Case 3:18-cr-04683-GPC Document 354-4 Filed 03/24/22 PageID.4956 Page 1 of 9
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`EXHIBIT B
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`EXHIBIT B
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`Case 3:18-cr-04683-GPC Document 54 Filed 01/30/19 PageID.182 Page 1 of 23Case 3:18-cr-04683-GPC Document 354-4 Filed 03/24/22 PageID.4957 Page 2 of 9
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`18-cr-4683-GPC
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`UNITED STATES DISTRICT COURT
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`FOR THE SOUTHERN DISTRICT OF CALIFORNIA
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` v.
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`UNITED STATES OF AMERICA, .
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`Plaintiff, . No. 18-cr-4683-GPC
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`. January 25, 2019
`. 10:44 a.m.
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`JACOB BYCHAK,
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`MARK MANOOGIAN,
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`MOHAMMED ABDUL QAYYUM,
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`PETR PACAS,
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`Defendants.
`. San Diego, California
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`TRANSCRIPT OF MOTION HEARING/TRIAL SETTING
`BEFORE THE HONORABLE GONZALO P. CURIEL
`UNITED STATES DISTRICT JUDGE
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`APPEARANCES:
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`For the Plaintiff:
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`For the Defendant
`JACOB BYCHAK:
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`For the Defendant
`MARK MANOOGIAN:
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`United States Attorney's Office
`By: MELANIE K. PIERSON, ESQ.
` SABRINA FEVE, ESQ.
`880 Front Street, Room 6293
`San Diego, California 92101
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`Law Office of David W. Wiechert
`By: JESSICA C. MUNK, ESQ.
` DAVID W. WIECHERT, ESQ.
`115 Avenida Miramar
`San Clemente, California 92672
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`Mintz Levin
`By: RANDY K. JONES, ESQ.
`3580 Carmel Mountain Road, Suite 300
`San Diego, California 92130
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`///
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`Case 3:18-cr-04683-GPC Document 54 Filed 01/30/19 PageID.183 Page 2 of 23Case 3:18-cr-04683-GPC Document 354-4 Filed 03/24/22 PageID.4958 Page 3 of 9
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`18-cr-4683-GPC
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`APPEARANCES (CONTINUED):
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`For the Defendant
`MOHAMMED ABDUL
`QAYYUM:
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`For the Defendant
`PETR PACAS:
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`Bienert, Miller & Katzman, P.L.C.
`By: WHITNEY Z. BERNSTEIN, ESQ.
` JAMES D. RIDDET, ESQ.
`903 Calle Amanecer, Suite 350
`San Clemente, California 92673
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`Bird Marella Boxer Wolpert
` Nessim Drooks & Lincenberg
`By: NAEUN RIM, ESQ.
`1875 Century Park East
`Suite 2300
`Los Angeles, California 90067
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`Court Reporter:
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`Chari L. Bowery, RPR, CRR
`USDC Clerk's Office
`333 West Broadway, Suite 420
`San Diego, California 92101
`chari_bowery@casd.uscourts.gov
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`Reported by Stenotype, Transcribed by Computer
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`Case 3:18-cr-04683-GPC Document 54 Filed 01/30/19 PageID.191 Page 10 of 23Case 3:18-cr-04683-GPC Document 354-4 Filed 03/24/22 PageID.4959 Page 4 of 9
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`18-cr-4683-GPC
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`voluminous -- there would be sufficient information provided to
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`the defense regarding the particulars of how this crime was
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`allegedly committed, what it involved, and different pieces of
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`evidence that the government intends to offer at trial.
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`But to the extent there's something that I am missing, let
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`me hear from defense counsel.
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`MS. MUNK: Thank you, Your Honor. I do want to
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`address a couple of areas.
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`The government did, in their opposition, identify that it
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`was limiting the alleged hijacked IP netblocks and the
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`associated letters of authority to 11 IP netblocks, which were
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`identified in their Exhibit 251. So that was helpful. But
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`some of these other areas that we have requested, there's a
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`problem where we would need particulars.
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`With our number five request, it was the dba's and domain
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`names that were allegedly used to conceal the defendants'
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`identity. The government doesn't specify what dba or domain
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`names it views as illegal. And when you look at the
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`indictment, paragraph 8 addresses this, under the wire fraud
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`counts. We don't know if the government is alleging the dba's
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`and domain names used with the alleged hijacked netblocks were
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`fraudulent, or if the government is alleging a broader theory,
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`that the company's use of just using domain names and dba's, in
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`and of itself, were illegal. So that's one area that the
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`defendants don't have notice of.
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`Case 3:18-cr-04683-GPC Document 54 Filed 01/30/19 PageID.192 Page 11 of 23Case 3:18-cr-04683-GPC Document 354-4 Filed 03/24/22 PageID.4960 Page 5 of 9
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`If the government is alleging the latter, it is
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`essentially attacking the company's entire business model, and
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`this is going to be a much broader case than we would otherwise
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`be required to defend, and we don't have notice of that, Your
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`Honor. So that's one big area.
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`If the government is going to limit the dba's and domain
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`names to the alleged hijacked IP netblocks, we need the
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`government to identify what dba's and domain names it views
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`were fraudulent, because there's no document that we are aware
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`of, from reviewing this, that would point us to that, Your
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`Honor. So that's one big area.
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`THE COURT: Ms. Pierson, do you have a response?
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`MS. PIERSON: My response would be that we do intend
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`to limit this case to just those related to the hijacked
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`netblocks. This case is about those 11 hijacked netblocks, and
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`that's what it is about. We are not talking about the broader
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`practices of the company, here. We are just talking about the
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`ones relate to the hijacked netblocks.
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`THE COURT: Does that address your concern?
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`MS. MUNK: It partially does, Your Honor. It does in
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`that the fact that that lets us know, at least with the dba's
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`and domain names, it is related to the alleged hijacked
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`netblocks, but I don't know if we have a way of knowing which
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`dba's and domain names would have been associated with these
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`netblocks.
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`THE COURT: Ms. Pierson?
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`MS. PIERSON: That information is available to them
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`in the discovery, and their clients are actually in the best
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`position to know of anyone, since their clients were the ones
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`who established the domain names, purchased the domain names,
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`and established the associated IP addresses, all of which are
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`provided to them in the discovery that they have.
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`THE COURT: I am not too sure that the second part of
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`that answer is sufficient.
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`But with respect to the first part, that this information
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`is contained in discovery, do you have a contrary view?
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`MS. MUNK: Your Honor, the company's practice, which
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`we believe is lawful, was to use dba's and domain names to send
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`commercial e-mails. So the government is now limiting the
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`case; that it's only viewing as illegal a very small section, I
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`guess, of e-mails that were sent on these alleged 11 hijacked
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`netblocks. The company used tons of IP netblocks, not just
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`these 11 allegedly hijacked netblocks.
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`So while it's great to know that the government wants to
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`narrow it, I don't know of any particular document -- and maybe
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`the government can point us to that -- that would actually let
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`us know which dba's and domain names would be associated with
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`those netblocks.
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`And maybe I can just also address our second request,
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`because I think that may be somewhat on point, is that with
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`regards to the e-mails and what the government views as -- they
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`use this term "Spam e-mail" -- it was unclear if the government
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`is trying to attack the company, just, sending Spam e-mail and
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`that's illegal, or if the government is narrowing it to e-mail
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`that was sent on these alleged hijacked netblocks.
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`So it sounds like maybe the government is narrowing it to
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`the 11 hijacked netblocks. But just to highlight where our
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`confusion comes in, the government, in their opposition, points
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`to a document called "The Blackmail Reports." And in their
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`opposition, the government says, "The defendant sent as many as
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`81 million commercial e-mails a day using the netblocks at
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`issue."
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`Well, when you actually look at the discovery -- and
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`there's an exhibit, which is Exhibit 203, that they produced --
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`it shows 81 million e-mails were sent on that day, but there's
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`a whole list of IP netblocks, and a very small fraction of this
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`long list are these alleged 11 hijacked ones.
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`THE COURT: So let me ask, as a starting point, have
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`you had this conversation with government counsel regarding
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`this?
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`MS. MUNK: We did not have a chance to discuss this
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`prior to this.
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`THE COURT: Why don't you do that. Because rather
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`than be the medium between you two to address these issues, let
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`me have you exhaust your requests. And then at that point, if
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`you haven't received what you believe you are entitled to, the
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`Court can intervene at that point. But otherwise, I don't
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`think it is the best use of the Court's time to, as a starting
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`point, look into these matters.
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`MS. MUNK: Thank you, Your Honor.
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`Can I briefly address -- we also asked for the government
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`to identify the amount of funds subject to criminal forfeiture.
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`So if I can just briefly address, the government cited
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`Rule 32.2A, the proposition that they are not required to
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`identify the property subject to forfeiture or specify the
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`amount.
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`And that's true, that rule does not require that. But
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`when you look at the notes in the amendments to that rule, it
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`actually says the vehicle for the defense to get this is
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`through a bill of particulars. And there's case law that is
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`cited there, a Fourth Circuit case, that basically said a bill
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`of particulars is the appropriate way for a defendant to know
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`what is subject to forfeiture in the indictment.
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`So I don't know if that's something you want us to try to
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`meet and confer with counsel as well --
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`THE COURT: Let me first inquire of Ms. Pierson, what
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`is your response to that position, that the bill of particulars
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`is the appropriate means of determining what items the
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`government intends to forfeit?
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`MS. PIERSON: That wasn't anything that was addressed
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`THE COURT: Let me do this. Let me direct counsel to
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`meet and confer regarding this. And to the extent that this
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`eight-figure number that has been identified is a product of
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`all the profits and not just related to these 11 netblocks,
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`then ask the government to be more specific in terms of the
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`amounts that they believe are a product of the use of these 11
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`netblocks and the amount that would be subject to forfeitures.
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`address?
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`MS. MUNK: That's all.
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`THE COURT: Are there any outstanding issues to
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`MS. BERNSTEIN: No, Your Honor.
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`THE COURT: From the government?
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`MS. PIERSON: This is, from our point of view --
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`prior to this appearance, I had circulated amongst defense
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`counsel a proposed protective order. It is our standard
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`protective order. The amount of discovery here is voluminous.
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`It also is records relating to individuals who are not the
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`defendants -- the two cooperators -- as well as the company's
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`financial records and all sorts of information that has
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`personal identifying information and other information, which
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`we were providing without redacting under the assumption that
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`it would be protected from disclosure to others. And I sent
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`around our standard protective order.
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`It has not been signed to date. And the defense lawyers
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`today, for the first time outside, advised us that they did not
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