Case 3:18-cr-04683-GPC Document 369 Filed 03/31/22 PageID.5304 Page 1 of 38
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`RANDY S. GROSSMAN
`United States Attorney
`MELANIE K. PIERSON
`SABRINA L. FEVE
`Assistant U.S. Attorneys
`California Bar No. 112520/226590
`Office of the U.S. Attorney
`880 Front Street, Room 6293
`San Diego, CA 92101
`Tel: (619) 546-7976
`Fax: (619) 546-0631
`Email:Melanie.Pierson@usdoj.gov/Sabrina.Feve@usdoj.gov
`
`CANDINA S. HEATH
`Senior Counsel
`Texas Bar No. 09347450
`Computer Crime and Intellectual Property Section
`U.S. Department of Justice
`Washington, D.C. 20005
`Tel: (202) 307-1049
`Email: Candina.Heath2@usdoj.gov
`
`Attorneys for Plaintiff
`United States of America
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF CALIFORNIA
`UNITED STATES OF AMERICA,
`Case No.: 18cr4683-GPC
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`
`Plaintiff,
`UNITED STATES’
`
`CONSOLIDATED RESPONSES
`v.
`
`IN OPPOSITION TO
`
`JACOB BYCHAK (1),
`DEFENDANTS’ MOTIONS IN
`MARK MANOOGIAN (2),
`LIMINE TO:
`ABDUL MOHAMMED QAYYUM (3), and
`(1) PRECLUDE REFERENCE
`PETR PACAS (4),
`TO SPAM OR SPAMMERS;
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`(2) PRECLUDE REFERENCE
`
`Defendants.
`TO MANOOGIAN’S
`
`ATTORNEY STATUS;
`(3) PRECLUDE RELIANCE ON
`THE NORTEL SALE TO
`PROVE DEFENDANTS’
`STATE OF MIND;
`(4) EXCLUDE REFERENCES
`TO IDENTITY THEFT;
`(5) PRECLUDE ARGUMENT
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`Case 3:18-cr-04683-GPC Document 369 Filed 03/31/22 PageID.5305 Page 2 of 38
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`THAT USE OF DBAs, P.O.
`BOXES, & EMAIL
`ADDRESSES WITH FAKE
`NAMES IS ILLEGAL;
`(6) ATTORNEY-CONDUCTED
`VOIR DIRE;
`(7) PRECLUDE REFERENCES
`TO CERTAIN PEOPLE AS
`“VICTIM”;
`(8) EXCLUDE 404(B)
`EVIDENCE;
`(9) PRECLUDE EXPERT
`TESTIMONY & REQUEST
`DAUBERT HEARING;
`(10) LIMIT GOV. CASE-IN-
`CHIEF TO 11 NETBLOCKS
`
`
`
`
`
`COMES NOW the plaintiff, United States of America, by and through its counsel,
`Randy S. Grossman, United States Attorney, and Assistant United States Attorneys
`Melanie K. Pierson, Sabrina L. Fève, and Computer Crime and Intellectual Property
`Section Senior Counsel Candy Heath, and hereby files its Consolidated Responses in
`Opposition to Defendants’ Motions in Limine.
`INTRODUCTION
`Defendants have filed ten unsealed motions in limine: Motions in Limine Nos. 1
`through 9, and an unnumbered motion to limit the government’s case-in-chief to the eleven
`domains and related netblocks listed in Grand Jury Exhibit 251. The defense has also filed
`a sealed ex parte motion that presumably relates to what evidence the government may
`offer at trial. [ECF No. 348.] The government opposes all but one of the ten unsealed
`motions in limine, and does not oppose Defendants’ Motion in Limine No. 6, which moves
`for attorney-conducted voir dire. The government also requests an opportunity to be heard
`on any additional motions seeking to limit the evidence it may present, or arguments it may
`make, at trial. The government’s consolidated responses to defendants ten unsealed
`2
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`Government’s Consolidated Response & Opposition
`to Defendants’ Motions in Limine Nos. 1-10
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`18cr4683-GPC
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`Case 3:18-cr-04683-GPC Document 369 Filed 03/31/22 PageID.5306 Page 3 of 38
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`motions in limine are below. To facilitate the Court’s review, the following table is
`provided:
`
`
`Def. MIL #
`No. 1 (“Spam” References)
`No. 2 (Attorney Status)
`No. 3 (Nortel Transaction)
`No. 4 (“Identity Theft”)
`No. 5 (DBAs, PO Boxes)
`No. 6 (Voir Dire)
`No. 7 (“Victim” References)
`No. 8 (Rule 404(b))
`No. 9 (Experts Witnesses)
`(No. 10) (Limit Netblock Refs.)
`
`Docket #
`ECF No. 353
`ECF No. 353
`ECF No. 349
`ECF No. 355
`ECF No. 356
`ECF No. 357
`ECF No. 358
`ECF No. 360
`ECF No. 359
`ECF No. 354
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`Gov. Response
`Page 3
`Page 6
`Page 7
`Page 8
`Page 12
`Page 15
`Page 15
`Page 17
`Page 21
`Page 36
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`POINTS & AUTHORITIES
`1. (Def. MIL #1) Use of the Term “Spam” is Appropriate
`Defendants’ Motion in Limine No. 1 seeks an order “precluding any reference to
`‘spam’” during trial. [ECF No. 353-1 at 2.]1 While the defense claims that there is a
`nefarious inference in using the term “spam” and that the term “reeks of criminality,” [ECF
`No. 353-1 at 6], the court should consider the common definitions. In its first entry,
`Merriam-Webster defines “spam” as “unsolicited usually commercial messages (such as
`emails, text messages, or Internet postings) sent to a large number of recipients or posted
`in a large number of places.”2 The second entry is as a verb, spammed or spamming, “to
`
`1 There is a discrepancy between the page numbers in defendants’ original briefs and the
`page numbers in their briefs’ ECF headers. Citations herein are to the page numbers in the
`ECF headers.
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`18cr4683-GPC
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` 2
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` https://www.merriam-webster.com/dictionary/spam.
`3
`Government’s Consolidated Response & Opposition
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`to Defendants’ Motions in Limine Nos. 1-10
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`send or post spam to,” and the third entry, of course, is “a canned meat product.” Oxford
`Learner’s Dictionaries similarly define “spam” as “advertising material sent by email to
`people who have not asked for it; advertising material on the internet that is not wanted,”
`and a “cooked meat” product.3 Such definitions do not prejudice the defendant and do not
`infer nefarious conduct or a criminal enterprise.
`The term “spam” is intrinsic to the offense (indeed the statute is called the CAN-
`SPAM Act) and intertwined with the proof and the evidence of the criminal conduct. In
`the CAN-SPAM Act charges, one of the elements the government must prove is that the
`defendants sent a certain number of commercial email messages in a defined period from
`the netblocks at issue. The word “spam,” in all its iterations or as part of organization
`names (Spamhaus and Spam Cop), will be before the jury – not because the government
`chose the term, but because the defendants use the terms in the operation of their criminal
`scheme. In their communications with one another and with others, the defendants and co-
`conspirators refer to “CAN-SPAM complaints,” “Spam warnings,” “Spamhaus,” “Spam
`Cop,” and use the word “spam” or iterations thereof. The terms “spam” and “spammer”
`are entrenched in the vernacular used by the defendants and co-conspirators, and the
`persons or entities complaining about or attempting to prevent spam.
`For example, Company A, the defendants, and the coconspirators routinely received
`email notifications from “BlackMail Report Generator,” which produced daily reports
`identifying the volume of emails delivered, the “clicks” generated by the emails, and the
`IP ranges used to send the emails. The government produced over 18,700 reports from the
`BlackMail Report Generator in discovery. The BlackMail Report Generator also counted
`the number of emails that “bounced” and broke them down by category, including one
`entitled, “spam-related.” For example, on January 26, 2014, the BlackMail Report
`Generator reported 8.7 million emails delivered and 1,990,670 bounced as “spam-related.”
`(AMOBEE0069636-642.) In emails between defendants and hosting companies, the term
`“spam” and “spammers” was used repeatedly. (ADCONION-HOSTWINDS-14-002-
`
`3 https://www.oxfordlearnersdictionaries.com/us/definition/english/spam_1.
`4
`Government’s Consolidated Response & Opposition
`18cr4683-GPC
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`to Defendants’ Motions in Limine Nos. 1-10
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`defendants
`the
`00007; ADCONION-HOSTWINDS-14-003-00001.) Moreover,
`themselves received complaints regarding “spam” from consumers, who sent their
`complaints to the email addresses the defendants created under false names to list as the
`point of contact
`for
`the domains controlling
`the hijacked
`IP addresses.
`(AMOBEE0046956.) The jury cannot properly receive the evidence in this case without
`seeing the word “spam” repeatedly.
`In Phillips v. NetBlue ,Inc., 2007 WL 528722 *5 (N.D. Cal., Feb. 13, 2007), the court
`rejected a motion in limine seeking to prohibit the use of the word “spam.” In denying the
`motion, the court found that “[t]he word “spam” is one of common usage, with a
`commonly understood meaning. The CAN-SPAM Act, itself, uses the word.” Id. (citing
`15 U.S.C. § 7703(c)). Id. Drawing an analogy to murder, the court reasoned,
`
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`[W]hen a defendant is charged with murder, the government tries to prove
`that the defendant committed the murder, and the defendant tries to refute
`that accusation. It does not, in the latter example, make the government's use
`of the word “murder” unfairly prejudicial simply because the word has a
`negative connotation; its negative connotation has the same source as the
`prohibition against the behavior it describes.
`Id. Phililips went on to state that the expert’s use of the word “spam” would assist the jury
`to “make sense of the complicated technical testimony” and therefore had “a significantly
`probative aspect which is not substantially outweighed by the danger, if any, of it having
`an unfairly prejudicial effect.”
`“Relevancy is not an inherent characteristic of any item of evidence but exists only
`as a relation between an item of evidence and a matter properly provable in the case.”
`Advisory Committee's Notes on Fed. Rule Evid. 401, quoted in Huddleston v. United
`States, 485 U.S. 681 (1988); see also United States v. Vallejo, 237 F.3d 1008, 1015-16
`(9th Cir. 2001). The standard for relevance is a low one. The evidence need only have the
`tendency to prove or disprove a disputed fact. United States v. Martinez, 938 F.2d 1078
`(10th Cir. 1991); see also Crawford v. City of Bakersfield, 944 F.3d 1070, 1077 (9th Cir.
`2019). The terms contested by the defense, “spam” or “spammers,” are relevant to the
`
`Government’s Consolidated Response & Opposition
`to Defendants’ Motions in Limine Nos. 1-10
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`5
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`allegations set out in the indictment and the anticipated proof in this case. The term “spam”
`is a commonly used shorthand for bulk commercial emails, which the government should
`be able to use at trial, just as the defendants used the term in conducting business.
`Accordingly, this motion should be denied.
`2. (Def. MIL #2) Defendant’s Educational Background is Admissible
`Defendants’ Motion in Limine No. 2 seeks an order “precluding all references at
`trial to the fact that Mark Manoogian is an attorney, that he attended law school, or that he
`represented Company A in any capacity as an attorney…” [ECF No. 353-1 at 3.]
`Defendant Mark Manoogian fails to cite any authority in support of his proposition that
`his educational background, or the educational background of any defendant, is not
`relevant to the jury’s consideration of a defendant’s intent to purposefully engage in the
`alleged conduct. Evidence of a defendant’s education and training are probative when
`considering whether a defendant has the appropriate mens rea for the offenses charged.
`“[T]he trier of fact may properly consider the general educational background and
`expertise of the defendant as bearing on the defendant’s ability to form the requisite”
`intent. United States v. Fletcher, 928 F.2d 495, 501-1 (2nd Cir. 1991). The defendant in
`Fletcher, like defendant Manoogian, was a non-practicing attorney. In proving willfulness
`in tax cases, for example, courts have held that the educational background or prior work
`experience of a defendant is clearly relevant. United States v. Daugerdas, 2010 WL
`4967878 *3-4 (S.D. N.Y. Nov. 22, 2010) (defendant’s prior experience as a partner at an
`accounting firm is relevant to the issue of his knowledge and intent) (citing Cheek v.
`United States, 498 U.S. 192, 201 (1991)); see also United States v. Klausner, 80 F.3d 55,
`63 (2nd Cir. 1996) (defendant's “background as a CPA and his extensive business
`experience ... demonstrated that he was aware of his duty to report his income taxes”).
`Just as common sense suggests that the jury can consider a myriad of factors
`including educational background and work experience when evaluating mens rea and
`determining the lack of ignorance, mistake, or accident, the defendant’s lack of education
`also can be considered by the jury as a mitigating factor. United States v. Price, 623 F.2d
`6
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`Government’s Consolidated Response & Opposition
`to Defendants’ Motions in Limine Nos. 1-10
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`18cr4683-GPC
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`587, 592 (9th Cir. 1980) (defendant’s lack of business experience and lack of higher
`education are evidence of lack of intent in mail fraud case). See also Brown v. Thaler,
`2011 WL 798391 *15 (S.D. Tex. Feb. 28, 2011); Duffy v. Beard, 2011 WL 4401681 *8
`and 13 (M.D. Penn. Sept. 12, 2011). Accordingly, this motion should be denied.
`3. (Def. MIL #3) The Nortel Evidence Should Not Be Excluded or Limited
`Defendants’ Motion in Limine No. 3 seeks to preclude the government from using
`the difference between what the defendants paid for the hijacked GetAds netblocks
`(approximately $2 per IP address) and what Microsoft paid for Nortel Networks’ netblock
`(approximately $11 per IP address) as evidence that defendants knew or should have
`known they were buying stolen goods. [ECF No. 349-1 at 8-9.] The defense contests the
`government eliciting testimony or evidence regarding the Nortel/Microsoft transaction
`under Federal Rules of Evidence (FRE or Rule) 104(b)4 and 403, which occurred during
`the pendency of the alleged conspiracy. [Id. at 9.]
`Defendants’ first argument is that the government must prove that the defendants
`were “not only aware of the Nortel Transaction” but also that the transaction represented
`the fair value of an IP address at the time to satisfy Rule 104(b)’s conditional relevance.
`[Id.] This argument misstates the legal standard for relevance, which is having a “tendency
`to make a fact more or less probable.” Fed. R. Evid. 401(a); see also Rule 403 Advisory
`Committee Notes ([it “is not to be supposed that every” witness or piece of evidence “can
`make a home run”). Even so, Company A emails from November 2012 show that
`defendants Manoogian, Bychak, and Mohammed were aware of the Nortel/Microsoft
`transaction and were using the same netblock brokerage company that had represented
`Nortel to help defendants find IP addresses they, too, could buy or lease. (ADCONION-
`EMAILS-MM-00019311-314.) As to the appropriateness of the price paid by Microsoft
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`4 FRE 104(b): Relevance That Depends on a Fact. When the relevance of evidence depends
`on whether a fact exists, proof must be introduced sufficient to support a finding that the
`fact does exist. The court may admit the proposed evidence on the condition that the proof
`be introduced later.
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`Government’s Consolidated Response & Opposition
`to Defendants’ Motions in Limine Nos. 1-10
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`18cr4683-GPC
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`for the “exclusive rights to use and transfer” the Nortel netblock, the Delaware bankruptcy
`court had to sign off on the netblock transfer, which signals that the judge found the pricing
`was fair. [ECF No. 349 at 7.]
`the
`the price defendants paid for
`that
`Defendants’ Rule 403 argument
`misappropriated GetAds netblocks is unduly prejudicial is similarly unsupported. The
`courts have a long history of admitting price information as evidence a defendant knew
`goods were stolen or misappropriated. See, e.g., Adolfson v. United States, 159 F.2d 883,
`886-87 (paying a “price disproportionate to” an item’s value is permissible circumstantial
`evidence that defendant knew the item was stolen); Experian Info. Sols., Inc. v. Nationwide
`Mktg. Servs. Inc., 893 F.3d 1176, 1180 (9th Cir. 2018) (“unusually low” purchase price
`was circumstantial evidence that data was stolen); United States v. Shalash, 108 F.App’x
`269, 286 (6th Cir. 2004) (below-market price is evidence that goods were stolen); United
`States v. Smith, 502 F.2d 1250, 1254 (5th Cir. 1974) (same); Melson v. United States, 207
`F.2d 558 (4th Cir. 1953) (same). Defendants’ assertions that the jury will be confused
`because Microsoft is bigger, in a different state, and in a different sector of the economy,
`or somehow blinded by Microsoft’s “overall influence” are speculative. Their motion to
`preclude the government from referring to the Nortel purchase should therefore be denied.
`4. (Def. MIL #4) Evidence of False Identities is Probative and Admissible
`Defendants’ Motion in Limine No. 4 seeks “an order precluding the government
`from presenting evidence, testimony, statements or arguments concerning the uncharged
`crime of identity theft.” [ECF No. 355-1 at 3.] The heart of the fraud in the indicted charges
`is the defendants’ use of Letters of Authorizations (LOAs) sent under false signatures, on
`behalf of the registrants, supposedly authorizing the defendants to use the hijacked IP
`addresses. Some of the LOAs involved the forged signature of an actual person listed as
`the point of contact on the registry for the IP addresses (such as SAD). Other LOAs
`involved the signature of a fictitious person created by the coconspirators to represent the
`registrant without the registrant’s approval. These forged and fictitious signatures are
`
`Government’s Consolidated Response & Opposition
`to Defendants’ Motions in Limine Nos. 1-10
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`critical evidence of criminal intent that the government must be able to present to the jury
`to establish the elements of the offenses charged.
`The defendants in this case are charged with conspiracy (18 U.S.C. §371), wire fraud
`(18 U.S.C. §1343) and electronic mail fraud (18 U.S.C. §1037). To prevail on the counts
`charging electronic mail fraud, the government must prove that the defendants “falsely
`represent[ed] themselves to be the registrant and legitimate successor in interest to the
`registrant of 5 or more Internet Protocol addresses,” which were then used to send spam.
`The wire fraud charges require the government to prove that the defendants “knowingly
`devised a scheme or plan to defraud, or a scheme or plan for obtaining money or property
`by means of false or fraudulent pretenses, representations, or promises.” Ninth Circuit
`Model Jury Instruction 15.35. The indictment alleges the false or fraudulent
`representations to be “letters to internet hosting companies fraudulently making it appear
`that the registrant of the IP addresses had authorized the defendants’ use of the IP
`addresses.” [ECF No. 1, para. 6.] All the charges require the government to prove that the
`defendants and their co-conspirators falsely represented themselves to be someone they
`were not to gain control of the netblocks.
`Evidence of identity theft has been admitted as evidence of criminal intent in
`prosecutions for mail fraud, wire fraud, and bank fraud, where no charges of identity theft
`were brought, when the evidence explained how the defendant committed the charged
`offense. In United States v. Arriaza, 561 Fed Appx 635 (9th Cir. 2014), in a prosecution
`for wire fraud, the court upheld the use of “documentary and testimonial” evidence that
`the defendant “created and processed fake documents” and “notarized documents with the
`forged signatures of people whose identities had been stolen” as evidence of criminal
`intent showing the method of committing the fraud. In United States v. McNeil, 320 F. 3d
`1034, 1039 (9th Cir. 2021), in a prosecution for bank fraud and wire fraud, the court
`admitted evidence the defendant had “used fake identification to open a bank account in
`Doe’s name and misrepresented himself as Doe to the bank” as evidence of criminal intent,
`explaining how the offenses were committed. In United States v. Thompson, 221 Fed Appx
`9
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`to Defendants’ Motions in Limine Nos. 1-10
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`622, 623 (9th Cir. 2007), in a prosecution for bank fraud and possession of stolen mail,
`the court approved the admission of the defendant’s “other identity theft-related activities”
`as evidence of criminal intent under FRE 404(b), where the identity theft was not a part of
`the offenses charged.
`The defense argues that because the defendants have not been directly charged with
`aggravated identity theft (18 U.S.C. §1028), all “evidence, testimony, statements or
`arguments” on the subject should be excluded under FRE 403. [ECF No. 355-1 at 6.] This
`argument ignores the powerful probative value of the defendants’ misappropriation of the
`identity of others as evidence of criminal intent, which goes to the element of a material
`misrepresentation for wire fraud. While the government is not arguing that the defendants
`committed the uncharged crime of identity theft, the government does intend to present
`evidence and argument to the jury that asks jurors to infer intent to defraud when a
`defendant signs the name of another to a document which allows him to take control of
`property, knowing he lacks authorization to do so. Indeed, the court in Thompson noted
`that the court properly exercised its discretion when admitting the evidence of other
`uncharged “identity theft-related activities” after balancing the considerations under FRE
`403.
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`The cases cited by the defense are easily distinguishable. The defense cited United
`States v. Rojas, 2014 WL 12695689 (N.D. Iowa, Oct. 15, 2014), in support of the notion
`that evidence of false identification was evidence of propensity, rather than evidence of
`the charged offenses. In Rojas, the defendant was charged with fraudulent use of credit
`cards. The court granted the defense motion in limine to exclude evidence that the
`defendant used false identification to work at a Tyson facility, finding that “Rojas’s use of
`false identification in other circumstances and for other purposes” had little probative
`value. In this case, the evidence of defendants’ use of other people’s identities in the LOAs
`relates directly to the offenses charged involving the netblocks, rather than to an ancillary
`or unrelated issue, and accordingly is admissible to show criminal intent.
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`Government’s Consolidated Response & Opposition
`to Defendants’ Motions in Limine Nos. 1-10
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`The defense also cites United States v. Gatewood, 601 Fed. Appx 580, 582 (9th Cir.
`2015) as holding that the district court erred in admitting other acts evidence, which is
`incorrect. The defense citation is to the dissenting opinion; the panel’s majority upheld the
`admission of the other acts evidence. The defense’s citations to United States v. Hodges,
`770 1475 (9th Cir. 1985) and United States v. Bradley, 5 F. 3d 1317 (9th Cir. 1993) are
`also inapposite. In Hodges, the evidence at issue involved allegations of extortion with
`threats of physical harm that happened after the offenses charged in the indictment, while
`in Bradley, the court examined evidence of an uncharged homicide. Like the other cases
`cited by the defense in support of this motion, the evidence at issue in those cases “other
`act evidence” that sought to be admitted under FRE 404(b), and not evidence directly
`related to and intrinsically intertwined with the charged offenses, as in this case here. It is
`impossible to explain to the jury how the defendants came to control the netblocks and use
`them to send spam without also explaining that they sent LOAs under the names of others,
`falsely stating they were authorized by the registrants to use the netblocks. The evidence
`of the defendants’ use of identities other than their own is not “other act evidence” of the
`uncharged offense of identity theft offered under FRE 404(b), but instead is direct
`evidence of the offenses charged in the indictment, and strong evidence of criminal intent.
`The Ninth Circuit has noted that “[r]elevant evidence is inherently prejudicial; but it
`is only unfair prejudice, substantially outweighing probative value, which permits
`exclusion of relevant matter under Rule 403. Unless trials are to be conducted as scenarios,
`or unreal facts tailored or sanitized for the occasion, the application of Rule 403 must be
`cautious and sparing.” United States v. Hankey, 203 F. 3d 1160, 1172 (9th Cir. 2000)
`(citation omitted). Defendants’ sole legal citation to support their claim that evidence of
`identity theft creates unfair prejudice that causes jurors to react improperly and
`emotionally is the Rojas, an Iowa district court decision. A Central District of California
`court, however, has found that “identity theft is not the kind of evidence that would appeal
`to a jury’s sense of outrage or horror, thereby provoking a desire to punish Defendant
`regardless of the evidence presented.” United States v. Hardgraves, 2015 WL 13389947
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`Government’s Consolidated Response & Opposition
`to Defendants’ Motions in Limine Nos. 1-10
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`18cr4683-GPC
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`*2 (C.D. Cal. Feb 10, 2015); see also United States v. Duranseau, 19 F.3d 1117, 1120-21
`(6th Cir. 1994) (probative evidence of defendants’ use of aliases and stolen identities
`outweighed any prejudice). Accordingly, evidence that the defendants used names other
`than their own to falsely claim they were authorized by the registrants to use the netblocks
`in this case is relevant, probative of criminal intent, inextricably intertwined with the
`charged offenses and admissible. Accordingly, this motion should be denied.
`5. (Def. MIL #5) Evidence of DBAs, P.O. Boxes, and Emails Under Different Names
`is Not Unduly Prejudicial or Grounds for a Limiting Instruction
`Defendants’ Motion in Limine No. 5 seeks: 1) to “preclude the government from
`framing its evidence and argument in a way that suggest that the use of DBAs, post office
`boxes, and email addresses under different names is illicit conduct indicative of guilt,” and
`2) for the Court to “instruct the jury that the mere use of DBAs, post office boxes, and
`email addresses under different names are lawful and common business practices.” [ECF
`No. 356-1 at 7.] Defendants’ motion to limit how the government may “frame” the
`defendants’ use of DBAs, post office boxes, and email addresses under different names is
`factually and legally unsupported. The factual error is that Defendants’ motion incorrectly
`states that, in a recent meet and confer, the government “conceded that the use of DBAs,
`post office boxes, and email addresses under different names are lawful and common
`practices” and “does not contend that the use of DBAs, post office boxes and email
`addresses under different names is unlawful.” [ECF No. 356-1 at 3, 6.] After receiving
`defendants’ motion and supporting declaration, the government discussed the meet and
`confer representations with defense counsel, who has graciously agreed that the
`government may correct the record as follows: during the meet and confer, defense counsel
`did not mention, and the parties did not discuss, defendants’ use of email addresses under
`different names, let alone agree that this practice was lawful or common. As for the DBAs
`and post office boxes, the parties agree that government did state in the meet and confer
`that there was nothing inherently illegal about the use of DBAs or post office boxes, but
`the government argued that it was these items’ use in furtherance of the scheme that was
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`Government’s Consolidated Response & Opposition
`to Defendants’ Motions in Limine Nos. 1-10
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`improper. The government therefore did not “concede” that DBAs or post office boxes are
`common practices that it could not contend were unlawful or illicit. 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 suggest that the use of DBAs, post
`office boxes, and email addresses under different names is illicit conduct” should therefore
`be denied. [ECF No. 356-1 at 6.]
`Defendants’ alternate argument for limiting the government’s “framing” of this
`evidence is that it will violate Rule 403. They argue that “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.” [ECF No. 356-1 at 6.] Defendants’ concern that the jury will “confuse legitimate
`business practices with evidence of guilt,” [id.] is unfounded. DBAs, post office boxes,
`and email addresses are not the type of evidence that “lure[s] the factfinder into declaring
`guilt on a ground different from proof specific to the offense charged.” Old Chief v. United
`States, 519 U.S. 172, 180 (1997). In the instant case, the government contends that the
`large number of DBAs and post office boxes used by the defendants was unusual and,
`along with defendants’ concerted efforts to hide the identity of who was using the hijacked
`IP addresses to send spam, evidence of their knowledge and intent. Business practices that
`may be lawful can nonetheless be “probative of fraudulent intent.” United States v. Joetzki,
`952 F.2d 1090, 1094 (9th Cir. 1991). As for defendants’ use of email addresses bearing
`stolen identities or fake names, the government’s position is that this practice is neither
`common nor presumptively lawful. It is, however, also not unduly prejudicial. See, e.g.,
`Hardgraves, 2015 WL 13389947 at *2; Duranseau, 19 F.3d at 1120-21.
`Finally, neither of the two cases cited by the defense justify their request for a jury
`instruction “that the mere use of DBAs, post office boxes, and email addresses under
`different names are lawful and common business practices.” [ECF No. 356-1 at 7.] In
`United States v. Lui, 941 F.2d 844, 848 (9th Cir. 1991), the Ninth Circuit ruled that a DEA
`Agent’s testimony regarding drug courier profiles was unduly prejudicial. The government
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`18cr4683-GPC
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`is not introducing profile evidence in this case, so no corresponding limiting instruction is
`needed. United States v. Marr, No. 14-CR-00580-PJH, 2017 WL 1540815, at *22 (N.D.
`Cal. Apr. 28, 2017) was a Sherman Act conspiracy involving bid rigging where the
`government alleged that defendants’ participation in preliminary bidding rounds leading
`up to the ultimate auction price were overt acts that were themselves illegal. The district
`court, after pointing out that “overt acts need not be unlawful,” disagreed with the
`government that the preliminary bids were themselves unlawful, ordered the parties to
`confer on a revised bid rigging jury instruction, and cautioned that, if the governm