Case 3:18-cr-04683-GPC Document 427 Filed 05/17/22 PageID.6536 Page 1 of 5
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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
`
`UNITED STATES DISTRICT COURT
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`SOUTHERN DISTRICT OF CALIFORNIA
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`Case No. 18cr4683
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`GOVERNMENT RESPONSE TO
`DEFENDANTS’ PROPOSED JURY
`INSTRUCTIONS
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`UNITED STATES OF AMERICA,
` Plaintiff,
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` v.
`
`JACOB BYCHAK, et. al.
` 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 Section Senior Counsel Candy Heath, and hereby files its Response to
`Defendants’ Proposed Jury Instructions.
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`Case 3:18-cr-04683-GPC Document 427 Filed 05/17/22 PageID.6537 Page 2 of 5
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`I.
`PROCEDURAL BACKGROUND
`On May 6, 2022, the court directed the parties to submit proposed preliminary
`jury instructions by the morning of May 12, 2022. [ECF No. 406.] The government
`submitted its proposed jury instructions on May 10, 2022. [ECF No. 413.] Defendants
`submitted their proposed preliminary jury instructions on May 11, 2022. [ECF No. 415.]
`At the hearing on May 6, 2022, the court further suggested that the preliminary
`jury instructions might include factual descriptions or summaries for terms like Internet
`Protocol (IP) addresses and ARIN. The court directed the parties to meet and confer on
`potential factual descriptions or summaries that would be provided to the jury. Pursuant
`to the court’s order, the government provided the defense with a table comparing the
`parties’ proposed definitions on May 17, 2022.
`II.
`ARGUMENT
`A. Factual Summaries are Unwarranted1
`The court’s desire to be efficient with the jury’s time and avoid undue delay is
`understandable and clearly within its powers under Federal Rules of Evidence (“FRE”
`or “Rule”) 403 and 611. As the party with the “burden of persuasion,” however, the
`government is broadly “entitled to prove its case” without being required to stipulate to
`facts chosen or proffered by the defendant. Old Chief v. United States, 519 U.S. 172,
`189 (1997). The limited exception to this “accepted rule” typically involves 18 U.S.C.
`§ 922(g) gun cases in which a defendant may compel a stipulation to the second element
`of the crime (i.e. a prior felony conviction). This limited exception does not apply to
`this case.
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`1 To forestall a waiver argument, the government has submitted its own definitions for
`the defense’s proposed factual terms. To facilitate the court’s review, the government
`has prepared the attached table of the parties’ respective factual definitions.
`2
`Gov. Resp. to Def. Proposed Preliminary Jury Instr.
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`18cr4683-GPC
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`Case 3:18-cr-04683-GPC Document 427 Filed 05/17/22 PageID.6538 Page 3 of 5
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`Here, the suggestion that the parties jointly submit a statement of facts for the
`jury intrudes upon the government’s ability to prove its case. Id. at 188 (“the prosecution
`may fairly seek to place its evidence before the jurors” because “a naked proposition in
`a courtroom may be no match for the robust evidence that would be used to prove it”).
`Defendant’s attempts to shoehorn legal arguments and contested facts into the
`preliminary jury instructions illustrates why the court’s request for a stipulated or joint
`set of facts is neither warranted by nor inconsistent with Old Chief. For example,
`defendants’ proposed factual explanation of what constitutes “spam” or a “registrant”
`(Def. Prop. Instr. No. 1 [ECF No. 415]) misstates the controlling statutory definitions
`and ignores or overlooks that the terms’ definitions in a CAN-SPAM case are legal
`rather than factual questions. See 18 U.S.C. § 1037(d)(4), 15 U.S.C. § 7702(2)(A),
`United States v. Bychak, 441 F.Supp.3d 1003, 1016 (S.D. Cal Feb. 28, 2020). Similarly,
`defendants’ proposed description of Spamhaus includes irrelevant and argumentative
`details that are unsupported by any evidence listed on the government or defense exhibit
`lists. Having the court read defendants’ proposed definitions of these contested
`definitions to the jury would unfairly endow them with an imprimatur of impartial
`legitimacy. For these reasons, the government respectfully requests that the court refrain
`from instructing the jury on factual definitions during the preliminary jury instructions.
`B. Defendants’ Modified Preliminary Jury Instructions are Unsupported2
`1. Direct and Circumstantial Evidence
`The defense has submitted an instruction that suggests that circumstantial
`evidence requires greater scrutiny than direct evidence. This is not the law of the Ninth
`Circuit. “It is the exclusive function of the jury to weigh the credibility of witnesses,
`resolve evidentiary conflicts and draw reasonable inferences from proven facts . . ..
`Circumstantial and testimonial evidence are indistinguishable insofar as the jury fact-
`finding function is concerned, and circumstantial evidence can be used to prove any
`
`2 The government has prepared the separate attached table of the parties’ disputed jury
`instructions to facilitate the Court’s review.
`3
`Gov. Resp. to Def. Proposed Preliminary Jury Instr.
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`18cr4683-GPC
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`Case 3:18-cr-04683-GPC Document 427 Filed 05/17/22 PageID.6539 Page 4 of 5
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`fact.” United States v. Ramirez-Rodriquez, 552 F.2d 883, 884 (9th Cir. 1977)
`(quoting United States v. Nelson, 419 F.2d 1237, 1239-41 (9th Cir. 1969)).
`2. Conspiracy
`The defense has requested that the court give Ninth Circuit Model Jury
`Instruction 11.5 as the Elements of Conspiracy. This instruction is actually the pattern
`instruction for withdrawal from a conspiracy. There must be evidence of acts of
`withdrawal on the record before an instruction on withdrawal from a conspiracy may
`be given. United States v. Loya, 807 F. 2d 1483, 1493 (9th Cir. 1987). Accordingly, this
`instruction is not appropriate as a preliminary instruction. The correct pattern instruction
`for the elements of the conspiracy is Model Instruction 11.1.
`3. Elements of 18 USC §1037(a)(5)
`In setting forth the elements of the violation of the electronic mail fraud statute
`charged in the indictment, the defendants add an additional element to the offense that
`is not present in the section of the statute charged in the indictment. The defense
`requests that the court instruct the jury that the government must prove “there was no
`right for the recipient of the electronic mails to decline to receive additional electronic
`mail from the same source.” This addition seeks to require the government to prove that
`the spam recipients could not unsubscribe or opt out of receiving the spam emails. This
`requirement is not found anywhere in the language of §1037, which contains the
`criminal provisions of the CAN-SPAM Act. Instead, the portion of the statute charged
`in the indictment makes it unlawful to “in or affecting interstate or foreign commerce,
`knowingly…falsely represents oneself to be the registrant or the legitimate successor in
`interest to the registrant of five or more Internet Protocol addresses, and intentionally
`initiates the transmission of multiple commercial electronic mail messages from such
`addresses.” Nothing in the statute or regulations imposes the additional burden of proof
`on the government proposed by the defense and it should therefore be rejected.
`Additionally, the defense has misstated the interstate commerce aspect of the
`offense, suggesting that the government must prove that “each defendant knowingly
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`Gov. Resp. to Def. Proposed Preliminary Jury Instr.
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`Case 3:18-cr-04683-GPC Document 427 Filed 05/17/22 PageID.6540 Page 5 of 5
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`used, or caused to be used, electronic mails affecting interstate commerce.” The
`intentional transmission of multiple electronic mail messages is the second element of
`the offense. There is no mens rea attached to the requirement of an interstate commerce
`or foreign commerce nexus. That section of the language of the statute appears before
`any mention of mens rea. The United States requests that the court give the interstate
`commerce nexus instruction from United States v. Kilbride, 584 F. 3d 1240 (9th Cir.
`2009), which simply requires that the electronic mail messages were transmitted in or
`affecting interstate commerce.
`4. Defendants’ Proposed “Spam is Legal” Instruction
`It is axiomatic that the court must instruct the jury on all the elements of an
`offense the government must prove to convict a defendant of a violation of criminal
`law. United States v. Gaudin, 23 F.3d 943 (9th Cir) (en banc), aff’d 515 U.S. 506
`(1995). The defense seeks the reverse, to have the court instruct the jury about what is
`not illegal (i.e. that sending unsolicited commercial electronic mail messages could be
`legal in different circumstances). This is not the duty of the court. Moreover, the
`government has no intention of arguing that all commercial email is illegal and does not
`expect any such evidence to be elicited at trial. The court should therefore deny the
`request for this instruction as a preliminary instruction to the jury, and defer its
`consideration until the end of the trial, after all the evidence is presented.
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`DATED: May 17, 2022
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`Respectfully submitted,
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`Gov. Resp. to Def. Proposed Preliminary Jury Instr.
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`
`RANDY S. GROSSMAN
`United States Attorney
`
`s/Sabrina L. Fève
`Sabrina L. Fève
`Assistant U. S. Attorney
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