Case 3:18-cr-04683-GPC Document 354-2 Filed 03/24/22 PageID.4949 Page 1 of 5
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`WIECHERT, MUNK & GOLDSTEIN, PC
`David W. Wiechert, SBN 94607
`Jessica C. Munk, SBN 238832
`Jahnavi Goldstein, SBN 245084
`27136 Paseo Espada, Suite B1123
`San Juan Capistrano, CA 92675
`Telephone: (949) 361-2822
`Email: dwiechert@wmgattorneys.com
` jessica@wmgattorneys.com
` jahnavi@wmgattorneys.com
`Attorneys for Jacob Bychak
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`IN THE UNITED STATES DISTRICT COURT
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`FOR THE SOUTHERN DISTRICT OF CALIFORNIA
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`Plaintiff,
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`UNITED STATES OF AMERICA,
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`v.
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`JACOB BYCHAK, et al.,
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` Defendants.
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`Case No. 18-CR-4683-GPC
`Honorable Gonzalo P. Curiel
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`DECLARATION OF JESSICA C. MUNK
`AND EXHIBITS A-F IN SUPPORT OF
`DEFENDANTS’ MOTION IN LIMINE
`TO LIMIT THE GOVERNMENT’S
`CASE IN CHIEF EVIDENCE TO
`ELEVEN IDENTIFIED NETBLOCKS
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`Hearing Date: April 7, 2022
`Hearing Time: 1:00 p.m.
`Department: Courtroom 2D
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`DECLARATION OF JESSICA C. MUNK
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`I, Jessica C. Munk, declare as follows:
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`1. I am a principal at the law firm Wiechert, Munk & Goldstein, PC, attorneys of
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`record for defendant Jacob Bychak. I am licensed to practice in the State of California and
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`in the United States District Court for the Southern District of California. I have personal
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`knowledge of the following, and if called to do so, I could competently testify thereto.
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`Case 3:18-cr-04683-GPC Document 354-2 Filed 03/24/22 PageID.4950 Page 2 of 5
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`2. Attached hereto as Exhibit A is a true and correct copy of Grand Jury Exhibit
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`251 as produced by the government in discovery bearing Bates range ADCONION-GJ-
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`EXS-00874, which lists the Eleven Netblocks.
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`3. Attached hereto as Exhibit B is a true and correct copy of relevant portions of
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`the Transcript of the Report of Proceeding from the January 25, 2019 hearing on various
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`motions, including Defendants’ Motion for Bill of Particulars.
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`4. Attached hereto as Exhibit C is a true and correct copy of the letter that defense
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`counsel sent to the government on January 28, 2019, which outlined Defendants’
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`understanding of the aspects of the Motion for Bill of Particulars that had been settled in
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`preparation for the parties meet and confer.
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`5. Attached hereto as Exhibit D is a true and correct copy of the letter from the
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`government to defense counsel dated January 30, 2019 in response to the defense’s
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`January 28, 2019 letter.
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`6. Attached hereto as Exhibit E is a true and correct copy of a document identified
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`by the government in its January 30, 2019 letter and produced by the government in
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`discovery as Bates range AMOBEE083702. Because the document was produced in a
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`native .txt file, the Bates range does not appear on the pdf of the document.
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`7. Defense counsel and the government, i.e. the parties, telephonically met and
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`conferred on January 30, 2019 pursuant to the Court’s order and discussed the matters
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`memorialized in the letters attached as Exhibits D and E and other matters.
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`8. Attached hereto as Exhibit F is a true and correct copy of the letter that defense
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`counsel sent to the government on February 4, 2019 after the parties met and conferred on
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`January 30, 2019 regarding the bill of particulars issues. This letter memorializes what the
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`government represented to the defense during the January 30, 2019 meet and confer.
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`9. The government did not respond to the defense’s February 4, 2019 letter or
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`advise that the defense’s understanding was incorrect.
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`10. On August 30, 2021, I emailed the government and noted that its voluminous
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`discovery included netblocks and LOAs outside of the Eleven Netblocks (or even the 2(a)
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`Case 3:18-cr-04683-GPC Document 354-2 Filed 03/24/22 PageID.4951 Page 3 of 5
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`netblocks), which was beyond the scope of the government’s representation in early 2019
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`that the criminal allegations in this case were limited to the Eleven Netblocks. In that
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`email, I requested that the government stipulate to what it had previously represented and
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`what the defense had reasonably relied upon, specifically that:
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`1. The only alleged hijacked netblocks in play in this case are the 11 netblocks
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`identified in GJ Ex. 251 (with the exception of the list in AMOBEE0083702,
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`which only falls under 2(a)), and the government will not introduce any
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`evidence of other alleged hijacked netblocks. Further, the government is only
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`introducing LOAs for these 11 netblocks in GJ Ex. 251 and will not be
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`introducing evidence of any other alleged fraudulent LOAs.
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`2. The DBAs, post office boxes, email addresses and domain names
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`(collectively referred to as “dbas”) used to allegedly conceal the Defendants’
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`identity as referenced in Paragraph 8 of the Indictment, are the dbas used
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`with the alleged 11 hijacked netblocks and the only ones that are allegedly
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`illegal. The government will not allege any other use of dbas, not used for
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`these alleged 11 hijacked netblocks are illegal. Thus, the general use of dbas
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`is not illegal.
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`3. The only commercial emails sent by Adconion that the government alleges
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`are illegal are the emails sent from the alleged 11 hijacked netblocks and the
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`government will not take the position that commercial email, i.e. “spam”
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`email is illegal.
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`11. On August 31, 2021, the government responded to my email that it would not
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`agree to a stipulation, arguing that its prior representations did not limit what evidence it
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`could put on and that because the Indictment charged a conspiracy and scheme to defraud
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`that the government could put on any evidence it chose “relative to the agreement and the
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`scheme.” Yet in that same email, confusingly, the government stated that its case-in-chief
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`“evidence will, consistent with our representations regarding which netblocks are covered
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`by the indictment…, focus on the netblocks identified in GJ Ex. 251.”
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`12. On March 4, 2022, I emailed the government and requested that they
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`reconsider its refusal to stipulate, making it clear that Defendants were not seeking a
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`stipulation to limit all evidence, such as cross or rebuttal evidence, but only the
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`government’s case in chief evidence to that relating to the Eleven Netblocks (or even
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`additionally the 2(a) netblocks) – which is exactly what the government had suggested it
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`would do in its prior email.
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`13. On March 5, 2022, the government responded and expressed confusion at the
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`defense’s agreement to include the 2(a) netblocks (AMOBEE0083702) in the stipulation.
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`I clarified that the defense was also open to the government stipulating to exclude
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`evidence relating to that document.
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`14. On March 8, 2022, the government declined to reconsider its prior decision not
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`to stipulate to limit its evidence in its case in chief as requested.
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`15. After receiving the government’s Rule 404(b) notice, the defense reached out
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`to the government to meet and confer on this issue to try and come to an agreement to
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`avoid the filing of unnecessary motions in limine.
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`16. On March 22, 2022, the parties met and conferred and again the defense asked
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`the government to stipulate that they would not raise evidence of any other alleged
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`hijacked netblocks in its case in chief beyond the Eleven Netblocks in GJ Ex. 251 apart
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`from what it identified in the government’s Rule 404(b) notice and requested an answer
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`the following day. The defense made clear to the government that it would file a separate
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`motion to challenge the netblocks identified in the government’s Rule 404(b) notice (Dkt.
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`347). Again, the government refused to stipulate.
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`17. This is a complex case with voluminous discovery. To date the government has
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`produced over 2,326,863 pages of discovery.
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`18. The defense has relied on the government’s repeated representations that this
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`case is about the Eleven Netblocks, and has focused its review of the discovery and
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`defense strategies that relate to these Eleven Netblocks. There are numerous spreadsheets
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`in discovery with countless additional netblocks and domains listed that the defense has
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`Case 3:18-cr-04683-GPC Document 354-2 Filed 03/24/22 PageID.4953 Page 5 of 5
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`not focused on given the government’s repeated representations that this case is about the
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`Eleven Netblocks.
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`19. Aside from the Eleven Netblocks and 2(a) netblocks, the government has never
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`provided a list of all other netblocks in the discovery, or an index demonstrating what
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`discovery numbers related to what netblocks. Just considering the size and scope of
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`Company A and B’s business and the time period set forth within the Indictment, there
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`could be thousands of additional netblocks. Moreover, there are several spreadsheets in
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`the discovery that include reference to approximately 30 to 100 additional netblocks and
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`domain names beyond the Eleven Netblocks that the government has never alleged were
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`illegally hijacked and fall under the charges in the Indictment.
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`20. If the defense is forced to prepare for trial to defend additional netblocks such
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`as these that the government has never identified fall under the allegations in the
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`Indictment, this would be a huge undertaking. For example, the number of documents in
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`the discovery for most of the Eleven Netblocks returns, on average, more than one
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`thousand documents.
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`I declare under the penalty of perjury that the foregoing is true and correct.
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`Executed on March 24, 2022 in San Juan Capistrano, California.
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`Jessica C. Munk
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