trial testimony. The Ninth Circuit
`affirmed the conviction, and upheld the District Court’s finding that
`the report was “devoid of any material or exculpatory content, but rather
`merely reveals a witness (Sergio) cooperating with the government in an
`increasing manner.”
`Statements made by a witness’s attorney can be discoverable only
`under very limited circumstances. For example, in Spicer v. Roxbury
`Correctional Institute, 194 F.3d 547, 557 (4th Cir. 1999), the Court
`required the prosecutor to disclose that he had been told by the
`witness’s attorney that the witness had made a statement which was
`materially inconsistent with the statement made to the prosecutor which
`bore directly on the defendant’s guilt -- whether the witness had seen
`the defendant fleeing on the day of the crime. The Fourth Circuit went
`to great lengths to explain that its holding was limited:
`
`We do not hold that the prosecutor is obligated under Brady
`to seek out or to uncover inconsistencies in the version of
`events that a witness presents to his own attorney in
`preparation for plea negations. The prosecution cannot be
`responsible for procuring exculpatory material that flows in
`private discussions from a witness to his attorney. Nor do
`we hold that the prosecution is obligated to disclose
`potentially exculpatory material contained in the back-and-
`forth hypothesizing that commonly occurs during plea
`negotiations between the prosecution and defense attorneys.
`But when the prosecutor receives information that he, as an
`objectively reasonable prosecutor, should recognize as
`exculpatory or of impeachment value, he is under a duty to
`disclose it to the defendant if it is material.
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`Id. at 565. (emphasis added).
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`As clearly demonstrated by the decisions of the Ninth Circuit and
`other federal courts, the Government is required to disclose only that
`information which is material and impeaching, not a myriad of generalized
`discussions among the prosecutor, the investigating agent, the witness
`and his attorney, which the defendants speculate may contain
`discoverable material.2 The Government will provide defendants with all
`of the information constitutionally required to be disclosed to ensure
`a fair trial. Accordingly, this request should be denied.
`b. Identity of Informants
`The defendants further seek disclosure of the names and addresses
`
`of informants. The defense has been provided with reports of the
`statements of an individual who was a source of information about the
`offenses at issue, without naming that person. The source was not a
`percipient witness to the offenses, and is not contemplated as a witness
`in the government’s case in chief. “Where the informer is a mere tipster,
`disclosure of his identity will rarely be appropriate under the balancing
`test of Roviaro.” United States v. Lewis, 671, F.2d 1025, 1027 (7th Cir.
`1982).
`In United States v. Gonzalo Beltran, 915 F.2d 487, 488-89 (9th
`Cir.1990), the Ninth Circuit specified three factors that the court
`should consider in deciding whether to order the Government to disclose
`the identity of an informant. Those factors are: (1) the degree of the
`
`2 But see, United States v. Sudikoff, 36 F.Supp.2d 1196 (C.D. Cal. 1999)(defendant’s
`right to discovery not limited to information that is material, and includes
`“proffer information” from witness’s attorneys). Sudikoff is not binding on this
`court, and “is a significant departure from the Supreme Court’s articulation of the
`prosecutor's constitutional Brady obligations.” United States v. Acosta, 357
`F.Supp.2d 1228, 1243 (D. Nev. 2005).
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`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 non-disclosure. In this
`case, the informant is a tipster with no involvement in the offense.
`The Government’s interest in non-disclosure stems from an interest in
`potentially using this individual as a source for tips on future
`investigations. The burden is on the defense to show that there is a
`relationship between the expected testimony of the informant and the
`defense to be raised at trial. United States v. Johnson, 886 F.2d 1120,
`1122 (9th Cir. 1989). The defense has made no assertion whatsoever that
`the informant’s testimony is relevant to any defense that might be
`mounted. Accordingly, the United States objects to an order requiring
`the disclosure of the name and address of the informant at this time.
`
`12. Notice of Intent to Present Evidence
`
`The defendants request that the government identify the evidence
`it intends to use in its case in chief to allow them the opportunity to
`move to suppress such evidence. The primary evidence that the government
`will use in its case in chief are the items disclosed on November 4,
`2018, consisting of 888 pages containing the 257 grand jury exhibits.
`The exhibits relate to eleven acquisitions of netblocks, which are
`described by netblock number and associated domain names in Grand Jury
`Exhibit 251.
`With respect to each of the hijacked netblocks, the United States
`intends to present the following evidence, among others: (a) records
`identifying the true registrant of the netblock and the associated domain
`name, (b) records relating to the acquisition of the netblock and
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`associated domain by the defendants, including contracts of sale, drafts
`of contracts, invoices, emails, and financial records evidencing the
`transfer of funds; (c) Letters of Authorization (LOAs), drafts of LOAs,
`emails, and other requests to host the hijacked netblocks or portions
`thereof and other representations that the defendants are seeking to use
`or are authorized to use the hijacked netblocks, (d) emails, SWIPS and
`other records indicating that the defendants broke up the hijacked
`netblocks into smaller sub-netblocks for use in sending spam, (e) emails,
`spreadsheets and other internal Company A records (such as Blackmail
`reports) which indicate that the hijacked netblocks were used to send
`commercial emails, (f) spam complaints regarding the hijacked netblocks,
`(g) emails and other records indicating that the hijacked IP ranges had
`been blocked by an ISP or blacklisted by any anti-spam organization
`(such as SpamCop or Spamhaus) due to hijacking or sending spam, (h)
`emails, domain name registration, EarthClass mail post office box
`records, and filings for DBAs and fictitious business names used to
`conceal the identity of the defendants and Company A as the users of the
`hijacked netblocks, (i) internal Company A records indicating the amount
`of money earned from the hijacked netblocks, including tax records,
`spreadsheets, emails and internal calculations, and (j) witness
`testimony concerning the above.
`B. FURTHER MOTIONS
`The Government has no objection to the filing of further motions
`at a date set by the court at the next status date, given the large
`quantity of discovery to review. The Government requests that the court
`not issue an order permitting the filing of an unlimited number of
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`additional motions at any future date, but instead requests that the
`court review each request for further motions on its own merit.
`C. PRESERVATION OF EVIDENCE
`The government has no objection to preserving the physical evidence
`seized in this case, and has directed the agents to do so.
`III
` CONCLUSION
`On the basis of the foregoing, the Government respectfully requests
`that Defendants’ Motions for Discovery, for Further Motions and For
`Preservation of Evidence be denied, to the extent that they are opposed
`by the Government.
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`DATED: January 11, 2019
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`Respectfully submitted,
`ADAM L. BRAVERMAN
`United States Attorney
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` s/Melanie K. Pierson
`MELANE K. PIERSON
`Assistant U.S. Attorney
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`UNITED STATES DISTRICT COURT
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`SOUTHERN DISTRICT OF CALIFORNIA
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`UNITED STATES OF AMERICA, )
` )
`Plaintiff,
`)
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`JACOB BYCHAK (1),
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`MARK MANOOGIAN (2),