Case 3:18-cr-04683-GPC Document 403 Filed 05/05/22 PageID.6223 Page 1 of 15
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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
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`Attorneys For Mohammed Abdul Qayyum
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`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
` dpatrick@birdmarella.com
` awiseley@birdmarella.com
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`Attorneys For Petr Pacas
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`WIECHERT, MUNK &
`GOLDSTEIN, PC
`David W. Wiechert, SBN 94607
`Jessica C. Munk, SBN 238832
`27136 Paseo Espada, Suite B1123
`San Juan Capistrano, CA 92675
`Telephone: (949) 361-2822
`Email: dwiechert@aol.com
` jessica@wmgattorneys.com
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`Attorneys For Jacob Bychak
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`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
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`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
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`Attorneys For Mark Manoogian
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`18-cr-04683-GPC
`DEFENDANTS’ RESPONSE TO THE GOVERNMENT’S SUPPLEMENTAL NOTICE OF 404(b)
`EVIDENCE
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`Case 3:18-cr-04683-GPC Document 403 Filed 05/05/22 PageID.6224 Page 2 of 15
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF CALIFORNIA
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`
`UNITED STATES OF AMERICA,
`
`
`Plaintiff,
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`v.
`
`JACOB BYCHAK, et al.
`
`
`Defendants.
`
`Case No. 3:18-cr-04683-GPC
`Hon. Gonzalo P. Curiel
`
`DEFENDANTS’ RESPONSE TO THE
`GOVERNMENT’S SUPPLEMENTAL
`NOTICE OF 404(b) EVIDENCE
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`I.
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`INTRODUCTION.
`Nearly ten years into its investigation of the case, nearly four years after Defendants’
`request for 404(b) notice, despite extensive litigation for the past four years to ascertain the
`evidence at issue in this case from the government’s nearly three million pages of discovery,
`and despite the defense’s reliance on the government’s representations as to the scope of its
`case, on March 18, 2022, the government first noticed its intent to present evidence of
`African Registry of Internet Numbers (“AFRINIC”) netblocks. Dkt. No. 347. On April 11,
`2022, the Court seemed to appreciate the issues admission of this late-noticed evidence
`would cause to the currently set May 23, 2022 trial date. However, on April 26, 2022, the
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`DEFENDANTS’ RESPONSE TO THE GOVERNMENT’S SUPPLEMENTAL NOTICE OF 404(b)
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`Case 3:18-cr-04683-GPC Document 403 Filed 05/05/22 PageID.6225 Page 3 of 15
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`Court indicated that it was considering admitting the purported AFRINIC evidence and
`directed the government to specify the evidence it wants to present.
`As Defendants have explained, defending against the late-noticed AFRINIC
`evidence entails, at a minimum: (a) careful review of thousands of additional documents;
`(b) further investigation to find and contact the three brokers for those netblocks (one of
`whom is believed to reside in South Africa and another in India), the netblocks holders, and
`the AFRINIC president or another knowledgeable representative; and (c) substantial time
`commitment to schedule and prepare Rule 15 depositions for these potential defense
`witnesses. The government’s supplemental filing (Dkt. No. 398, the “404(b) Supplement”)
`does nothing to obviate these investigative needs. Further, the government’s proposed
`evidence fails to demonstrate that Defendants engaged in any criminal acts or knew that
`anything was improper with the AFRINIC netblocks and thus offers little probative value
`as to the charges.
`The 404(b) evidence concerns a seven-week period during which three of the
`Defendants and other Company A employees worked on a business deal to lease IP
`addresses registered on AFRINIC to a company called AirSea Freight (“AirSea”). Dkt. No.
`398 at 3. These IP addresses (the “AFRINIC IPs”) were offered to Company A by a broker
`named Dave Sales who worked at a company called Techvensys. Id. Based on a handful
`of ambiguous emails lacking meaningful detail and context, the government implies that
`Defendant Mark Manoogian had a hand in fabricating a letter of authorization (“LOA”)
`from AirSea, which Company A then used to announce the AFRINIC IPs with Hostwinds.
`See id. at 4:20-24. Critically, however, there are no emails or witness statements indicating
`that Defendant Manoogian forged the signature on the AirSea LOA or transmitted any
`fabricated documents to Sales, any other Defendant, or Company A employee.
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`DEFENDANTS’ RESPONSE TO THE GOVERNMENT’S SUPPLEMENTAL NOTICE OF 404(b)
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`Case 3:18-cr-04683-GPC Document 403 Filed 05/05/22 PageID.6226 Page 4 of 15
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`The government similarly makes much of the fact that Company A stopped
`announcing the AFRINIC IPs soon after they were “blocked” or placed on Spamhaus’s
`“block list.” Without any support, the government insinuates that when an IP address is
`placed on Spamhaus’s block list, it conclusively means that such IP address was used
`without authorization. Nevertheless, however hard it tries, Spamhaus does not make the law
`– the block list is not an indication of illegality. Further, as explained on the Spamhaus
`website, this reading is plainly wrong. Moreover, the 404(b) Supplement does not identify
`any emails or documents showing that the Defendants (or any other Company A employee)
`were told or otherwise knew that the AFRINIC IPs had been used without authorization.
`Consequently, there was nothing nefarious about Company A returning the AFRINIC IPs
`once their lease term had expired.
`Based alone on the absence of a solid evidentiary foundation or probative value, and
`the fact that unlike the GetAds transactions, these IP addresses were a lease, the Court
`should exclude the government’s confusing, prejudicial 404(b) evidence. But this belatedly
`noticed evidence is additionally prejudicial because it essentially requires the defense to
`prepare for complicated new allegations regarding the AFRINIC IPs after the government’s
`nearly ten-year-long investigation on the eve of trial. If the Court decides to admit this
`evidence, Defendants will be forced to file a motion to continue the May 23, 2022 trial date.
`Based upon the foregoing, and as further discussed below, Defendants ask that the Court
`exclude the proposed 404(b) evidence.
`II. THE PROPOSED 404(b) EVIDENCE IS IRRELEVANT, CONFUSING, AND
`ITS PROBATIVE VALUE IS NEGLIBLE.
`The government claims that the Defendants’ conduct relating to the AFRINIC IPs
`reveals their “intent, preparation, plan, knowledge, and absence of mistake” concerning
`their “misuse” of LOAs in the charged scheme. Dkt. No. 398 at 4. Accordingly, the
`government identifies various documents and email communications (see Exhibit 2 to the
`404(b) Supplement) in an effort to show that:
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`Case 3:18-cr-04683-GPC Document 403 Filed 05/05/22 PageID.6227 Page 5 of 15
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`1.
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`3.
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`4.
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`Defendant Manoogian had knowledge and access to tools “needed to prepare
`LOAs himself”;
`the Defendants’ decision to work with Peter Holden “is consistent” with the
`practice of using Holden and Tarney to announce the GetAds IPs;
`Company A’s decision to continue using the AFRINIC IPs after they were
`placed on Spamhaus’ block
`list (or
`informally, “SBL’d”)
`indicates
`Defendants’ “willingness” to use the GetAds netblocks without authorization
`and their “absence of mistake”; and
`The AFRINIC IPs transactions are somehow “intertwined and overlap[]” with
`the alleged scheme.
`See id. at 4-5. Behind the government’s 404(b) request, however, is an unfounded narrative
`that omits or befuddles critical details and concerns a series of leases that are materially
`distinguishable from the GetAds purchases charged in this case.
`A. The AFRINIC IPs were part of a lease agreement that was materially
`different from the GetAds purchases.
`As an initial matter, the 404(b) notice marks the first time in this case that the
`government identifies an issue regarding Company A’s IP address leases. This emerges
`out of the blue because the transactional backdrop of the AFRINIC IPs is materially
`different from the dealings between Company A and Daniel Dye and GetAds. Indeed, while
`the GetAds transactions concerned the purchase of IP addresses, the AFRINIC IPs were
`part of a short-term lease agreement – one of many that Company A routinely undertook
`to advance its business model of delivering commercial emails for major corporate clients
`like Olive Garden, Disney, and GEICO. Company A’s lease transactions moreover
`involved materially different procedures, materially different due diligence checks, and
`materially different price considerations. Another reason for this is that leased IP addresses
`had a substantially shorter shelf life. See Bernstein Decl. ¶ 2, Ex. A (For example, the lease
`agreement for one of the AFRINIC netblocks had a duration term of only one month).
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`DEFENDANTS’ RESPONSE TO THE GOVERNMENT’S SUPPLEMENTAL NOTICE OF 404(b)
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`Case 3:18-cr-04683-GPC Document 403 Filed 05/05/22 PageID.6228 Page 6 of 15
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` The GetAds and
`AFRINIC transactions are completely different. The AFRINIC evidence has limited
`probative value and will only confuse the jury and prejudice the Defendants.
`The government failed to identify evidence demonstrating that the
`B.
`AirSea LOA was fraudulent or that Defendant Manoogian falsified it.
`The government’s proposed 404(b) evidence wholly fails to establish or suggest that
`the LOA at issue is falsified or that Defendant Manoogian did so. In fact, it paints a different
`picture. It shows that on April 10, 2013, Defendant Manoogian advised Defendant Abdul
`Mohammed Qayyum that Sales was expected to circulate the AirSea LOA by 8:00 a.m. the
`next day. See Bernstein Decl. ¶ 3, Ex. B. The very next morning on April 11, Defendant
`Manoogian sent an email to Sales inquiring about the LOA that the Company A team should
`have received two hours prior. See Bernstein Decl. ¶ 4, Ex. C. A few hours later, Defendant
`Manoogian noted in an email to Defendants Qayyum and Bychak that the AirSea LOA –
`which had already been executed and bore a stamp with AirSea’s name and information –
`“look[ed] official.” Id. at ¶ 5, Ex. D.
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`Critically, the government’s supplemental filing did not include a single email
`exchange or witness statement indicating that Defendant Manoogian ever created an LOA
`or ever emailed the template language in question to Sales or other Company A employees,
`including the other three Defendants. But, without a shred of proof, the government claims
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`DEFENDANTS’ RESPONSE TO THE GOVERNMENT’S SUPPLEMENTAL NOTICE OF 404(b)
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`this must be admitted to establish that Defendant Manoogian had the wherewithal to
`fabricate an LOA. While there is no evidence that he prepared the AirSea LOA, there is a
`real risk that the jury will be misled and confused by the proposed 404(b) evidence given
`the complexity and nuance of this case.
`But most importantly, it is simply impossible to adequately investigate these
`allegations before a May 23 trial date. The discovery associated with just Sales and
`AFRINIC is more voluminous than the typical border bust prosecution in this district. As
`described further below in Section III, Defendants cannot proceed with trial on May 23,
`2022 if this late-noticed evidence is admitted.
`C. The government failed to identify any evidence demonstrating that
`Defendants were aware the AFRINIC IPs were used without
`authorization.
`The government does not identify a single document demonstrating that the
`Defendants – or any Company A employee – knew that the AFRINIC IPs had been
`purportedly used without authorization. The government instead cites to a handful of
`ambiguous records and simply assumes that fact without elaboration. Each of the cited
`documents supporting the government’s claim, however, falls far short of establishing
`Defendants’ purported knowledge.
`First, the government largely relies on two emails addressed to Peter Holden,
`principal of Hostwinds, from May of 2013. See Dkt. No. 398 at 4. On May 2, 2013, a
`representative of CoreXchange – which provided upstream internet services to Hostwinds
`– emailed Holden about a potential use of the AFRINIC IPs without authorization. See
`Bernstein Decl. ¶ 6, Ex. E (email to Holden). In his follow-up email, Holden advised
`CoreXchange that he purportedly “spoke to the client who rent[ed] the space.” Id. Based
`on Holden’s recent interview with a government agent on April 19, 2022, Holden allegedly
`forwarded the CoreXchange email to Company A. Id. at ¶ 7, Ex. F. But this email to
`Company A is nowhere to be found in the 404(b) package, or any of the government’s
`nearly three million pages of discovery, or on the government’s 700+ exhibit list (Dkt. No.
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`DEFENDANTS’ RESPONSE TO THE GOVERNMENT’S SUPPLEMENTAL NOTICE OF 404(b)
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`.2 See Bernstein Decl. ¶ 8, Ex. G
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`also id. at ¶ 9, Ex. H
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`395). Therefore, the government’s representation that Defendants knew that the AFRINIC
`IPs were used without authorization relies entirely on Holden’s unsupported statements
`allegedly first made two weeks ago.1
`Second, the government makes much of the fact that Company A decided to continue
`using the AFRINIC IPs (which they paid to use) after they were SBL’d or placed on
`Spamhaus’s block list.
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`1 Further, Defendants are concerned that the government first noticed its 404(b) evidence
`on March 18, 2022 and suggested that it would be able to connect the notice Holden
`received to the Defendants. But, no such connection was ever provided in the next month.
`It was not until discovery production 64 on April 29 – the same day the government filed
`the 404(b) Supplement and 24 days before trial – that Defendants were ever provided with
`any notice or evidence of this alleged connection.
`2 See Spamhaus, https://www.spamhaus.org/faq/section/Spamhaus%20SBL#474 (last
`visited May 3, 2022).
`3 See Dkt. No. 334, Government’s Opposition to Motion to Dismiss for Outrageous
`Governmental Misconduct, at 10 n. 8 (citing https://www.spamhaus.org/organization/
`statement/005/spamhaus-position-on-can-spam-act-of-2003).
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`DEFENDANTS’ RESPONSE TO THE GOVERNMENT’S SUPPLEMENTAL NOTICE OF 404(b)
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`Case 3:18-cr-04683-GPC Document 403 Filed 05/05/22 PageID.6231 Page 9 of 15
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`Ex. I
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` Bernstein Decl. ¶ 10,
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`Decl. ¶ 11, Ex. J
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` See Bernstein
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` See Bernstein Decl., Ex. G.
`Finally, the government’s reference to a screenshot of the Spamhaus Law
`Enforcement Portal is also not probative of any criminal knowledge by Defendants. These
`screenshots appear to have been taken sometime in or about December 2019 – long after
`Company A leased the AFRINIC IPs. See, e.g., Bernstein Decl. ¶ 8, Ex. H. It is therefore
`unknown whether Spamhaus identified the AFRINIC IPs as having been used without
`authorization in the intervening years since Company A leased such netblocks.
`The government thus presents an unfounded belief regarding Spamhaus’ block list
`and fails to identify any documentary evidence that Defendants actually knew the AFRINIC
`IPs were stolen or used without authorization.
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`Case 3:18-cr-04683-GPC Document 403 Filed 05/05/22 PageID.6232 Page 10 of 15
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`III. THE 404(b) EVIDENCE REQUIRES THAT THE DEFENSE PREPARE
`FOR A TRIAL WITHIN A TRIAL AT THE ELEVENTH HOUR.
`Leaving aside whether the late-noticed evidence complies with FRE 403 and 404, the
`Court must exclude this evidence because its admission would unduly curtail Defendants’
`due process rights and right to constitutionally effective representation. Extensive
`investigation is required to rebut this evidence, prepare adequate cross examination on the
`topic, and determine whether any defense witnesses need to be presented on the topic.
`Because defense counsel cannot adequately investigate and be prepared to rebut and defend
`against this late-noticed evidence with less than three weeks before trial, the Court must
`exclude the AFRINIC evidence.
`Importantly, the 404(b) Supplement indicates that the government intends to double
`down on its assertion that the AFRINIC IPs were used without authorization and that
`Defendants knew about it. Dkt. No. 398 at 5-6. To rebut this argument, Defendants will
`have to show that Company A’s lease agreements of the AFRINIC IPs were legitimate. To
`do this, Defendants will need to present percipient and expert testimony about LOAs in the
`context of an IP address lease arrangement and about standard business practices
`concerning a lease arrangement for AFRINIC IP addresses. Further, to establish that the
`LOA was not falsified, the defense will have to locate, interview, and preserve the testimony
`of a large cast of percipient witnesses located across the world on various continents
`including Dave Sales (the broker who interfaced with Defendants concerning the AFRINIC
`IPs and is believed to reside in India)4; Oyom Ojo (the individual who reported to
`CoreXchange that one of the AFRINIC IPs had been used without authorization); Brandon
`Stevenson (CoreXchange representative who interfaced with Ojo and Holden); Aboubakar
`Sidiki Yeo (AirSea POC whose signature appears on the AirSea LOA); an AirSea records
`custodian to authenticate the LOA and confirm that the accompanying stamp is accurate;
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`4 Defense counsel has already taken steps to locate the broker for this netblock. Counsel’s
`inability to reach him after a making a reasonable attempt is indicative of the additional
`time and effort that will need to go into the defense team’s investigation.
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`and other individuals, including current and former employees of Company A, who worked
`closely on these AFRINIC IP lease transactions and appear on relevant emails related to the
`netblock and its LOA. The government’s anticipated witnesses—Jordan Goettsche (an FBI
`case agent) and Holden (a government cooperator)—simply cannot establish these facts.
`The defense would additionally need to subpoena, obtain, and review relevant
`documents such as the brokers’ records to determine whether the AFRINIC leases and LOA
`were consistent with their business practices, as well as transcripts of Skype
`communications between Holden, Sales, and Defendants to establish what authority was
`conveyed regarding the AirSea LOA. To shed clarity on the netblock leases and related
`LOAs in the specific context of AFRINIC’s policies and procedures, Defendants would also
`have
`to
`locate and
`interview AFRINIC’s president or another knowledgeable
`representative5. Finally, on top of all this, the defense team must also review and analyze
`in short order an additional discovery tranche of thousands of documents of technical and
`esoteric content, many of which are multiple pages long.
`It is impossible to undertake and complete this necessary, expansive, and complicated
`investigation before a May 23, 2022 trial, and the Court must accordingly either exclude
`the AFRINIC evidence or substantially continue the trial date.6
`IF THE 404(b) EVIDENCE IS ADMITTED, DEFENDANTS WILL BE
`IV.
`FORCED TO MOVE TO CONTINUE THE TRIAL DATE TO
`ADEQUATELY PREPARE A DEFENSE.
`Due process requires that Defendants are afforded a reasonable opportunity to
`prepare a trial defense. The government’s proposed 404(b) evidence deprives Defendants
`of an adequate defense by both forcing last minute tasks on a new and complicated case and
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`5 For context, the government intends to present the testimony of a representative from the
`American Registry of Internet Numbers (ARIN), who is anticipated to explain ARIN’s role
`in this case and its policies and procedures.
`6 Defendants will file detailed motions to continue the trial date with supporting affidavits
`if necessary.
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`10
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`18-cr-04683-GPC
`DEFENDANTS’ RESPONSE TO THE GOVERNMENT’S SUPPLEMENTAL NOTICE OF 404(b)
`EVIDENCE
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`Case 3:18-cr-04683-GPC Document 403 Filed 05/05/22 PageID.6234 Page 12 of 15
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`impairing their ongoing trial preparation.7 While defense counsel have been diligently
`preparing to defend against the charged allegations regarding the five netblocks in the
`indictment and additional allegations regarding six uncharged netblocks, Defendants cannot
`receive a constitutionally effective representation if the AFRINIC IPs are admitted. For
`that reason, if the Court elects to admit evidence of the AFRINIC IPs, Defendants will have
`no other recourse but to move for a substantial trial continuance.
`V. CONCLUSION.
`
`This case has been investigated for nine years and indicted for five. There is no
`reason for the government to drop the entirely prejudicial and unnecessary 404(b) evidence
`on the Defendants mere days before trial. For the reasons set forth above and in the interest
`of justice and fairness, the Court should maintain the May 23, 2022 trial date and exclude
`the government’s proposed 404(b) evidence, in full, relating to the AFRINIC IPs.
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`Respectfully submitted,
`BIENERT KATZMAN LITTRELL
`WILLIAMS LLP
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`Dated: May 5, 2022
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`By: /s/ Whitney Z. Bernstein
`Thomas H. Bienert, Jr.
`James D. Riddet
`Whitney Z. Bernstein
`Carlos A. Nevarez
`Attorneys for Mohammed Abdul Qayyum
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`7 Litigation of the admission of this late-noticed evidence has been consuming, requiring
`at least two supplemental defense briefs and an upcoming hearing. This detracts from
`counsel’s other, extensive trial preparation-related tasks such as identifying and analyzing
`the government’s 700+ exhibits, noticed on April 25, 2022, to be prepared to commence
`on May 23.
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`18-cr-04683-GPC
`DEFENDANTS’ RESPONSE TO THE GOVERNMENT’S SUPPLEMENTAL NOTICE OF 404(b)
`EVIDENCE
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`Case 3:18-cr-04683-GPC Document 403 Filed 05/05/22 PageID.6235 Page 13 of 15
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`Dated: May 5, 2022
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`Dated: May 5, 2022
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`Dated: May 5, 2022
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`MINTZ LEVIN COHN FERRIS
`GLOVSKY AND POPEO, P.C.
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`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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`WIECHERT, MUNK & GOLDSTEIN, PC
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`By: /s/ Jessica C. Munk
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`David W. Wiechert
`Jessica C. Munk
`Attorneys for Jacob Bychak
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`BIRD, MARELLA, BOXER, WOLPERT,
`NESSIM, DROOKS, LINCENBERG &
`RHOW, P.C.
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`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’ RESPONSE TO THE GOVERNMENT’S SUPPLEMENTAL NOTICE OF 404(b)
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`Case 3:18-cr-04683-GPC Document 403 Filed 05/05/22 PageID.6236 Page 14 of 15
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`CERTIFICATION OF AUTHORIZATION TO SIGN SIGNATURE
`The undersigned counsel of record for Defendant Mohammed Abdul 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.
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`/s/ Whitney Z. Bernstein
` Whitney Z. Bernstein
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`CERTIFICATE OF AUTHORIZATION
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`3:18-cr-04683-GPC
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`Case 3:18-cr-04683-GPC Document 403 Filed 05/05/22 PageID.6237 Page 15 of 15
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`CERTIFICATE OF SERVICE
`Counsel for the Defendant certifies that the foregoing pleading has been
`electronically served on the following parties by virtue of their registration with the
`CM/ECF system:
`
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`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
`
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`Respectfully submitted,
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`By: /s/ Leah Thompson
` Leah Thompson
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`Dated: May 5, 2022
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