Case 3:18-cr-04683-GPC Document 358-3 Filed 03/24/22 PageID.5057 Page 1 of 52
`
`
`
`
`
`
`
`
`
`
`EXHIBIT A
`
`
`
`
`
`
`
`
`
`
`
`
`EXHIBIT A
`
`
`
`Case 3:18-cr-04683-GPC Document 358-3 Filed 03/24/22 PageID.5058 Page 2 of 52
` 1
`18-cr-4683-GPC
`
` 1
`
` 2
`
` 3
`
`
`
`UNITED STATES DISTRICT COURT
`
`FOR THE SOUTHERN DISTRICT OF CALIFORNIA
`
` 4
`
` 5
`
` 6
`
` 7
`
` 8
`
` 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
` v.
`
`UNITED STATES OF AMERICA, .
` .
`Plaintiff, . No. 18-cr-4683-GPC
`.
`. February 14, 2019
`. 1:00 p.m.
` .
`JACOB BYCHAK,
` .
`MARK MANOOGIAN,
` .
`MOHAMMED ABDUL QAYYUM,
` .
`PETR PACAS,
` .
`Defendants.
`. San Diego, California
`. . . . . . . . . . . . . . . .
`
`
`
`TRANSCRIPT OF MOTION HEARING
`BEFORE THE HONORABLE GONZALO P. CURIEL
`UNITED STATES DISTRICT JUDGE
`
`
`APPEARANCES:
`
`For the Plaintiff:
`
`
`For the Defendant
`JACOB BYCHAK:
`
`
`For the Defendant
`MARK MANOOGIAN:
`
`
`
`
`
`
`
`United States Attorney's Office
`By: MELANIE K. PIERSON, ESQ.
` SABRINA FEVE, ESQ.
`880 Front Street, Room 6293
`San Diego, California 92101
`
`Law Office of David W. Wiechert
`By: JESSICA C. MUNK, ESQ.
`115 Avenida Miramar
`San Clemente, California 92672
`
`Mintz Levin
`By: RANDY K. JONES, ESQ.
`3580 Carmel Mountain Road, Suite 300
`San Diego, California 92130
`
`25
`
`///
`
`
`
`Case 3:18-cr-04683-GPC Document 358-3 Filed 03/24/22 PageID.5059 Page 3 of 52
` 2
`18-cr-4683-GPC
`
` 1
`
`APPEARANCES (CONTINUED):
`
` 2
`
`
`
` 3
`
` 4
`
` 5
`
` 6
`
` 7
`
` 8
`
` 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`For the Defendant
`MOHAMMED ABDUL
`QAYYUM:
`
`
`
`For the Defendant
`PETR PACAS:
`
`Bienert, Miller & Katzman, P.L.C.
`By: WHITNEY Z. BERNSTEIN, ESQ.
`903 Calle Amanecer, Suite 350
`San Clemente, California 92673
`
`Bird Marella Boxer Wolpert
` Nessim Drooks & Lincenberg
`By: NAEUN RIM, ESQ.
`1875 Century Park East
`Suite 2300
`Los Angeles, California 90067
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`21
`
`Court Reporter:
`
`Chari L. Bowery, RPR, CRR
`USDC Clerk's Office
`333 West Broadway, Suite 420
`San Diego, California 92101
`chari_bowery@casd.uscourts.gov
`
`22
`
`23
`
`24
`
`25
`
`
`Reported by Stenotype, Transcribed by Computer
`
`
`
`Case 3:18-cr-04683-GPC Document 358-3 Filed 03/24/22 PageID.5060 Page 4 of 52
` 3
`18-cr-4683-GPC
`
` 1
`
` 2
`
` 3
`
`SAN DIEGO, CALIFORNIA; FEBRUARY 14, 2019; 1:00 P.M.
`
`-o0o-
`
`THE CLERK: Calling Item Number 1 on the calendar,
`
` 4
`
`18-cr-4683, U.S.A. v. Defendant Number 1, Jacob Bychak.
`
` 5
`
`MS. MUNK: Good afternoon, Your Honor. Jessica Munk
`
` 6
`
`on behalf of Jacob Bychak, who -- we filed a waiver of his
`
` 7
`
`appearance, per the Court's order when we were last here, Your
`
` 8
`
`Honor.
`
` 9
`
`10
`
`11
`
`THE COURT: Good afternoon.
`
`THE CLERK: Defendant 2, Mark Manoogian.
`
`MR. JONES: Good afternoon, Your Honor. Randy Jones,
`
`12
`
`on behalf of my client, Mark Manoogian, who has also waived his
`
`13
`
`appearance today.
`
`14
`
`15
`
`16
`
`Qayyum.
`
`THE COURT: Good afternoon.
`
`THE CLERK: Defendant Number 3, Mohammed Abdul
`
`17
`
`MS. BERNSTEIN: Good afternoon, Your Honor. Whitney
`
`18
`
`Bernstein with Bienert, Miller & Katzman, on behalf of Mohammed
`
`19
`
`Abdul Qayyum, who has also waived his appearance.
`
`20
`
`21
`
`THE CLERK: Defendant Number 4, Petr Pacas.
`
`MS. RIM: Good afternoon, Your Honor. Naeun Rim on
`
`22
`
`behalf of Petr Pacas, who has also waived his appearance.
`
`23
`
`24
`
`THE COURT: Good afternoon, defense counsel.
`
`MS. FEVE: Good afternoon, Your Honor. Sabrina Feve
`
`25
`
`and Melanie Pierson for the United States.
`
`
`
`Case 3:18-cr-04683-GPC Document 358-3 Filed 03/24/22 PageID.5061 Page 5 of 52
` 14
`18-cr-4683-GPC
`
` 1
`
`of concern to the Court and it is a cause of concern to the
`
` 2
`
`government.
`
` 3
`
`To the extent that they are saying that they have to speak
`
` 4
`
`with Company A to fulfill their own constitutional duty to
`
` 5
`
`prepare a defense, in that regard, we are much more
`
` 6
`
`sympathetic, and we are willing to engage with and discuss with
`
` 7
`
`them what they believe the prejudice is and why it is they
`
` 8
`
`believe that only Company A can help them and in what form they
`
` 9
`
`need that.
`
`10
`
`I understand that there are going to be times when they
`
`11
`
`don't want to come to us, but at the end of the day, they are
`
`12
`
`going to have to go and retain their own independent experts,
`
`13
`
`understanding that no matter what joint defense agreement they
`
`14
`
`may or may not have, there will likely come a time when their
`
`15
`
`clients' interest is adverse to that of Company A, and they
`
`16
`
`should be in a position where they have an independent expert
`
`17
`
`who is capable of advising them without contemplating the
`
`18
`
`interests of Company A.
`
`19
`
`THE COURT: All right. So it sounds to me like
`
`20
`
`there's a two-step involved here. The first step is with
`
`21
`
`respect to the government showing good cause to withhold the
`
`22
`
`information relating to grand jury exhibits, testimony, FBI
`
`23
`
`reports. And then, in addition, you would provide the Court
`
`24
`
`with information, to the extent that it exists, whether or not
`
`25
`
`there are concerns with respect to representatives of
`
`
`
`Case 3:18-cr-04683-GPC Document 358-3 Filed 03/24/22 PageID.5062 Page 6 of 52
` 15
`18-cr-4683-GPC
`
` 1
`
`Company A, who are themselves targets, so that by having this
`
` 2
`
`very open-ended kind of view of, "Okay, anybody at Company A,"
`
` 3
`
`that that then walks right up to the problem, that it now is
`
` 4
`
`potentially compromising an ongoing investigation.
`
` 5
`
`To the extent that you can show good cause exists, to the
`
` 6
`
`extent that there is some further reason as to why there should
`
` 7
`
`be a limited group of people -- well, not a limited group of
`
` 8
`
`people -- that you provide that information, I would then be
`
` 9
`
`prepared to have this information provided to the defense. And
`
`10
`
`then, based upon their review, argue to the Court that it needs
`
`11
`
`to be reviewed by an identified group of individuals at
`
`12
`
`Company A in order to allow them to prepare the defense.
`
`13
`
`MS. FEVE: Just to provide a record for the Court, in
`
`14
`
`this case, the allegations are that these individuals as
`
`15
`
`well -- in the course of their employment for Company A, sent
`
`16
`
`unsolicited, commercial e-mail to people who had not consented,
`
`17
`
`registered to or agreed to be the recipients of this e-mail,
`
`18
`
`which is commonly call "spam." So, under these allegations,
`
`19
`
`the people who received the unsolicited e-mails were victims.
`
`20
`
`For instance -- now, just to illustrate, the records we
`
`21
`
`are discussing with the Court are from the mail-forwarding
`
`22
`
`service and the webmail provider. In the case of the
`
`23
`
`mail-forwarding service, the third-party information we are
`
`24
`
`seeking to protect and limit having distributed to Company A
`
`25
`
`comes from victims. These are people who actually took
`
`
`
`Case 3:18-cr-04683-GPC Document 358-3 Filed 03/24/22 PageID.5063 Page 7 of 52
` 16
`18-cr-4683-GPC
`
` 1
`
`multiple steps to try and get themselves off the e-mail
`
` 2
`
`distribution lists that were being distributed and used by
`
` 3
`
`Company A to send the spam. These were the people who were
`
` 4
`
`saying, "I don't want you to communicate with me." So, giving
`
` 5
`
`their records, their personal information to the person they
`
` 6
`
`are specifically saying, "I don't want you to communicate with
`
` 7
`
`me," is part of why we are saying we believe there's a
`
` 8
`
`compelling reason, there's good cause to protect their privacy.
`
` 9
`
`Similarly, with the webmail records that we are getting,
`
`10
`
`these are individuals who a webmail provider identified as
`
`11
`
`being victims of spam.
`
`12
`
`So, to draw an analogy, if we had a boiler-room scheme,
`
`13
`
`where people were being called by phone and receiving phone
`
`14
`
`calls that they did not want and potentially luring them into
`
`15
`
`doing things they did not want to do, this would be analogous
`
`16
`
`to us saying, "While we may have only indicted employees of the
`
`17
`
`boiler room, we are seeking a protective order for those
`
`18
`
`third-party records that include PII from being disseminated
`
`19
`
`back to the boiler room." We are giving it to the individual
`
`20
`
`defendants in this case, but we are saying, "Please prevent
`
`21
`
`them from giving it to their employer absent a showing of good
`
`22
`
`cause and necessity."
`
`23
`
`Does that help illustrate to the Court how we perceive the
`
`24
`
`victims' PII in this case?
`
`25
`
`THE COURT: I think so. Ultimately, as a starting
`
`
`
`Case 3:18-cr-04683-GPC Document 358-3 Filed 03/24/22 PageID.5064 Page 8 of 52
`
`
`
`
`
`
`
`
`
`
`EXHIBIT B
`
`
`
`Case 3:18-cr-04683-GPC Document 358-3 Filed 03/24/22 PageID.5065 Page 9 of 52
`
` IN THE UNITED STATES DISTRICT COURT
`
` FOR THE SOUTHERN DISTRICT OF CALIFORNIA
`
`UNITED STATES, :
` :
` Plaintiff :
` :
` vs. : NO. 18-cr-4683-GPC
` :
`JACOB BYCHAK, et al., :
` :
` Defendants :
`
` VIDEOTAPED TRIAL DEPOSITION OF STEPHEN A.
`
` Taken in the Edward N. Cahn U.S.
`
`Courthouse & Federal Building, Conference Room 3600,
`
`504 West Hamilton Street, Allentown, Pennsylvania,
`
`on Wednesday, September 15, 2021, commencing at
`
`10:34 a.m., before Steven R. Mack, Registered Merit
`
`Reporter, and Bill Heilman, Videographer.
`
` * * *
` GALLAGHER REPORTING & VIDEO, LLC
` Mill Run Office Center
` 1275 Glenlivet Drive, Suite 100
` Allentown, PA 18106
` (610)439-0504 / (800)366-2980
` GallagherReporting@Verizon.net
`
`
`
`Case 3:18-cr-04683-GPC Document 358-3 Filed 03/24/22 PageID.5066 Page 10 of 52
`
`2
`
`APPEARANCES:
`
` U.S. DEPARTMENT OF JUSTICE
` CRIMINAL DIVISION
` By: CANDINA S. HEATH, ESQ.
` 1301 New York Avenue NW
` John C. Keeney Building
` Washington, DC 20530
` candina.heath2@usdoj.gov
` -- For the Plaintiff
`
` WIECHERT, MUNK & GOLDSTEIN, PC
` By: JESSICA C. MUNK, ESQ.
` 27136 Paseo Espada
` Suite B1123
` San Juan Capistrano, CA 92675
` jessica@wmgattorneys.com
` -- For Defendant Jacob Bychak
`
` MINTZ, LEVIN, COHN, FERRIS, GLOVSKY AND
` POPEO, P.C.
` By: RANDY K. JONES, ESQ.
` MARK J. GOODRICH, ESQ.
` 3580 Carmel Mountain Road
` Suite 300
` San Diego, CA 92130
` rkjones@mintz.com
` -- For Defendant Mark Manoogian
`
` BIRD, MARELLA, BOXER, WOLPERT, NESSIM,
` DROOKS, LINCENBERG & RHOW, P.C.
` By: NICOLE R. VAN DYK, ESQ.
` 1875 Century Park East, 23rd Floor
` Los Angeles, CA 90067-2561
` nvandyk@birdmarella.com
` -- For Defendant Peter Pacas
`
` * * *
` GALLAGHER REPORTING & VIDEO, LLC
` Mill Run Office Center
` 1275 Glenlivet Drive, Suite 100
` Allentown, PA 18106
` (610)439-0504 / (800)366-2980
`
` GallagherReporting@Verizon.net
`
`
`
`Case 3:18-cr-04683-GPC Document 358-3 Filed 03/24/22 PageID.5067 Page 11 of 52
`
`3
`
`APPEARANCES: (CONT'D.)
`
` BIENERT KATZMAN LITTRELL WILLIAMS, LLP
` By: CARLOS A. NEVAREZ, ESQ.
` 601 West 5th Street
` Suite 720
` Los Angeles, CA 90071
` cnevarez@bklwlaw.com
` -- For Defendant Mohammed Abdul Qayyum
`
`ALSO PRESENT:
`
` Andy Stengel, FBI agent
`
`ALSO PRESENT REMOTELY:
`
` Melanie Pierson, Esq.
` Sabrina Feve, Esq.
` Ryan T. Dougherty, Esq.
` Darren L. Patrick, Esq.
` James D. Riddet, Esq.
` Ray Christenson, IT
` Dominick Bellizzie, IT
`
` * * *
`
` GALLAGHER REPORTING & VIDEO, LLC
`
` Mill Run Office Center
`
` 1275 Glenlivet Drive, Suite 100
`
` Allentown, PA 18106
`
` (610)439-0504 / (800)366-2980
`
` GallagherReporting@Verizon.net
`
`
`
`Case 3:18-cr-04683-GPC Document 358-3 Filed 03/24/22 PageID.5068 Page 12 of 52
`
`1
`
`
`
`13
`
`
`
`
`
`
`
` (The witness was duly sworn.)
`
`
`
`
`
`
`
`
`
`
`
`
`
`BY MS. HEATH:
`
`Q. Please state your name for the record,
`
`your full name.
`
`A. Stephen Alan
`
`.
`
`Q. And do you reside in or around the
`
`Allentown, Pennsylvania, area?
`
`A. I resi -- yes.
`
`Q. Are you married?
`
`A. Yes.
`
`10
`
`11
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`
`
`Case 3:18-cr-04683-GPC Document 358-3 Filed 03/24/22 PageID.5069 Page 13 of 52
`
`51
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`and I have reviewed them, as I am doing now again.
`
`Q. Do you recognize any of those
`
`individuals?
`
`A. No.
`
`Q. Do you recognize any of the names of
`
`these companies? Hostwinds, H-o-s-t-w-i-n-d-s.
`
`A. No.
`
`Q. Adconion, A-d-c-o-n-i-o-n.
`
`
`
`
`
`A. No.
`
`Q. Amobee, A-m-o-b-e-e.
`
`A. No.
`
`
`
`
`
`Q. GetAds, G-e-t-a-d-s.
`
`
`
`
`
`A. No.
`
`Q. CoreXchange, the C-o-r-e-X-c-h-a-n-g-e.
`
`
`
`
`
`A. No.
`
`Q. Do you recognize the names of these
`
`individuals? Jacob Bychak.
`
`A. No.
`
`Q. Mark Manoogian.
`
`A. No.
`
`
`
`Case 3:18-cr-04683-GPC Document 358-3 Filed 03/24/22 PageID.5070 Page 14 of 52
`
`52
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`19
`
`20
`
`21
`
`22
`
`23
`
`Q. Mohammed Abdul Qayyum.
`
`A. No.
`
`Q. Peter Pacas.
`
`A. No.
`
`Q. Daniel Dye.
`
`A. No.
`
`Q. Vincent Tarney.
`
`A. No.
`
`Q. Did any of these individuals or entities
`
`contact you regarding the transfer of the block --
`
`
`
`
`
`
`
`Q. -- 167.87.0.0?
`
`A. No.
`
`Q. Did you ever authorize any of these
`
`individuals or entities to use your name?
`
`
`
`
`
`
`
`
`
`
`
`A. No.
`
`
`
`
`
`Q. Did you ever authorize any of these
`
`individuals or entities to sign Government's
`
`Exhibit 40 on your behalf?
`
`
`
`
`
`
`
`
`
`
`
`
`
`Case 3:18-cr-04683-GPC Document 358-3 Filed 03/24/22 PageID.5071 Page 15 of 52
`
`101
`
`1
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Q. Okay. In the third paragraph there you
`
`ask Mr. Booth to "Please share this email with your
`
`superiors in the Federal Court system, as no one
`
`else is looking at my best interest at this time.
`
`As I stated before, I did not own the asset, Siemens
`
`owned the asset in 2013 when the document your
`
`office showed me was forged."
`
` You remember writing that?
`
`A. Yes, and that's correct.
`
`Q. So you did not own the asset?
`
`A. That's correct. Sie --
`
`Q. And the asset that you were talking
`
`about is the net block that Ms. Heath spoke with you
`
`about earlier, correct?
`
`A. That is correct.
`
`Q. All right. And then on the --
`
`continuing with that, it says, "I am not the victim,
`
`they are."
`
`
`
`
`
`
`
`Case 3:18-cr-04683-GPC Document 358-3 Filed 03/24/22 PageID.5072 Page 16 of 52
`
`103
`
`1
`
`2
`
`3
`
`4
`
`5
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`24
`
`25
`
`Q. But going on it says, "I am not the
`
`victim, they are." That's your statement to the
`
`Government, correct?
`
`A. That's correct.
`
`
`
`
`
`
`
`
`
`
`
`
`
` All right. And then I'm going to
`
`show you the next in -- in order for the defense.
`
`This will be Defense Exhibit B. This is an email
`
`dated May 31st, 2021, from Steve Dorn to Glenn
`
`Booth.
`
` (Defendant's Exhibit B was marked
`
`for identification.)
`
`
`
`
`
`
`
`
`
` MR. JONES: We give a copy, let
`
`the record reflect I'm giving a copy of Defendant's
`
`
`
`Case 3:18-cr-04683-GPC Document 358-3 Filed 03/24/22 PageID.5073 Page 17 of 52
`
`163
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`Q. If you look at --
`
`A. Oh, okay.
`
`Q. -- the bottom of the --
`
`A. Oh, okay.
`
`Q. -- page there, it said -- can you read?
`
`Does it say Government Exhibit?
`
`A. Okay, 190. Okay.
`
`Q. 190. The same pictures that Ms. Heath
`
`showed you about two hours ago.
`
`A. Okay.
`
`Q. And I think you identified them,
`
`correct, as people that you've never met before,
`
`right?
`
`A. Correct.
`
`Q. So looking at Government Exhibit No. 90,
`
`have you ever spoken to this person before?
`
`A. No.
`
`Q. Have you ever met this person before?
`
`A. No.
`
`Q. Has this person ever made any
`
`representations to you to give him or someone else
`
`the net block?
`
`A. No.
`
`Q. Okay. Let's look at 191. Do you have
`
`that one in front of you?
`
`
`
`Case 3:18-cr-04683-GPC Document 358-3 Filed 03/24/22 PageID.5074 Page 18 of 52
`
`
`
`
`
`
`
`
`
`
`EXHIBIT C
`
`
`
`Case 3:18-cr-04683-GPC Document 358-3 Filed 03/24/22 PageID.5075 Page 19 of 52
`
`
`
`Case 3:18-cr-04683-GPC Document 358-3 Filed 03/24/22 PageID.5076 Page 20 of 52
`
`
`
`Case 3:18-cr-04683-GPC Document 358-3 Filed 03/24/22 PageID.5077 Page 21 of 52
`
`
`
`Case 3:18-cr-04683-GPC Document 358-3 Filed 03/24/22 PageID.5078 Page 22 of 52
`
`Leona
`Leona
`
` - 09/09/2021
` - 09/09/2021
`
`1 APPEARANCES (CONTINUED):
`
`2 For Defendant Petr Pacas:
`
`3 BIRD MARELLA
` BY: NICOLE R. VAN DYK, ESQ.
`4 1875 Century Park East, 23rd Floor
` Los Angeles, California 90067-2561
`5 Telephone: (310) 201-2100
` E-mail:
`nvandyk@birdmarella.com
`
`6
`
`7
`
` For Deponent:
`
` LAW OFFICE OF ROBERT WILLIAM MORRIS
`8 BY:
`ROBERT WILLIAM MORRIS, ESQ.
` 1200 California Street, Suite 260
`9 Redlands, California 92352
` Telephone: (909) 792-6455
`10 E-mail: lawofficerobertmorris@verizon.net
`
`11 ALSO PRESENT:
`
`12 Mr. Ray Christensen
` Technical Support
`13
` Mr. Barry Varanese
`14 Videographer
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`SHELBURNE SHERR COURT REPORTERS, INC. (619) 234-9100
`SHELBURNE SHERR COURT REPORTERS, INC. (619) 234-9100
`www.sscourtreporters.com
`www.sscourtreporters.com
`
`4
`
`
`
`Case 3:18-cr-04683-GPC Document 358-3 Filed 03/24/22 PageID.5079 Page 23 of 52
`
`
`
`Case 3:18-cr-04683-GPC Document 358-3 Filed 03/24/22 PageID.5080 Page 24 of 52
`
`
`
`Case 3:18-cr-04683-GPC Document 358-3 Filed 03/24/22 PageID.5081 Page 25 of 52
`
`
`
`Case 3:18-cr-04683-GPC Document 358-3 Filed 03/24/22 PageID.5082 Page 26 of 52
`
`
`
`Case 3:18-cr-04683-GPC Document 358-3 Filed 03/24/22 PageID.5083 Page 27 of 52
`
`
`
`Case 3:18-cr-04683-GPC Document 358-3 Filed 03/24/22 PageID.5084 Page 28 of 52
`
`
`
`Case 3:18-cr-04683-GPC Document 358-3 Filed 03/24/22 PageID.5085 Page 29 of 52
`
`
`
`Case 3:18-cr-04683-GPC Document 358-3 Filed 03/24/22 PageID.5086 Page 30 of 52
`
`
`
`Case 3:18-cr-04683-GPC Document 358-3 Filed 03/24/22 PageID.5087 Page 31 of 52
`
`
`
`
`
`
`
`
`
`
`EXHIBIT D
`
`
`
`Case 3:18-cr-04683-GPC Document 358-3 Filed 03/24/22 PageID.5088 Page 32 of 52
` 1
`18-cr-4683-GPC
`
` 1
`
` 2
`
` 3
`
`
`
`UNITED STATES DISTRICT COURT
`
`FOR THE SOUTHERN DISTRICT OF CALIFORNIA
`
` 4
`
` 5
`
` 6
`
` 7
`
` 8
`
` 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
` v.
`
`UNITED STATES OF AMERICA, .
` .
`Plaintiff, . No. 18-cr-4683-GPC
`.
`. April 30, 2019
`. 1:00 p.m.
` .
`JACOB BYCHAK,
` .
`MARK MANOOGIAN,
` .
`MOHAMMED ABDUL QAYYUM,
` .
`PETR PACAS,
` .
`Defendants.
`. San Diego, California
`. . . . . . . . . . . . . . . .
`
`
`
`TRANSCRIPT OF MOTION HEARING
`BEFORE THE HONORABLE GONZALO P. CURIEL
`UNITED STATES DISTRICT JUDGE
`
`
`
`
`
`APPEARANCES:
`
`For the Plaintiff:
`
`
`For the Defendant
`JACOB BYCHAK:
`
`
`For the Defendant
`MARK MANOOGIAN:
`
`United States Attorney's Office
`By: MELANIE K. PIERSON, ESQ.
` SABRINA FEVE, ESQ.
`880 Front Street, Room 6293
`San Diego, California 92101
`
`Law Office of David W. Wiechert
`By: JESSICA C. MUNK, ESQ.
` DAVID W. WIECHERT, ESQ.
`115 Avenida Miramar
`San Clemente, California 92672
`
`Mintz Levin
`By: RANDY K. JONES, ESQ.
`3580 Carmel Mountain Road, Suite 300
`San Diego, California 92130
`
`24
`
`
`
`25
`
`///
`
`
`
`Case 3:18-cr-04683-GPC Document 358-3 Filed 03/24/22 PageID.5089 Page 33 of 52
` 2
`18-cr-4683-GPC
`
` 1
`
`APPEARANCES (CONTINUED):
`
` 2
`
`
`
` 3
`
` 4
`
` 5
`
` 6
`
` 7
`
` 8
`
` 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`For the Defendant
`MOHAMMED ABDUL
`QAYYUM:
`
`
`
`For the Defendant
`PETR PACAS:
`
`Bienert, Miller & Katzman, P.L.C.
`By: WHITNEY Z. BERNSTEIN, ESQ.
` JAMES RIDDET, ESQ.
` THOMAS BIENERT, ESQ.
`903 Calle Amanecer, Suite 350
`San Clemente, California 92673
`
`Bird Marella Boxer Wolpert
` Nessim Drooks & Lincenberg
`By: NAEUN RIM, ESQ.
`1875 Century Park East
`Suite 2300
`Los Angeles, California 90067
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`22
`
`Court Reporter:
`
`23
`
`24
`
`25
`
`Chari L. Bowery, RPR, CRR
`USDC Clerk's Office
`333 West Broadway, Suite 420
`San Diego, California 92101
`chari_bowery@casd.uscourts.gov
`
`
`Reported by Stenotype, Transcribed by Computer
`
`
`
`Case 3:18-cr-04683-GPC Document 358-3 Filed 03/24/22 PageID.5090 Page 34 of 52
` 3
`18-cr-4683-GPC
`
` 1
`
` 2
`
` 3
`
`SAN DIEGO, CALIFORNIA; APRIL 30, 2019; 1:00 P.M.
`
`-o0o-
`
`THE CLERK: Calling Item Number 1 on the calendar,
`
` 4
`
`Case Number 18-cr-4683, U.S.A. v. Defendant Number 1, Jacob
`
` 5
`
`Bychak, if I could please have the appearance of the attorney.
`
` 6
`
`MS. MUNK: Good afternoon, Your Honor. Jessica Munk
`
` 7
`
`and Dave Wiechert on behalf of Jacob Bychak, who is present in
`
` 8
`
`court.
`
` 9
`
`10
`
`11
`
`THE COURT: Good afternoon.
`
`THE CLERK: Defendant Number 2, Mark Manoogian.
`
`MR. JONES: Good afternoon, Your Honor. Randy Jones
`
`12
`
`on behalf of my client, Mark Manoogian, who is present in
`
`13
`
`court.
`
`14
`
`15
`
`16
`
`Qayyum.
`
`THE COURT: Mr. Jones, good afternoon.
`
`THE CLERK: Defendant Number 3, Mohammed Abdul
`
`17
`
`MS. BERNSTEIN: Good afternoon, Your Honor. Whitney
`
`18
`
`Bernstein, with Jim Riddet and Tom Bienert, present on behalf
`
`19
`
`of Mr. Qayyum, who is also present before the Court.
`
`20
`
`21
`
`22
`
`THE COURT: Good afternoon.
`
`THE CLERK: And Defendant Number 4, Petr Pacas.
`
`MS. RIM: Good afternoon, Your Honor. Naeun Rim on
`
`23
`
`behalf of Petr Pacas, who is present in court.
`
`24
`
`25
`
`THE COURT: Good afternoon.
`
`MS. FEVE: Good afternoon, Your Honor. Sabrina Feve
`
`
`
`Case 3:18-cr-04683-GPC Document 358-3 Filed 03/24/22 PageID.5091 Page 35 of 52
` 28
`18-cr-4683-GPC
`
` 1
`
` 2
`
`THE COURT: Netblocks. That those were the victims.
`
`To show that there was a false representation wouldn't
`
` 3
`
`require for Mr. Holden to recount that he was a victim,
`
` 4
`
`correct?
`
` 5
`
`MS. RIM: Your Honor, I think that's a question that
`
` 6
`
`has to be answered. I don't think I can answer that question.
`
` 7
`
`It is the government's theory in their case. I am not sure.
`
` 8
`
`THE COURT: Let me ask, do you believe that you are
`
` 9
`
`required in your case in chief to demonstrate Mr. Holden was a
`
`10
`
`victim?
`
`11
`
`12
`
`MS. FEVE: No, Your Honor.
`
`THE COURT: I wouldn't see that that would be a
`
`13
`
`requirement at this point.
`
`14
`
`MS. FEVE: And this is for the wire fraud or for the
`
`15
`
`CAN-SPAM charge, Your Honor?
`
`16
`
`THE COURT: Well, certainly for the SPAM, and I am
`
`17
`
`not sure about the wire fraud. I haven't looked at that very
`
`18
`
`closely.
`
`19
`
`But I kept encountering this language about Mr. Holden as
`
`20
`
`a victim, and it seems like the statute is not directed at
`
`21
`
`Mr. Holden as much as it is to individuals who would end up
`
`22
`
`being the recipients of these emails. And then if anyone is a
`
`23
`
`victim, it would be the IP person -- the entity that has had
`
`24
`
`their profit accessed through false verifications, so that they
`
`25
`
`would be the victims, but it wouldn't be Holden.
`
`
`
`Case 3:18-cr-04683-GPC Document 358-3 Filed 03/24/22 PageID.5092 Page 36 of 52
` 29
`18-cr-4683-GPC
`
` 1
`
`MS. FEVE: No, Your Honor. Our theory is not that
`
` 2
`
`Mr. Holden is the victim here. I think the most obvious
`
` 3
`
`victims are the individuals who were the registrants of these
`
` 4
`
`IP netblocks who had their property used without their consent.
`
` 5
`
`It is -- with regard to the CAN-SPAM Act, there's an argument
`
` 6
`
`that the webmail providers are also potential victims.
`
` 7
`
` 8
`
`THE COURT: The webmail provider, would that be --
`
`MS. FEVE: The argument would be that Gmail, because
`
` 9
`
`it had to incur the cost of filtering the spam and was deceived
`
`10
`
`by one of -- in this case, the IP block. Now, again, that is
`
`11
`
`to say Gmail is a potential victim if you look at the statute.
`
`12
`
`But the victims that we have been focusing on in this case --
`
`13
`
`and that's clear from the discovery -- have been individuals
`
`14
`
`whose identities and property were used without permission.
`
`15
`
`THE COURT: So I guess I went on -- if not a detour,
`
`16
`
`I am asking these questions because what I am hearing is
`
`17
`
`there's an assertion that Mr. Holden presents himself as a
`
`18
`
`victim because he was fooled on the front end, in 2013, and
`
`19
`
`then later on, in 2014; when, really, was he fooled in 2014,
`
`20
`
`given that he might have been told by the CHS in 2013 that
`
`21
`
`these were false?
`
`22
`
`And then, my question is does that really matter in terms
`
`23
`
`of proving these charges, that in 2014 he did or didn't know?
`
`24
`
`MS. FEVE: I would refer back to the elements here,
`
`25
`
`and I don't believe that there's an element for either --
`
`
`
`Case 3:18-cr-04683-GPC Document 358-3 Filed 03/24/22 PageID.5093 Page 37 of 52
` 30
`18-cr-4683-GPC
`
` 1
`
` 2
`
`THE COURT: I don't believe there is either.
`
`And so, to the extent that it is not an element, then that
`
` 3
`
`proposition that you are offering, that the CHS would be able
`
` 4
`
`to show that there was no reliance or that there was no
`
` 5
`
`deception in 2014, it is a nonissue.
`
` 6
`
`MS. RIM: Your Honor, a misrepresentation is an
`
` 7
`
`element.
`
` 8
`
` 9
`
`THE COURT: Certainly.
`
`MS. RIM: I don't know who the misrepresentation
`
`10
`
`would be made to apart from Mr. Holden. But even if he is
`
`11
`
`going to testify that he knew these LOAs were forged, we do not
`
`12
`
`have a 302 to that effect. We don't have a statement from him
`
`13
`
`confirming that he is going to testify to that. I am not
`
`14
`
`questioning the government's representation, but the government
`
`15
`
`doesn't know what Mr. Holden is going to say.
`
`16
`
`We shouldn't have to prove what Mr. Holden is going to say
`
`17
`
`to be able to interview a witness who had extensive
`
`18
`
`communications with what is undoubtedly a central witness in
`
`19
`
`the government's case and who talked to him potentially about
`
`20
`
`the authenticity of these letters as part of our investigation.
`
`21
`
`I don't know what he is going to say today, but by the
`
`22
`
`time he gets on the stand and says something, it is going to be
`
`23
`
`too late for me to say, "Hold on. Now we know we need this
`
`24
`
`informant's testimony." We should be able to investigate this
`
`25
`
`now.
`
`
`
`Case 3:18-cr-04683-GPC Document 358-3 Filed 03/24/22 PageID.5094 Page 38 of 52
`
`
`
`
`
`
`
`
`
`
`EXHIBIT E
`
`
`
`Case 3:18-cr-04683-GPC Document 358-3 Filed 03/24/22 PageID.5095 Page 39 of 52
`
`
`
`Case 3:18-cr-04683-GPC Document 358-3 Filed 03/24/22 PageID.5096 Page 40 of 52
`
`
`
`Case 3:18-cr-04683-GPC Document 358-3 Filed 03/24/22 PageID.5097 Page 41 of 52
`
`
`
`
`
`
`
`
`
`
`EXHIBIT F
`
`
`
`Case 3:18-cr-04683-GPC Document 358-3 Filed 03/24/22 PageID.5098 Page 42 of 52
`
`
`
`Case 3:18-cr-04683-GPC Document 358-3 Filed 03/24/22 PageID.5099 Page 43 of 52
`
`
`
`Case 3:18-cr-04683-GPC Document 358-3 Filed 03/24/22 PageID.5100 Page 44 of 52
`
`
`
`Case 3:18-cr-04683-GPC Document 358-3 Filed 03/24/22 PageID.5101 Page 45 of 52
`
`
`
`Case 3:18-cr-04683-GPC Document 358-3 Filed 03/24/22 PageID.5102 Page 46 of 52
`
`
`
`
`
`
`
`
`
`
`EXHIBIT G
`
`
`
`Case 3:18-cr-04683-GPC Document 358-3 Filed 03/24/22 PageID.5103 Page 47 of 52
`
`
`
`Case 3:18-cr-04683-GPC Document 358-3 Filed 03/24/22 PageID.5104 Page 48 of 52
`
`
`
`Case 3:18-cr-04683-GPC Document 358-3 Filed 03/24/22 PageID.5105 Page 49 of 52
`
`
`
`Case 3:18-cr-04683-GPC Document 358-3 Filed 03/24/22 PageID.5106 Page 50 of 52
`
`
`
`
`
`
`
`
`
`
`EXHIBIT H
`
`
`
`Case 3:18-cr-04683-GPC Document 358-3 Filed 03/24/22 PageID.5107 Page 51 of 52
`
`
`
`Case 3:18-cr-04683-GPC Document 358-3 Filed 03/24/22 PageID.5108 Page 52 of 52
`
`
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
