Case 3:18-cr-04683-GPC Document 387 Filed 04/15/22 PageID.5890 Page 1 of 8
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`BIENERT KATZMAN LITTRELL
`WILLIAMS LLP
`Thomas H. Bienert, Jr., SBN 135311
`James D. Riddet, SBN 39826
`Whitney Z. Bernstein, SBN 304917
`Carlos A. Nevarez, SBN 324407
`903 Calle Amanecer, Suite 350
`San Clemente, California 92673
`Telephone: (949) 369-3700
`Email: tbienert@bklwlaw.com
` jriddet@bklwlaw.com
` wbernstein@bklwlaw.com
` cnevarez@bklwlaw.com
`Attorneys for Mohammed Abdul Qayyum
`
`WIECHERT, MUNK & GOLDSTEIN, PC
`David W. Wiechert, SBN 94607
`Jessica C. Munk, SBN 238832
`William J. Migler, SBN 318518
`27136 Paseo Espada, Suite B1123
`San Juan Capistrano, CA 92675
`Telephone: (949) 361-2822
`Email: dwiechert@aol.com
` jessica@wmgattorneys.com
` william@wmgattorneys.com
`
`Attorneys for Jacob Bychak
`
`BIRD MARELLA BOXER
`WOLPERT NESSIM DROOKS
`LINCENBERG & RHOW, P.C.
`Gary S. Lincenberg, SBN 123058
`Nicole Rodriguez Van Dyk, SBN 261646
`Darren L. Patrick, SBN 310727
`Alexis A. Wiseley, SBN 330100
`1875 Century Park East, Floor 23
`Los Angeles, CA 90067
`Telephone: (310) 201-2100
`Email: glincenberg@birdmarella.com
`nvandyk@birdmarella.com
`fpatrick@birdmarella.com
`awiseley@birdmarella.com
`Attorneys for Petr Pacas
`
`MINTZ, LEVIN, COHN, FERRIS,
`GLOVSKY AND 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
`Email: djgoodrich@mintz.com
` rtdougherty@mintz.com
`Attorneys for Mark Manoogian
`
`18-cr-04683-GCP
`DEFENDANTS’ SUPPLEMENTAL MOTION IN LIMINE TO PRECLUDE REFERENCES TO
`“HIJACKING” OR “HIJACKED” DURING TRIAL
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF CALIFORNIA
`
`UNITED STATES OF AMERICA,
`Plaintiff,
`
`v.
`JACOB BYCHAK et al.,
`Defendants
`
`Case No. 3:18-cr-04683-GPC
`Hon. Gonzalo P. Curiel
`DEFENDANTS’ SUPPLEMENTAL
`MOTION IN LIMINE TO PRECLUDE
`REFERENCES TO “HIJACKING” OR
`“HIJACKED” DURING TRIAL
`Date: April 26, 2022
`Time: 1:30 p.m.
`Dept.: 2D
`
`Pursuant to Fed. R. Evid. 403, Defendants move for an order: (1) precluding the
`government and its witnesses from using the terms “hijacking” or “hijacked” during trial
`when referencing to netblocks or Internet protocol (“IP”) addresses; and (2) directing the
`government and its witnesses to instead use the phrase “use/using without authorization.”1
`The Court should enter this order because the terms “hijacking” and “hijacked” are
`highly inflammatory, prejudicial, emotionally-charged, and evocative of acts unrelated to
`the issues in our matter such that Defendants will be deprived of a fair trial, particularly
`
`1 Defendants did not file this motion earlier, hoping the government would have used neutral
`phrasing rather than the inflammatory and prejudicial terms “hijacked” and “hijacking.”
`However, the government’s use of the inflammatory and prejudicial terms at the
`April 11, 2022 hearing compel Defendants to file this motion.
`1
`DEFENDANTS’ SUPPLEMENTAL MOTION IN LIMINE TO PRECLUDE REFERENCES TO
`“HIJACKING” OR “HIJACKED” DURING TRIAL
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`

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`Case 3:18-cr-04683-GPC Document 387 Filed 04/15/22 PageID.5892 Page 3 of 8
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`when one of the defendants is named “Mohammed Abdul Qayyum” and the jury pool is
`drawn from an area with a significant military presence.
`Based on recent oral argument doubling down on hyperbolic phrases in its pleadings,
`it is clear that the government and its witnesses intend to use the terms “hijacked” and
`“hijacking” indiscriminately. See, e.g., Dkt. No. 347 at 4-5 (“…GetAds IP blocks listed
`in Grand Jury Exhibit 251 were hijacked,” “Evidence relating to these hijacked IP
`blocks…,” “The defendants’ acquisition and use of the hijacked AFRINIC netblocks…,”
`“the ‘AirSea Freight Services’ announcement involved hijacked IP addresses,” and “the
`hijacked GetAds netblocks”) (emphasis added).
`The Court should prohibit the government and its witnesses from using such
`inflammatory and prejudicial terms during trial. The government has previously made
`arguments based on dictionary definitions of words. See Dkt. No. 369 at 3-4, fns. 2 & 3.
`Similarly, the Court should consider the common dictionary definitions of the term “hijack”
`here. Merriam-Webster defines “hijack” to mean (a) “to steal (goods in transit) by
`stopping a vehicle”; (b) “to commandeer (a vehicle in transit)”; (c) “to stop and steal from
`(a vehicle in transit)”; and (d) “kidnap.”2 It cites the following examples: “[i]n June 1976,
`an Air France Airbus was hijacked … and flown at gunpoint,” “[a] man claiming to have
`a bomb attempted to hijack a Pegasus Airlines plane,” and “[p]olice are hunting two men
`who hijacked a truck at knifepoint.” See id. (emphasis in original).
`Likewise, Oxford Learner’s Dictionaries define “hijack” as “to use violence or
`threats to take control of a vehicle, especially a plane, in order to force it to travel to a
`different place or to demand something from a government” and use the term in the
`following examples: “The plane was hijacked by two armed men on a flight from Miami to
`San Juan” and “Demonstrators fear that the march could be hijacked by extremists.”3
`
`2 https://www.merriam-webster.com/dictionary/hijack.
`3 https://www.oxfordlearnersdictionaries.com/us/definition/american_english/hijack.
`2
`DEFENDANTS’ SUPPLEMENTAL MOTION IN LIMINE TO PRECLUDE REFERENCES TO
`“HIJACKING” OR “HIJACKED” DURING TRIAL
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`The common definitions of “hijack” and “hijacking” invoke the terrorist attacks of
`September 11, 2001, which would unfairly link Defendants to emotionally charged actions
`and events wholly unrelated to this case, thus depriving them of a fair trial; this is a
`particular concern here where one of the defendants has an identifiably Muslim name and
`the jury pool is drawn from areas known for a strong military presence. See, e.g., United
`States v. Elfgeeh, 515 F.3d 100, 127 (2d Cir. 2008) (“There can be little doubt that in the
`wake of the events of September 11, 2001, evidence linking a defendant to terrorism in a
`trial in which he is not charged with terrorism is likely to cause undue prejudice”);4 United
`States v. Odeh, No. 13-CR-20772, 2014 WL 5473042, at *8-10 (E.D. Mich. Oct. 27, 2014)
`(explaining “[i]t goes without saying that the American public is particularly emotional
`when it comes to terrorism and the threat of terrorism.”).
`Courts regularly preclude the use of loaded, inflammatory terms at trial, particularly
`when such terms are not a part of the charged offense. See, e.g., United States v. Diaz, No.
`213CR00148JADGWF, 2014 WL 12708688, at *3-4 (D. Nev. Apr. 14, 2014) (barring
`reference to the defendants’ activities as “organized crime” in “light of the obvious stigma
`attached to” the phrase, and where the phrase is “gratuitously inflammatory” and there were
`“no racketeering charges in this case”); United States v. Dimora, 843 F. Supp. 2d 799, 848
`(N.D. Ohio 2012) (precluding government from using the word “godfather” when referring
`to the defendant because the characterization had “the very real potential of being
`‘improperly transformed ... to invoke negative and sinister connotations, and to convey
`strong prejudicial overtones.’”) (citations omitted); Mosavi v. Mt. San Antonio Coll., 805 F.
`App’x 502, 505 (9th Cir. 2020) (upholding ruling excluding use of the term “rape” given
`that the connotations to a lay person would be unfairly prejudicial); United States v. Haynor,
`
`4 Though the Second Circuit in Elfgeeh concluded that the defendants were not entitled to
`a new trial based on an FBI agent’s two references to terrorism during a trial about the
`defendants’ alleged conspiracy to operate an unlicensed money-transmitting business, there
`is a significant danger here that the government and its witnesses would use the charged
`terms “hijacked” and “hijacking” more than twice, as demonstrated by the government’s
`filings.
`
`
`3
`
`DEFENDANTS’ SUPPLEMENTAL MOTION IN LIMINE TO PRECLUDE REFERENCES TO
`“HIJACKING” OR “HIJACKED” DURING TRIAL
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`

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`No. 1:09-CR-172, 2012 WL 5342410, at *7 (S.D. Ohio Oct. 29, 2012) (in response to
`defendant’s motion in limine seeking to prohibit the use of the term “sham” and other
`derogatory references when referring to a tax strategy, the court deferred ruling until the
`final pretrial conference but “share[d] [the defendant’s] concern that witnesses and
`documents stating that SLOTS was a ‘sham’ transaction, suffered from ‘fatal flaws,’ or
`using other similar derogatory terms, could cause unfair prejudice to both Defendants from
`the outset of the trial”).
`Instead of using such inflammatory and prejudicial terms, the government and its
`witnesses should use the phrase “use/using without authorization.”5 This terminology
`comports with the terms and phrases used in the Indictment. See Dkt. No. 1 at 2-3
`(conspirators allegedly created letters that “purported to authorize the use of a netblock not
`registered to the conspirators” and “defendants created and sent letters . . . fraudulently
`making it appear that the registrant of the IP addresses had authorized the defendants’ use
`of the IP addresses”). Moreover, the government itself used this phrasing when
`questioning a grand jury witness: “another way to hijack an IP and use it, in other words,
`using it without authorization, is that more or less the same thing?” See Exhibit A
`(irrelevant portions have been redacted) (filed under seal). There is no reason to define an
`inflammatory term just to then use the inflammatory shorthand, and to do so would violate
`Fed. R. Evid. 403.
`For the foregoing reasons, the Court should enter an order: (a) precluding the
`government and its witnesses from using the terms “hijacking” or “hijacked” during trial
`when referencing netblocks or IP addresses; and (b) directing the government and its
`witnesses to instead use the phrase “use/using without authorization.”
`/ / /
`/ / /
`
`5 https://www.spamhaus.org/news/article/778/network-hijacking-the-low-down (defining
`“network hijacking” as involving “the announcing or re-routing of Internet protocol
`(IP) addresses without authorization from the owner of those addresses”).
`4
`DEFENDANTS’ SUPPLEMENTAL MOTION IN LIMINE TO PRECLUDE REFERENCES TO
`“HIJACKING” OR “HIJACKED” DURING TRIAL
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`

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`Case 3:18-cr-04683-GPC Document 387 Filed 04/15/22 PageID.5895 Page 6 of 8
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`Dated: April 15, 2022
`
`Dated: April 15, 2022
`
`Respectfully submitted,
`BIENERT KATZMAN LITTRELL
`WILLIAMS LLP
`
`By: /s/ Whitney Z. Bernstein
`Thomas H. Bienert, Jr.
`James D. Riddet
`Whitney Z. Bernstein
`Carlos A. Nevarez
`Attorneys for Mohammed Abdul Qayyum
`
`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
`
`Dated: April 15, 2022
`
`WIECHERT, MUNK & GOLDSTEIN, PC
`
`Dated: April 15, 2022
`
`By: /s/ Jessica C. Munk
`David W. Wiechert
`Jessica C. Munk
`William J. Migler
`Attorneys for Jacob Bychak
`
`BIRD, MARELLA, BOXER, WOLPERT,
`NESSIM, DROOKS, LINCENBERT &
`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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`DEFENDANTS’ SUPPLEMENTAL MOTION IN LIMINE TO PRECLUDE REFERENCES TO
`“HIJACKING” OR “HIJACKED” DURING TRIAL
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`Case 3:18-cr-04683-GPC Document 387 Filed 04/15/22 PageID.5896 Page 7 of 8
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`CERTIFICATION OF AUTHORIZATION TO SIGN SIGNATURE
`The undersigned counsel of record for Defendant Abdul Mohammed Qayyum
`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.
`
`/s/ Whitney Z. Bernstein
` Whitney Z. Bernstein
`
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`CERTIFICATE OF AUTHORIZATION TO SIGN SIGNATURE
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`Case 3:18-cr-04683-GPC Document 387 Filed 04/15/22 PageID.5897 Page 8 of 8
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`CERTIFICATE OF SERVICE
`Counsel for Defendant Mohammed Abdul Qayyum certifies that the foregoing
`pleading has been electronically served on the following parties by virtue of their
`registration with the CM/ECF system:
`
`AUSA Melanie K. Pierson
`AUSA Sabrina L. Fève
`AUSA Ashley E. Goff
`U.S. Attorney’s Office
`880 Front Street, Rm 6293
`San Diego, CA 92101
`melanie.pierson@usdoj.gov
`sabrina.feve@usdoj.gov
`ashley.goff@usdoj.gov
`Candina S. Heath
`U.S. Department of Justice
`1301 New York Avenue NW, Suite 600
`Washington, DC 20530
`candina.heath2@usdoj.gov
`
`Dated: April 15, 2022
`
`/s/ Whitney Z. Bernstein
`Whitney Z. Bernstein
`
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`CERTIFICATE OF SERVICE
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