Case 3:18-cr-04683-GPC Document 373 Filed 03/31/22 PageID.5375 Page 1 of 19
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`WIECHERT, MUNK &
`GOLDSTEIN, PC
`David W. Wiechert, SBN 94607
`Jessica C. Munk, SBN 238832
`Jahnavi Goldstein, SBN 245084
`27136 Paseo Espada, Suite B1123
`San Juan Capistrano, CA 92675
`Telephone: (949) 361-2822
`Email: dwiechert@aol.com
` jessica@wmgattorneys.com
` jahnavi@wmgattorneys.com
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`Attorneys for Jacob Bychak
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`MINTZ, LEVIN, COHN, FERRIS,
`GLOVSKYAND POPEO, P.C.
`Randy K. Jones, SBN 141711
`3580 Carmel Mountain Road, Suite 300
`San Diego, CA 92130
`Telephone: (858) 314-1510
`Email: rkjones@mintz.com
`
`Daniel J. Goodrich, BBO 692624 (Pro Hac)
`Ryan Dougherty, BBO 703380 (Pro Hac)
`1 Financial Center
`Boston, MA 02111
`djgoodrich@mintz.com
`rtdougherty@mintz.com
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`Attorney for Mark Manoogian
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`DEFENDANTS’ RESPONSE TO UNITED STATES’ MIL (DKT. NO. 351)
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`BIRD MARELLA BOXER WOLPERT
`BIENERT KATZMAN
`NESSIM DROOKS LINCENBERG
`LITTRELL WILLIAMS LLP
`RHOW P.C.
`Thomas H. Bienert, Jr., SBN 135311
`Gary S. Lincenberg, SBN 123058
`James D. Riddet, SBN 39826
`Alexis A. Wiseley, SBN 330100
`Whitney Z. Bernstein, SBN 304917
`Darren L. Patrick, SBN 310727
`Carlos A. Nevarez, SBN 324407
`1875 Century Park East, Floor 23
`903 Calle Amanecer, Suite 350
`Los Angeles, CA 90067
`San Clemente, California 92673
`Telephone: (310) 201-2100
`Telephone: (949) 369-3700
`Email: glincenberg@birdmarella.com
`Email: tbienert@bklwlaw.com
`awiseley@birdmarella.com
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` jriddet@bklwlaw.com
` dpatrick@birdmarella.com
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` wbernstein@bklwlaw.com
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` cnevarez@bklwlaw.com
`Attorneys for Petr Pacas
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`Attorneys for Mohammed Abdul Qayyum
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`Case 3:18-cr-04683-GPC Document 373 Filed 03/31/22 PageID.5376 Page 2 of 19
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF CALIFORNIA
`
`Plaintiff,
`
`UNITED STATES OF AMERICA,
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`
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`v.
`
`JACOB BYCHAK, et al.,
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` Defendants.
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`
`
`
`Case No. 18-CR-4683-GPC
`Honorable Gonzalo P. Curiel
`
`DEFENDANTS’ RESPONSE TO
`UNITED STATES’ MOTIONS IN
`LIMINE (DKT. 351) FOR:
`
`
`(1) RULINGS ON OBJECTIONS &
`EXHIBITS DURING DEPOSITION
`TESTIMONY OF LWT; AND
`(2) RULINGS ON OBJECTIONS &
`EXHIBITS DURING DEPOSITION
`TESTIMONY OF SAD
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`Hearing Date: April 7, 2022
`Hearing Time: 1:00 p.m.
`Department: Courtroom 2D
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`I.
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`INTRODUCTION
`On June 23, 2021, the government moved for Rule 15(a) Depositions of two
`witnesses, LWT and SAD. Dkt. No. 242. Defendants agreed to the Rule 15 deposition of
`LWT given her serious medical condition and the government’s representations that the
`defense was provided “all discovery (Rule 16, Jencks, Brady, Giglio) in the possession of
`the United States” for LWT. See Under Seal Response to Government’s Motion for Rule
`15 Depositions. However, Defendants initially objected to the Rule 15 deposition of SAD
`as the government had not met its burden that exceptional circumstances exist to take the
`Rule 15 deposition of SAD. Id. The Court agreed and denied the motion without
`prejudice, allowing the government to file a supplemental motion with medical documents
`for SAD. Dkt. No. 254. The government subsequently filed supplemental papers under
`seal in support of the deposition for SAD. On August 20, 2021, at a hearing on other
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`matters, the Defendants did not object to the Rule 15 deposition of SAD and the Court
`granted the government’s request. Dkt. No. 275. After the depositions of LWT and SAD
`were taken, the parties stipulated that these two government witnesses were unable to
`appear and testify at trial due to medical infirmity. Dkt. No. 285. The government now
`moves this Court to admit the sworn deposition testimony at trial. The parties have met
`and conferred and agreed to a number of redactions. The Defendants respond herein to the
`outstanding objections addressed in the government’s motion in limine at Dkt. No. 351.
`II. RULE 15 DEPOSITIONS
`Federal Rule of Criminal Procedure Rule 15(e) provides: “unless these rules or the
`court orders otherwise, a deposition must be taken and filed in the same manner as a
`deposition in a civil action” with certain exceptions, including that “[t]he scope and
`manner of the deposition examination and cross-examination must be the same as would
`be allowed during trial.” Fed. R. Crim. P. 15(e)(2). Federal Rule of Civil Procedure Rule
`32(d)(3)(A) provides:
`An objection to a deponent’s competence—or to the competence, relevance,
`or materiality of testimony—is not waived by a failure to make the
`objection before or during the deposition, unless the ground for it might
`have been corrected at that time.
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`(Emphasis added). Courts have routinely found that relevance objections cannot be
`waived during a deposition. See Haiping Su v. United States, No. C09-02838 EJD HRL,
`2012 WL 1094642, at *1 (N.D. Cal. Mar. 29, 2012) (“Although defendants did not assert
`relevance objections during Waddell’s deposition, that objection has not been waived.”)
`(citing In re Stratosphere Corp. Securities Litig., 182 F.R.D. 614, 618 (D. Nev.1998) (“It
`is usually not necessary to make an objection based upon irrelevancy.... It is difficult to
`conceive of the likelihood that a question which calls for irrelevant information can be
`‘cured’ by restating the question, unless the question is changed to ask for relevant (i.e.,
`different) information. … Thus, the objecting party may wait until trial (or just prior to
`trial) to make the objection when, and if, the deposition testimony is offered into
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`evidence.”)); see also United States v. Jefferson, 594 F. Supp. 2d 655, 668 n.18 (E.D. Va.
`2009) (Rule 15 is interpreted “so as not to infringe defendant’s [constitutional rights] in
`any way.”).
`A. The Deposition of LWT
`1. The Contested Proposed Redactions Have Not Been Waived
`The government first disputes four proposed redactions to LWT’s testimony by
`Defendants, arguing the Defendants waived any challenge to the testimony by not raising
`objections to it during the deposition of LWT. See Dkt. No. 351 at 3. However, even the
`government admits in a footnote that certain objections cannot be waived, such as
`relevance. Dkt. No. 351 at 3, n.1; see also Fed. R. Civ. P. Rule 32(d)(3)(A); Haiping Su,
`2012 WL 1094642 at *1. Thus, the Defendants respectfully request that the Court redact
`the following testimony:
`a. ECT’s Purpose/Mission Is Irrelevant – page 12:20-13:3
`During LWT’s deposition, the government asked the witness: (1) “What was the
`purpose or mission of Educational & Corporate Technologies, Inc.[“ETC”]?” (Dkt. 351-1
`at 12:20-21); (2) “Did the company provide in-service workshops and training on how to
`use computers?” (id. at 12:23-24); and (3) “Was that training for educators?” Id. at 13:1.
`Defendants object to these questions and LWT’s answers as this line of questioning is
`irrelevant. Under FRE 401, evidence is relevant if it has any tendency to make the
`existence of any fact that is of consequence to the determination of the action more
`probable or less probable than it would be without the evidence. Fed. R. Evid. 401.
`Evidence that is not relevant is not admissible. See Fed. R. Evid. 402.
`Here, the purpose or mission of ECT and whether ECT provided computer training
`to schools and training for educators does not make any fact that is of consequence, i.e.
`the charges in the Indictment, more or less probable than it would be without the
`evidence. Instead, the government appears to want to garner sympathy for LWT and ECT
`by suggesting that they provided some invaluable service, i.e. “educational services.”
`Under FRE 403, evidence, even if relevant, may be excluded if its probative value is
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`substantially outweighed by the danger of unfair prejudice. Not only is this testimony
`irrelevant, but the danger of invoking an emotional response in the jury for LWT because
`ECT provided educational services is prejudicial and outweighs any probative value.
`Accordingly, page 12, line 20 through page 13, line 3 should be redacted.
`b. LWT’s Testimony regarding Research Conducted by Attorneys Is
`Nonresponsive and Confusing – page 35:8-12
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`During cross-examination, LWT was asked: “other than the act of acquiring the
`netblock for free, do you have personal knowledge regarding any other circumstances
`related to Mr. Lynn’s effort to acquire the netblock?” Dkt. 351-1 at 35:4-7. LWT then
`responded: “I know that there was research conducted by attorneys who went to the State
`Department to research that.” Id. at 35:8-10. LWT’s response was nonresponsive and
`should be stricken. FRE 403 also provides that evidence may be excluded if its probative
`value is substantially outweighed by the danger of confusion of the issues or misleading
`the jury. Here, LWT’s testimony about research conducted by attorneys is not only
`nonresponsive but is also confusing and likely will mislead the jury because, as LWT
`subsequently explained, no attorney research was conducted at the time the netblock was
`acquired. Accordingly, the Court should redact this testimony at page 35, lines 8-10.
`Similarly, the follow-up question, “And this was in 1993?,” and LWT’s response of “no”
`(id. at 35:11-12) should similarly be redacted.
`c. Defendants Objected to Whether LWT Believed the Netblock was an
`Asset and that Testimony Should be Redacted – page 39:12-16
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`In addition, the Defendants properly objected to LWT’s testimony whether she
`believed the IP addresses were assets. The government asked LWT:
`Q: Do you consider the IP addresses that were the subject of Government
`Exhibits 303 and 304 to have been assets?
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`Ms. Munk: Object to vague.
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`Ms. Van Dyk: Lacks foundation.
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`Case 3:18-cr-04683-GPC Document 373 Filed 03/31/22 PageID.5380 Page 6 of 19
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`The witness: I considered them assets.
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`Dkt. 351-1 at 23:24-24:4. The argument as to why the Court should sustain these
`objections is addressed below. During cross-examination, LWT was asked questions
`about her prior testimony regarding her belief that the IP addresses were assets. LWT was
`asked:
`Q: … I believe, you testified that you thought it was an asset, but I just want
`to clarify: If you thought it was an asset, you still believed it didn’t have
`value prior to 2016?
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`The witness: I believe that is correct.
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`Dkt. 351-1 at 39:12-16 (emphasis added). Defense counsel had to ask this question in case
`the Court decided to overrule its prior objections that LWT could testify whether she
`believed the IP addresses were assets. However, if the Court sustains the objections to
`LWT testifying about her belief that the IP addresses were assets, then it should also
`redact this questioning at page 39, lines 12-16 because it would similarly be inadmissible.
`d. LWT Abruptly Stating She Has Had a Stroke Is Irrelevant and Highly
`Prejudicial – page 51:15-20
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`Finally, and quite surprisingly, the government wants to admit a nonresponsive
`outburst by LWT: “Are you aware of the fact that I’ve had a stroke and I’m doing the best
`I can?” This is not only irrelevant and inadmissible under FRE 402, but it appears the
`government wants the jurors to react more sympathetically to LWT because she has had a
`stroke. While there is no probative value to this testimony, it is very likely to cause unfair
`prejudice to the Defendants and should also be excluded under FRE 403. Accordingly, the
`testimony at page 51, lines 15-20 should be excluded under FRE 402 and 403.
`2. LWT’s Testimony that She Has Not Spoken to the Defendants Is Not Vague
`or Confusing – page 49:4-11
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`Next, the government argues that LWT cannot testify to the fact that she has “never
`met or spoken to [Defendant] Abdul Qayyum” (Dkt. 351-1 at 49:4-5) and this is somehow
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`vague or confusing because LWT says she has never “spoken to … any of those people in
`this book.” Id. at 49:8-11. The government argues LWT’s testimony to “‘the book’ has a
`strong potential to confuse or mislead the jury into assuming that it refers to “the book of
`all trial exhibits, rather than the book with a limited number of exhibits for the deposition
`that was presented to the witness.” Dkt. 351 at 4. However, it was later clarified by
`defense counsel that when LWT testified she had “never spoken to any of the people ‘in
`the book,’” she meant “the people in Government Exhibits 190 to 195.” Dkt. 351-1 at
`52:12-15. The people in Government Exhibits 190-193 were Defendants Mark
`Manoogian, Jacob Bychak, Mohammed Abdul Qayyum, and Petr Pacas, respectively.1
`LWT testified “I do not believe I have spoken to any of the people pictured on those
`exhibits.” Id. at 52:19-20. Accordingly, LWT’s testimony is clear that she had not spoken
`to any of the people shown in Government Exhibits 190-195 and the government’s
`objection that LWT’s testimony at page 49, lines 4-11 is vague and confusing should be
`overruled.
`3. Defendants’ Additional Objections Should Be Sustained
`Finally, the Court should sustain the following defense objections:
`a. LWT’s Belief Whether the IP Addresses are Assets is Inadmissible –
`pages 23:24-24:4
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`The government attempted to solicit an expert opinion from LWT whether she
`considered the IP addresses “to have been corporate assets.” Dkt. 351-1 at 23:24-24:1.
`Defendants objected that the question was vague and also lacked foundation. Id. at 24:2-3.
`A central issue in this case is whether IP addresses are property under the wire fraud
`statute. 18 U.S.C. § 1343. Here, the government is trying to improperly solicit an expert
`opinion that IP addresses are property because LWT considered it a “corporate asset.”
`Accordingly, there is no foundation for LWT to testify to this belief. Further, the
`government’s reference to “assets” is also vague. Thus, the Court should sustain
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`1 Exhibits 194-195 were photographs of Daniel Dye and Vincent Tarney.
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`Defendants’ objections.
`b. LWT’s Testimony About What a Lawyer and Broker Told Her Is
`Inadmissible Hearsay/Lack Personal Knowledge – page 25:5-14
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`The government also asked LWT: “Do you know how the broker who represented
`you determined that you owned these IP addresses?” Dkt. 351-1 at 25:5-7. LWT
`responded with hearsay: “The broker hired an attorney or attorneys to go to the California
`Department, and he met with the Secretary of State’s staff. He reviewed the files and did
`research and assured me that the ownership was indeed Educational & Corporate
`Technologies, Inc.” Id. at 25:8-12 (emphasis added). Defendants objected “to hearsay as
`well as lack of personal knowledge.” Id. at 25:13-14. The government acknowledges that
`the attorney’s statement to LWT regarding ownership “is an out of court statement” but
`argues “it is not offered for the truth of the matter asserted (i.e., that LWT was the owner
`of the netblock).” Dkt. 351 at 5:19-20. However, that is exactly what the government is
`trying to show. Instead, the government argues that it is being offered “for the effect on
`the listener (i.e., [LWT] understood she was the rightful owner)” (id. at 5:20-21), but this
`shows the government’s true purpose to admit inadmissible hearsay that she was the
`owner of the IP addresses. Fed. R. Evid. 802. The Court should sustain the objection as
`inadmissible hearsay and given that LWT does not have personal knowledge of what the
`attorney did, also sustain the objection for lack of knowledge. Accordingly, the testimony
`on page 25, lines 5-14 should be redacted as the testimony is inadmissible hearsay and the
`witness lacks personal knowledge.
`c. LWT’s Testimony About Any Impact to ECT and Her Feelings Is
`Irrelevant and Inadmissible – pages 31:10-32:3
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`The government also asked LWT:
`Q. What impact, if any, do you believe the use of Educational & Corporate
`Technology, Inc.’s name to send unsolicited commercial e-mail messages
`would have had on the company?
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`Ms. Munk: Object. Foundation.
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`The witness: The image of the company was that it was straightforward; it
`was true; it had a trust that people recognized, and anything less than that
`would have been harmful.
`
`Q. How do you feel seeing Government Exhibit 41 bearing Educational &
`Corporate Technologies’ name without your knowledge and consent?
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`Ms. Munk: Object. Irrelevant. Vague.
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`The witness: When this letter was presented to me, I was shocked. I felt that
`it was totally incorrect. I felt violated, and it was certainly not anything of
`trust.
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`Ms. Feve: Thank you, ma’am.
`Dkt. 351-1 at 31:10-32:3.
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`This line of questioning by the government is inappropriate and inadmissible.
`The first question asked by the government about what impact, if any, does LWT
`believe the use of ECT’s name to send unsolicited commercial email messages
`would have had on the company is improper – there is simply no foundation for this
`hypothetical and any answer is purely speculative. The government argues that
`“[v]ictims of fraud are permitted to testify at trial about how they were affected by
`the crime.” Dkt. 351 at 6:2-3 (citing United States v. Green, 428 F.3d 1131, 1134
`(8th Cir. 2005). However, LWT herself testified that she had never met or spoken to
`Defendants. Dkt. 351-1 at 52:10-20. Accordingly, there were no misrepresentations
`made to LWT to influence her to part with her IP addresses – a necessary element
`of wire fraud. Cf. United States v. Bergquist, 91 F.3d 155 (9th Cir. 1996) (holding
`the admission of victims’ testimony about the impact of defendants’ behavior on
`their financial situation was not erroneous because it supported an element of wire
`fraud).
`Further, LWT’s testimony regarding her feelings about seeing government’s
`Exhibit 41, an LOA with ECT’s name on it, is irrelevant and inadmissible under
`FRE 402. There is no probative value in this line of questioning. Moreover, this
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`questioning is highly prejudicial and should also be excluded under FRE 403. Thus,
`the Court should sustain Defendants’ objections and redact page 31, line 10 through
`page 32, line 3.
`4. The Government Concedes Page 49:12-18 Should Be Excluded
`Lastly, the government highlighted the testimony on page 49, lines 12-18 in red, but
`failed to address it in their papers, and appear to agree that that testimony should be
`excluded. During that portion of the deposition, defense counsel mentioned, “I have to ask
`the questions” and the government objected to “asked and answered” and LWT responded
`“I want to be sure I’m answering you correctly. If I don’t know their names, no, I’ve not
`spoken with anybody in the book.” Dkt. 351-1 at 49:12-18. Given that LWT’s testimony
`was not responsive to a question and the government’s objection, the Court should redact
`page 49, lines 12-18.
`B. The Deposition of SAD
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`1. The Totality of SAD’s Evasive and Nonresponsive Testimony is Relevant
`and Admissible – Pages 109:14-22 and 174:8-22
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`The government argues that defense counsel’s objections and questions were
`argumentative and suggestive and therefore should be excluded. That argument fails.
`Defense counsel made proper objections in light of SAD’s nonresponsive and evasive
`testimony. The full transcript of SAD’s testimony is necessary in order for the jury to
`accurately consider the witness’s testimony, demeanor, and credibility.
`The government cites no pertinent case law to support its position that the
`referenced portions of the transcript should be excluded. SAD’s deposition was conducted
`pursuant to Rule 15 of the Federal Rules of Criminal Procedure because of the witness’s
`infirmity and inability to travel to California for trial. Rule 15(e) directs that “[t]he scope
`and manner of the deposition examination and cross-examination must be the same as
`would be allowed during trial.” Fed. R. Crim. P. 15(e)(2). The totality of the transcript
`reflects that SAD was evasive and nonresponsive to the questions posed by defense
`counsel. SAD’s inability to answer basic questions required defense counsel to lodge
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`several objections for the Court’s consideration. These objections were concise and non-
`argumentative. See Rule 30(c)(2) (“An objection at the time of the examination—whether
`to evidence, to a party’s conduct, to the officer’s qualifications, to the manner of taking
`the deposition, or to any other aspect of the deposition—must be noted on the record.”).
`Moreover, the only equitable and constitutionally sound way for the jury to
`contemplate the totality of this witnesses’ testimony is to simulate what they would have
`heard at trial. See generally Jefferson, 594 F. Supp. 2d at 688. Because the witness
`testified in a controlled environment, he was not subject to the pressures of testifying live
`at trial. If the edited deposition video is to be shown at trial, the jury must be able to view
`and consider SAD’s demeanor when he was pressed on his evasive answers and rude
`conduct. See United States v. Crittenden, No. 4:20-CR-7 (CDL), 2020 U.S. Dist. LEXIS
`151950, at *20 (M.D. Ga. Aug. 21, 2020) (“Demeanor includes the language of the entire
`body … how the witnesses move when they answer a question; how the witnesses
`hesitate; how fast the witnesses speak … [how] witnesses blink or roll their eyes, make
`furtive glances, and tilt their heads.”).
`In addition, the “Doctrine of Completeness” requires that defense counsel’s non-
`argumentative questions and objections be admissible to give context to SAD’s testimony.
`Federal Rule of Evidence 106 is especially important when pertaining to the use of a
`deposition at trial. SAD’s testimony is incomplete and out of context without defense
`counsel’s questions and objections to the witness’s testimony. See Trepel v. Roadway
`Express, Inc., 194 F.3d 708 (1999) (district court abused its discretion when admitting
`only limited portion of plaintiff’s deposition testimony, without admitting enough of
`surrounding testimony to put admitted portion into context). If the jury is to view an
`edited video deposition of SAD, it must be permitted to see the whole picture, which
`includes the witness’s refusal to answer defense counsel’s questions, his evasiveness in
`testifying, and his demeanor during cross-examination. See United States v. Costner, 684
`F.2d 370, 373 (6th Cir. 1982) (“The general rule is that if one party to litigation puts in
`evidence part of a document, or a correspondence or a conversation, which is detrimental
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`to the opposing party, the latter may introduce the balance of the document,
`correspondence or conversation in order to explain or rebut the adverse inferences which
`might arise from the incomplete character of the evidence introduced by his adversary”);
`see also United States v. Wilson, 36 F. Supp. 2d 1177, 1180 (N.D. Cal. 1999) (Rule 15
`testimony “must also bear sufficient indicia of reliability” and “[i]ndicia of reliability are
`those aspects of the circumstances surrounding the proffered testimony that offer
`assurances that the jury will be able to determine the truthfulness of the witness and the
`weight to be accorded to his testimony”). The totality of SAD’s testimony must be
`admitted to give context to his answers and so that the jury can accurately assess his
`credibility.
`2. Testimony Regarding Email Communications Between SAD and the
`Government is Relevant and Admissible
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`The government argues that portions of defense counsel’s cross examination
`amounted to impermissible hearsay. This argument fails because SAD’s statements are
`admissible as non-hearsay, or in the alternative, are admissible under FRE 803(3).
` Throughout SAD’s deposition, defense counsel cross-examined SAD regarding his
`email communications with the government. In those emails, SAD stated that: (1) he was
`not a victim; (2) he wanted to be removed from the Government’s witness list [SAD Tr.
`95:3-5; 106:3-5]; (3) he wanted the government to “feel the pain that they [were] putting
`[him] through” [id. 93:4-8]; (4) he did not “trust the prosecutor” because “[s]he comes
`across … as only wanting victories in her court cases” [id. 98:12-16]; and (5) he would
`“only testify under duress caused by the state’s attorney” [id. 122:22-24].
`The statements are not hearsay because they are not offered to prove the truth of the
`matter asserted, but rather the declarant’s state of mind. See United States v. Herrera, 600
`F.2d 502, 504 (5th Cir. 1979) (evidence which would otherwise be hearsay is admissible
`as bearing on state of mind of declarant if not offered for the truth of statement). In other
`words, SAD’s testimony demonstrates that he believed that he was not a victim of any
`crime. SAD also made statements to the government that he did not want to be involved
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`with this case, and the government pressed on anyway – which supports the defense’s
`argument that the government is overreaching with this prosecution. See United States v.
`Simmons, 11 F.4th 239, 263-64 (4th Cir. 2021) (there was no error in permitting the jury
`to hear a phone call because the call was not “hearsay,” as the Government did not offer it
`for the truth of the matter asserted but to prove the effect that a caller’s words had on their
`eventual listener); United States v. Johnson, 449 F. App’x 149, 152 (3d Cir. 2011) (law
`enforcement agent’s testimony that non-testifying witnesses were angry toward husband
`and wife who had collected loan application fees but issued no loans was not hearsay
`because it concerned declarants’ then-existing state of mind or emotion).
`SAD’s statements are also admissible under FRE 803(3) because the emails show
`SAD’s then-existing mental and emotional conditions – that he was upset, distrustful of
`the government, he did not feel like he had been victimized, and that the treatment by the
`government was causing a manifestation of anxiety. See United States v. Sablan, No. 00-
`cr-00531-WYD, 2008 U.S. Dist. LEXIS 23537, at *69 (D. Colo. Mar. 13, 2008) (portions
`of letter deemed admissible where declarant stated that he was scared); United States v.
`Green, 680 F.2d 520, 523 (7th Cir. 1982) (statement of kidnapping victim that the accused
`“is still bothering me” indicated she was nervous and upset, and thus fell within the
`exception to the hearsay rule.).
`Therefore, the emails identified in Exhibits A and B, and the testimony regarding
`Exhibits A, B, and C are not hearsay and should be admitted into evidence.
`3. Evidence and Exhibits Related to SAD’s Displeasure Regarding Travel to
`San Diego to Testify are Relevant and Admissible - Pages 92-100, 104-116,
`and 120-132
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`The government seeks to “exclude from the jury’s view any testimony elicited
`regarding SAD’s personal travel plans and SAD’s email communications with the
`government regarding his displeasure with the government in having to travel” to San
`Diego. The government’s request should be denied. This evidence is highly relevant amd
`admissible because it goes to SAD’s credibility and is probative of the government’s
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`overreaching in this case.
`All relevant evidence is admissible subject to specific exceptions. Fed. R. Evid.
`402. Federal Rule of Evidence 401 states that evidence is relevant if it has any tendency to
`make the existence of any fact that is of consequence to the determination of the action
`more probable or less probable than it would be without the evidence. In his testimony,
`SAD stated that he did not want to travel because he did not trust the government, the
`prosecutor “comes across … as only wanting victories in her court cases,” and that he was
`not a victim. This testimony is relevant to prove that: the government has acted
`improperly throughout this investigation and prosecution (the subject of pending motions
`to dismiss and suppress (see ECF Nos. 329 & 330)); the government is overreaching with
`this prosecution; and the charged conduct is a victimless crime. Had the witness been
`forced to testify in person, these questions would certainly come up and the jury would be
`able to judge his demeanor and credibility. Therefore, the testimony should not be
`excluded.
`4. The Remaining Defense Objections Should be Sustained
`The government argues that numerous defense objections should be denied and that
`SAD’s corresponding testimony and documents should be admitted. In particular, the
`government contends that: (1) two business records pertaining to the assignment of the
`netblocks should be admitted [24:7-29:6]; (2) testimony regarding Moore Products’ use of
`the netblocks should be admitted [37:38]; (3) SAD’s testimony that the Moore Products
`netblock transferred to Siemens should be admitted; and (4) SAD’s statement that a letter
`of authorization was “a complete forgery” should be admitted.
`First, the purported business records (government exhibits 6 and 7) are not
`admissible because SAD did not provide the proper foundation and the documents are
`inadmissible hearsay. It is true that exhibits can be admitted as business records of an
`entity, even when that entity was not the maker of those records, but only if “requirements
`of Rule 803(6) are met and the circumstances indicate the records are trustworthy.”
`United States v. Jakobetz, 955 F.2d 786, 801 (2d Cir. 1992). Here, the requirements of
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