Case 3:18-cr-04683-GPC Document 368 Filed 03/30/22 PageID.5288 Page 1 of 9
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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
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`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
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`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' NOTICE OF POTENTIAL EXPERT WITNESSES
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`Case 3:18-cr-04683-GPC Document 368 Filed 03/30/22 PageID.5289 Page 2 of 9
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`IN THE UNITED STATES DISTRICT COURT
`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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`DEFENDANTS’ NOTICE OF
`POTENTIAL EXPERT
`WITNESSES
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`Pursuant to Federal Rule of Criminal Procedure 16(b)(1)(C) and Federal
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`Rules of Evidence 702, 703 and 705, Defendants Jacob Bychak, Mark Manoogian,
`Mohammed Abdul Qayyum, and Petr Pacas (collectively, “Defendants”) hereby
`provide notice that they may present expert testimony of Marc Lindsey and Dennis
`Dayman at trial.
`I. Marc Lindsey
`The government has charged Defendants with wire fraud pursuant to 18
`U.S.C. § 1343, which requires the government to prove that IP netblocks are
`Case No. 18-CR-4683-GPC
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`“property.” In order to do so, the government will have to show that the netblocks
`constitute “something of value.” ECF No. 232 (Order Denying Motion to Dismiss
`Wire Fraud Charges) at 20. As the Court explained, this warrants expert testimony
`regarding, among other things, “what legacy IP addresses are, how legacy IP
`netblocks were assigned, how they were used, what limitations existed on a legacy
`registrant’s use of an IP address, whether the assignee had exclusive control and use
`of the netblocks, whether, how and when a legacy IP address could be transferred,
`and whether a market for the transfer of netblocks existed at the time alleged in the
`indictment.” Id. at 20-21, n.3. To that end, the government informed Defendants of
`its intent to call as expert witnesses John Curran, the President and CEO of the
`American Registry of Internet Numbers (ARIN), and Sandra Brown, the president
`and founder of IPv4 Market Group. See ECF Nos. 340, 342. In response to the
`government’s notice, Defendants anticipate eliciting the testimony of Marc A.
`Lindsey (hereinafter, “Mr. Lindsey”).
`A. Mr. Lindsey’s Relevant Experience
`Mr. Lindsey is the President and Co-Founder of Avenue4 LLC. Avenue4 is a
`leading professional IPv4 broker and market adviser. As President of Avenue4, Mr.
`Lindsey helps his clients monetize their unused IPv4 assets under dynamic and
`opaque market conditions without exposure to undue risk. Mr. Lindsey is an active
`participant and influencer in the IPv4 market who frequently writes and speaks on
`the topic.
`Mr. Lindsey is also a Partner at Levine Blaszak Block & Boothby LLP, where
`he specializes in structuring and negotiating custom transactions in the areas of
`information technology, cloud computing, managed services, enterprise software
`licensing, custom system development, network services, and enterprise-level
`equipment procurement arrangements. Mr. Lindsey is also a leading lawyer
`advising companies in the preservation and disposition of their IPv4 and IPv6
`number resources. Mr. Lindsey has counseled clients in connection with the
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`purchase and sale of IPv4 numbers, assisted companies with allocating, transitioning
`and sharing IPv4 assets during mergers, acquisitions, divestitures, spin-offs and
`splits, and advised organizations with legacy IPv4 numbers on interacting with
`regional Internet registries such as the ARIN.
`Mr. Lindsey earned his Bachelor’s degree in electrical engineering from
`Howard University, his Master’s degree in systems engineering from the University
`of Pennsylvania, and his Juris Doctorate degree (with honors) from the University of
`North Carolina at Chapel Hill. A copy of Mr. Lindsey’s curriculum vitae is attached
`hereto as Exhibit A.
`B. Mr. Lindsey’s Anticipated Testimony
`Defendants anticipate that Mr. Lindsey will testify regarding the history of
`ARIN and its predecessors, including how ARIN became the steward of IPv4
`address space pursuant to a delegation of authority by the United States government.
`Defendants further anticipate that Mr. Lindsey will explain how ARIN and its
`predecessors have acted as stewards over IPv4s, for the benefit of the internet
`community as a whole, and how “legacy” and “non-legacy” IP addresses were and
`are conditionally assigned, used and transferred. Defendants also expect that Mr.
`Lindsey will discuss the implications of ARIN’s proclamation that IP address space
`is not considered property.
`Defendants further anticipate that Mr. Lindsey will testify about the history of
`the IPv4 market for sales, purchases, and leases of IP netblocks, including the
`evolving industry customs and standards in the time period from 2011 to the present.
`More specifically, Defendants expect that Mr. Lindsey will explain the process of
`buying, selling, and leasing an IP address from the perspective of the buyer, seller,
`and broker, and testify that, based on his experience, there were no “typical”
`netblock transactions in the 2011-2014 time period. Defendants anticipate that Mr.
`Lindsey will testify about evaluating the potential monetary value or sale value of an
`IP netblock and the various factors that can influence the fair market value of a
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`netblock. Defendants also expect that Mr. Lindsey will testify about ARIN’s
`WHOIS registry, and explain that “legacy” IP address holders are not “registrants,”
`and are outside of the RIR registry regime.
`The bases and reasons for Mr. Lindsey’s opinions are his education and
`professional background, and the knowledge, training, skill, and experience he has
`developed over decades working in, studying, and advising in the industry. In
`addition, Mr. Lindsey may base his opinions on materials that have been produced
`in this case. To the extent Mr. Lindsey’s opinions are based on further materials that
`have not already been produced in this case, Defendants will provide a supplemental
`disclosure identifying such materials. Defendants also anticipate that Mr. Lindsey
`may rebut any opinions or testimony presented by the prosecution at trial and, as
`such, Defendants reserve the right to amend or supplement Mr. Lindsey’s
`anticipated testimony. Defendants further reserve all rights to present fact and/or
`summary testimony from this Mr. Lindsey.
`II. Dennis Dayman
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`The government characterizes this case as one involving a “flood of digital
`advertising,” for which “Company A required numerous Internet Protocol (IP)
`addresses” and “needed to constantly acquire large groups, or blocks, of IP
`addresses … because the IP addresses used to transmit their email advertising were
`repeatedly blocked by spam filters.” ECF No. 51 (Gov’t Response and Opposition
`to Defs’ Mot. for Bill of Particulars) at 3. The government further alleges that,
`“[e]ach 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 addresses used, and create new DBAs and email addresses to control
`these new domain names.” Id. at 10. The anticipated evidence, argument and
`testimony regarding these issues calls for expertise concerning the email advertising
`industry. To that end, the government informed Defendants of its intent to call
`Jennifer Rexford, a professor at Princeton University, Sean Zadig, the Chief
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`Information Security Officer at Yahoo, and a GoDaddy Custodian of Records. See
`ECF Nos. 340, 342. In response to the government’s disclosure, Defendants
`anticipate eliciting the testimony of Dennis Dayman (hereinafter, “Mr. Dayman”).
`A. Mr. Dayman’s Relevant Experience
`Mr. Dayman has more than 25 years of experience in the mass-email
`marketing industry. Mr. Dayman’s relevant professional experience includes
`serving as the Director of Deliverability, Privacy and Standards at StrongView
`Systems, Inc. (n/k/a Selligent, Inc.), and as the Chief Privacy and Security Officer
`for both Eloqua, Inc. (n/k/a Oracle Corporation) and Return Path, Inc. (n/k/a
`Validity Inc.). In these roles, Mr. Dayman’s responsibilities included, among other
`things, working with spam-filtering companies, developing standards for email
`delivery, and overseeing email governance to ensure compliance with various
`Internet regulations, including CAN-SPAM regulations. Mr. Dayman also serves on
`advisory boards for several other Internet companies.
`Alongside his work with public and private companies, Mr. Dayman is
`involved in the development of state and federal Internet and digital
`communications regulations, anti-spam legislation, and privacy and security
`policies. Mr. Dayman’s experience and specialized knowledge has attracted
`invitations to testify before various domestic and international governmental bodies,
`including the United States Congress, the Federal Trade Commission, the Canadian
`Radio-television and Telecommunications Commission, and the Canadian and
`European Parliaments, concerning topics such as Internet governance, best practices,
`and anti-spam regulations. Mr. Dayman has also been appointed to several boards
`and advisory committees within the email messaging industry, including the
`Department of Homeland Security’s Data Privacy and Integrity Advisory
`Committee, and the United States Technical Advisory Group, a task force within the
`International Organization for Standardization and American National Standards
`Institute. Mr. Dayman holds a Bachelor of Science in Criminal Justice from
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`Stephen F. Austin State University in Texas. A copy of Mr. Dayman’s curriculum
`vitae is attached hereto as Exhibit B.
`B. Mr. Dayman’s Anticipated Testimony
`Defendants anticipate that Mr. Dayman will testify about the mass-email
`marketing industry, including the development of industry customs, standards and
`best practices between 2011 and the present. In particular, Defendants anticipate
`that Mr. Dayman will explain why email advertisers require large numbers of IP
`addresses, and that the use of DBAs is a common practice among email advertisers.
`Defendants also anticipate that Mr. Dayman will testify about the techniques used
`by Internet service providers (ISPs) and email advertisers relating to the
`deliverability and filtering of commercial emails. Defendants anticipate that Mr.
`Dayman will also define and explain technical terms and concepts regarding the
`mass-email marketing industry, including, without limitation, spam, spam filter,
`deliverability, hijack, border gateway protocol (BGP), and private domain
`registration.
`Defendants further anticipate that Mr. Dayman will testify about the role of
`anti-spam organizations, such as The Spamhaus Project (Spamhaus) and
`Spamcop.net (Spamcop), in the mass-email marketing industry. More specifically,
`Defendants anticipate that Mr. Dayman will explain how such organizations operate,
`including that they maintain “block” lists,1 that they do not apply a legal test in
`order to determine whether an individual or organization should be listed on their
`“block” lists, and that this may result in the listing of individuals or organizations
`that are compliant with the CAN-SPAM Act of 2003. Defendants anticipate that
`Mr. Dayman will also testify that, in some instances, such anti-spam organizations
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`1 For example, Spamhaus alone operates multiple block lists, including, among
`others, the Spam Block List (SBL), Domain Block List (DBL), Policy Block List
`(PBL), and the Registry of Known Spam Operations (ROKSO).
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`have erroneously listed IP addresses as “hijacked,” or listed IP addresses,
`individuals or organizations for purposes other than spam prevention.
`Mr. Dayman’s opinions are based on his extensive technical knowledge and
`professional experience in the mass-email marketing industry. Mr. Dayman’s
`opinions may also be based on the files and records in this case. To the extent that
`Mr. Dayman’s opinions are based on materials not already produced in this case,
`Defendants will disclose any such material to the government. Defendants also
`anticipate that Mr. Dayman may rebut any opinions or testimony presented by the
`prosecution at trial and, as such, Defendants reserve the right to amend or
`supplement Mr. Dayman’s anticipated testimony.
`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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`Dated: March 30, 2022
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`Case No. 18-CR-4683-GPC
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`DEFENDANTS' NOTICE OF POTENTIAL EXPERT WITNESSES
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`Dated: March 30, 2022
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`Dated: March 30, 2022
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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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` 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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`Case 3:18-cr-04683-GPC Document 368 Filed 03/30/22 PageID.5296 Page 9 of 9
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`Dated: March 30, 2022
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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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`Case No. 18-CR-4683-GPC
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`s/ Alexis A. Wiseley
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`Alexis A. Wiseley
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