Case 3:18-cr-04683-GPC Document 380 Filed 04/04/22 PageID.5414 Page 1 of 3
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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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`UNITED STATES’
`
`Plaintiff,
`SUPPLEMENTAL LEGAL
`
`AUTHORITY IN SUPPORT OF
`v.
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`MOTION IN LIMINE TO
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`EXCLUDE EVIDENCE OF
`JACOB BYCHAK (1),
`IMMIGRATION STATUS
`MARK MANOOGIAN (2),
`ABDUL MOHAMMED QAYYUM (3), and
`PETR PACAS (4),
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`Defendants.
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`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
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`Case 3:18-cr-04683-GPC Document 380 Filed 04/04/22 PageID.5415 Page 2 of 3
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`Section Senior Counsel Candy Heath, and hereby files its Supplemental Legal Authority
`in Support of its Motion in Limine to Exclude Evidence of Immigration Status.
`I.
`INTRODUCTION
` Motions in limine were due to be filed in this case on March 24, 2022. On that date,
`the United States filed, among others, a motion to exclude evidence of the immigration
`status of the defendants. On March 28, 2022, four days after motions were filed, the Ninth
`Circuit issued its opinion in United States v. Kvashuk, No. 20-30251. _ F.4th _ (9th
`Cir.2022), which directly addressed the issue regarding the exclusion of evidence of
`immigration status raised in the Government’s motion in limine.
`II.
`POINTS AND AUTHORITIES
`Defendant Kvashuk was a Ukrainian who was convicted of a variety of fraud
`charges, including mail fraud, wire fraud, and identity theft in relation to crimes committed
`during his employment at Microsoft. The defendant stole $8.2 million of tokens for digital
`Microsoft gift cards, using internal Microsoft test accounts. The defendant exchanged some
`of the gift cards for bitcoin (cryptocurrency). The defendant, who had filed for asylum in
`the United States, argued that he possessed the bitcoin because his father sent him bitcoin
`instead of cash to avoid detection by the Ukrainian government.
`The government moved in limine to exclude evidence of the Kvashuk’s immigration
`status and asylum claim under Rule 403 of the Federal Rules of Evidence. The district
`judge granted the motion, but allowed the defendant to testify that he is “from the Ukraine”
`and that he transferred the bitcoin to conceal the transfer from the Ukrainian government.
`The Ninth Circuit found that the “district court did not abuse it discretion in concluding,
`prior to trial, that any additional probative value in disclosing Kvashuk’s immigration
`status ‘would be substantially outweighed by the danger of unfair prejudice’ from the jury’s
`knowledge that ‘Kvashuk could suffer immigration consequences if convicted of the
`chargers.’” Kvashuk at 25. The same is true in this case.
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`Government’s Supplemental Legal Authority re:
`Motion In Limine to Exclude Immigration Status
`
`18cr4683-GPC
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`Case 3:18-cr-04683-GPC Document 380 Filed 04/04/22 PageID.5416 Page 3 of 3
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`Like the defendant in Kvashuk, the defendants here should be permitted to introduce
`evidence of their country of origin, but should not be permitted to introduce evidence of
`their immigration status. Unlike Kvashuk, the defendants in this case are in a far weaker
`position to seek to introduce evidence of their immigration status, as they have posited no
`reason the evidence of their immigration status is probative of anything relevant to their
`defense. The absent probative value of such evidence is “substantially outweighed by the
`danger of unfair prejudice’ from the jury’s knowledge that [defendants] could suffer
`immigration consequences if convicted of the chargers.” Id. Accordingly, evidence of the
`defendants’ immigration status should be excluded.
`III.
`CONCLUSION
`Based on this Ninth Circuit authority, and the authority in the Government’s original
`motion in limine, this court should exclude evidence of the defendants’ immigration status.
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`DATED: April 4, 2022
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`Respectfully submitted,
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`RANDY S. GROSSMAN
`United States Attorney
`
`/s/Melanie K. Pierson
`Assistant United States Attorney
`
`/s/Sabrina L. Fève
`Assistant United States Attorney
`
`/s/Candy Heath
`Senior Counsel
`Computer Crime and Intellectual Property Section
`Department of Justice, Criminal Division
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`Government’s Supplemental Legal Authority re:
`Motion In Limine to Exclude Immigration Status
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