Case 3:18-cr-04683-GPC Document 356-1 Filed 03/24/22 PageID.4993 Page 1 of 8
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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 Goodrich, BBO 692624 (Pro Hac)
`Los Angeles, CA 90067
`Ryan Dougherty, BBO 703380 (Pro Hac)
`Telephone: (310) 201-2100
`1 Financial Center
`Email: glincenberg@birdmarella.com
`Boston, MA 02111
` nvandyk@birdmarella.com
`djgoodrich@mintz.com
` dpatrick@birdmarella.com
`rtdougherty@mintz.com
` awiseley@birdmarella.com
`
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`Attorneys for Mark Manoogian
`Attorneys for Petr Pacas
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`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
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` jriddet@bklwlaw.com
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` wbernstein@bklwlaw.com
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` cnevarez@bklwlaw.com
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`Attorneys for Jacob Bychak
`Attorneys for Mohammed Abdul Qayyum
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`Case No. 18-CR-4683-GPC
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`DEFENDANTS' MOTION IN LIMINE NO. 5
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`Case 3:18-cr-04683-GPC Document 356-1 Filed 03/24/22 PageID.4994 Page 2 of 8
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF CALIFORNIA
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`Plaintiff,
`
`UNITED STATES OF AMERICA,
`
`
`
`v.
`
`JACOB BYCHAK, et al.,
`
` Defendants.
`
`
`Case No. 18-CR-4683-GPC
`Honorable Gonzalo P. Curiel
`
`DEFENDANTS’ MOTION IN
`LIMINE NO. 5
`
`TO PRECLUDE THE
`GOVERNMENT FROM FRAMING
`ITS EVIDENCE AND ARGUMENT
`TO SUGGEST THAT THE USE OF
`DBAs, P.O. BOXES, AND EMAIL
`ADDRESSES UNDER DIFFERENT
`NAMES IS ILLEGAL CONDUCT,
`AND FOR A CLARIFYING
`INSTRUCTION
`
`[Declaration of Gary S. Lincenberg and
`accompanying exhibits filed
`concurrently herewith under seal]
`
`
`Date: April 7, 2022
`Time: 1:00 p.m.
`Dept.: 2D
`
`
`
`DEFENDANTS' MOTION IN LIMINE NO. 5
`
`Case No. 18-CR-4683-GPC
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`

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`Case 3:18-cr-04683-GPC Document 356-1 Filed 03/24/22 PageID.4995 Page 3 of 8
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`I.
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`MEMORANDUM OF POINTS AND AUTHORITIES
`
`BACKGROUND
`Defendants Jacob Bychak, Mark Manoogian, Mohammed Abdul Qayyum,
`and Petr Pacas (collectively, “Defendants”) bring this Motion in Limine for an order
`precluding the government from framing its evidence and argument in a way that
`suggests that the use of DBAs, post office boxes, and email addresses under
`different names constituted illegal conduct (the “Motion”).
`The government charges Defendants with “conceal[ing] their use of the IP
`addresses to send ‘spam’ emails by using business names, post office boxes, and
`email addresses under different names.” ECF No. 1 (Indictment), ¶ 8. To support
`this allegation, Defendants anticipate that the government will introduce evidence
`showing that Company A formed subsidiaries, for which multiple DBAs were
`registered and used by Company A and Company B employees. See, e.g., Ex. 1 (GJ
`Ex. 55); Ex. 2 (GJ Ex. 276).1 The government contends that such evidence
`“indicates [Defendants] knew their behavior was prohibited.” ECF 176 (Gov’t
`Opp’n to Defs’ Mot. to Dismiss) at 37.
`In a meet and confer, the government conceded that the use of DBAs, post
`office boxes, and email addresses under different names are lawful and common
`business practices.2 See Lincenberg Decl. ¶ 2. The government nevertheless wishes
`to present this evidence at trial. So long as the jury is instructed as to the former,
`Defendants do not object to the latter. In other words, the government should not be
`permitted to frame the evidence in a way that suggests that the use of DBAs, post
`
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`1 Referenced exhibits are attached to the Under Seal Declaration of Gary S.
`Lincenberg, submitted herewith (cited herein as the “Lincenberg Decl.”).
`2 As explained herein, the government has likewise acknowledged that Company
`A and Company B, and their employees, used DBAs, post office boxes, and email
`addresses under different names for lawful purposes, such as to cope with abusive
`tactics by anti-spam organizations, such as Spamhaus.
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`1
`DEFENDANTS' MOTION IN LIMINE NO. 5
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`Case No. 18-CR-4683-GPC
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`office boxes, and email addresses under different names constituted illicit conduct.
`And, to avoid confusion and unfair prejudice, the Court should instruct the jury that
`the mere use of DBAs, post office boxes, and email addresses under different names
`are lawful and common business practices.
`II. ARGUMENT
`A. The Court Should Preclude the Government from Suggesting that
`the use of DBAs, Post Office Boxes, and Email Addresses Under
`Different Names is Unlawful.3
`Defendants anticipate that the government will introduce evidence that
`Defendants used “business names post office boxes, and email addresses under
`different names,” and argue that they implemented these measures in order to
`“conceal” their use of the at-issue netblocks. ECF No. 1, ¶ 8. Indeed, the
`government presented evidence to the grand jury showing that Company A formed
`subsidiaries, for which multiple DBAs were registered and used by Company A
`employees. See, e.g., Exs. 1 & 2.
`But there is nothing inherently improper about the use of DBAs. Rather,
`using a DBA is a common and legitimate business practice. And, California,
`Delaware and Wyoming—the states where most, if not all, of the at-issue DBAs
`were registered—recognize as much. See Cal. Bus. & Prof. Code § 17900(b)(3)
`(permitting a corporation to operate under “any name other than the corporate name
`stated in its articles of incorporation”); 6 Del. C. § 3101 (permitting registration of
`“trade names”); Wyo. Stat. § 40-2-101(a)(iv) (permitting registration of “trade
`
`
`3
`In the course of litigating this case, the government has also suggested that
`practices other than DBAs, post office boxes and email addresses were used for
`concealment purposes. See, e.g., ECF No. 51 at 9-10 (“[D]efendants utilized …
`domain names to conceal their identity as the senders of spam.”) (emphasis added).
`For simplicity, Defendants refer only to DBAs, post office boxes, and email
`addresses in this Motion, but reserve the right to object to the government’s framing
`of any other legitimate business practice as illicit at trial.
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`2
`DEFENDANTS' MOTION IN LIMINE NO. 5
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`Case No. 18-CR-4683-GPC
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`names”).4 Nor is there anything improper about using post office boxes and email
`addresses under different names, because DBAs may be used by a company “for all
`business purposes.” Savea v. YRC Inc., 34 Cal. App. 5th 173, 179 (2019)
`(explaining that when a “corporation elects to [use a fictitious business name], it has
`… adopted that name for all business purposes”) (emphasis added); see also In re
`Advanced Mktg. Servs., Inc., 448 B.R. 321, 326 n.21 (Bankr. D. Del. 2011) (same).
`Moreover, the evidence in this case tends to show that Company A and
`Company B implemented these practices for a lawful purpose, rather than to conceal
`Defendants’ allegedly improper acquisition of the at-issue netblocks. More
`specifically, the companies adopted these practices to cope with aggressive tactics
`used by Spamhaus, and to protect the companies from being erroneously dubbed by
`Spamhaus as a “spammer,” which would (and did) have tremendous business
`consequences for the companies.5 Not only has the government acknowledged that
`Spamhaus “goes well beyond what is criminally prohibited under the CAN-SPAM
`Act,”6 but it has also acknowledged that Defendants utilized these business practices
`for the very purpose of defending against Spamhaus. See, e.g., ECF No. 51 (Gov’t
`Opp’n to Defs’ Request for Bill of Particulars), at 10 (“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
`
`
`4 DBAs and “trade names” and “fictitious names” are used interchangeably.
`5 See, e.g., Aug. 25, 2017 Grand Jury Testimony of Kevin Wolf at 52:4-13 (“Q. …
`Why would you have to stay under the radar from SpamHaus if you’re CAN-SPAM
`compliant? A. CAN-SPAM and flying under the radar of SpamHaus are completely
`different things … [Y]ou don’t want to be on SpamHaus because all they’re going to
`do is list everything and say, ‘You guys are spammers,’ and then we’d have no
`more business.”) (Emphasis added).
`6 ECF No. 334 (Gov’t Opp’n to Defs’ Mot. to Dismiss), at 10 (citing Spamhaus
`Position on CAN-SPAM Act of 2003, SPAMHAUS, www.spamhaus.org/organization/
`statement/005/spamhaus-position-on-can-spam-actof-2003).
`
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`3
`DEFENDANTS' MOTION IN LIMINE NO. 5
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`Case No. 18-CR-4683-GPC
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`addresses used, and create new DBAs and email address to control these new
`domain names.”) (emphasis added).
`Recognizing this, on March 22, 2022, the government represented to
`Defendants during a meet and confer that it does not contend that the use of DBAs,
`post office boxes and email addresses under different names is unlawful. See
`Lincenberg Decl. ¶ 2; see also Jan. 25, 2019 H’rg Tr. 11:16-18 (“MS. PIERSON: …
`We are not talking about the broader practices of the company, here. We are just
`talking about the [domain names and DBAs] relate[d] to the hijacked netblocks.”).
`Accordingly, Defendants request that the Court hold the government to its
`representations by precluding the government from framing its evidence and
`argument in a way that suggests that the use of DBAs, post office boxes, and email
`addresses under different names is illicit conduct.
`The Court Should Instruct the Jury that the Use of DBAs, Post
`B.
`Office Boxes, and Email Addresses Under Different Names is
`Lawful.
`Under Rule 403, the Court “has wide latitude” to determine whether to admit
`evidence that may confuse the issues at trial. United States v. Hitt, 981 F.2d 422,
`424 (9th Cir. 1992); see also Fed. R. Evid. 403 (permitting the court to exclude
`relevant evidence “if its probative value is substantially outweighed by a danger of
`… confusing the issues”). Here, because Company A’s use of DBAs, post office
`boxes, and email addresses under different names is a common and legitimate
`business practice, evidence of this practice is likely to confuse the issues in this case.
`“Any risk of jury confusion can be mitigated with proper instructions.” See
`Terry v. City of San Diego, No. 06-CV-1459 MMA CAB, 2011 WL 1897491, at *3
`(S.D. Cal. May 18, 2011). Such an instruction is of particular import here to ensure
`that the jury does not confuse legitimate business practices with evidence of guilt.
`See United States v. Marr, No. 14-CR-00580-PJH, 2017 WL 1540815, at *22 (N.D.
`Cal. Apr. 28, 2017), aff'd sub nom. United States v. Sanchez, 760 F. App’x 533 (9th
`Case No. 18-CR-4683-GPC
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`DEFENDANTS' MOTION IN LIMINE NO. 5
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`Case 3:18-cr-04683-GPC Document 356-1 Filed 03/24/22 PageID.4999 Page 7 of 8
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`Cir. 2019) (“If the government will argue that participation in the secondary rounds
`was illegal as part of the alleged conspiracy, the court would be inclined to give an
`instruction to clarify that the rounds were not illegal activities in and of
`themselves”); United States v. Lui, 941 F.2d 844, 848 (9th Cir. 1991) (finding
`district court improperly declined to provide a clarifying instruction when it
`permitted the government to present “items that were perfectly innocent” and “turn[]
`them into evidence of guilt”).
`III. CONCLUSION
`For the foregoing reasons, Defendants respectfully request that the Court
`preclude the government from framing its evidence and argument in a way that
`suggests that the use of DBAs, post office boxes, and email addresses under
`different names is illicit conduct indicative of guilt. To avoid confusion and unfair
`prejudice, Defendants further request that the Court instruct the jury that the mere
`use of DBAs, post office boxes, and email addresses under different names are
`lawful and common business practices.
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`Dated: March 24, 2022
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`Dated: March 24, 2022
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`Respectfully submitted,
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` BIRD, MARELLA, BOXER, WOLPERT,
`NESSIM, DROOKS, LINCENBERG &
`RHOW, P.C.
` By: s/ Gary S. Lincenberg
`Gary S. Lincenberg
`Nicole Rodriguez Van Dyk
`Darren L. Patrick
`Alexis A. Wiseley
`Attorneys for Petr Pacas
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` WIECHERT, MUNK & GOLDSTEIN, PC
` By: s/ Jessica C. Munk
`Jessica C. Munk
`David W. Wiechert
`Attorneys for Jacob Bychak
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`DEFENDANTS' MOTION IN LIMINE NO. 5
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`Case No. 18-CR-4683-GPC
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`Case 3:18-cr-04683-GPC Document 356-1 Filed 03/24/22 PageID.5000 Page 8 of 8
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`Dated: March 24, 2022
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`Dated: March 24, 2022
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` BIENERT KATZMAN
`LITTRELL WILLIAMS LLP
` By: s/ Whitney Z. Bernstein
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`Whitney Z. Bernstein
`Thomas H. Bienert, Jr.
`James D. Riddet
`Carlos A. Nevarez
`Attorneys for Mohammed Abdul Qayyum
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` MINTZ, LEVIN, COHN, FERRIS,
`GLOVSKY AND POPEO, P.C.
` By: s/ Randy K. Jones
`Randy K. Jones
`Daniel J. Goodrich (Pro Hac)
`Ryan Dougherty (Pro Hac)
`Attorneys for Mark Manoogian
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`CERTIFICATION OF AUTHORIZATION TO SIGN SIGNATURE
`The undersigned counsel of record for Defendant Petr Pacas certifies that the
`content of this document is acceptable to each of the Defendants’ counsel whose
`electronic signature appears thereon, and that I have obtained their authorization to
`sign this document on their behalf.
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`s/ Alexis A. Wiseley
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`Alexis A. Wiseley
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`DEFENDANTS' MOTION IN LIMINE NO. 5
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`Case No. 18-CR-4683-GPC
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