Case 3:18-cr-04683-GPC Document 456 Filed 06/01/22 PageID.7115 Page 1 of 6
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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
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`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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`GOVERNMENT’S POCKET
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`Plaintiff,
`BRIEF REGARDING THE
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`ADOPTIVE ADMISSION
`v.
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`EXCEPTION TO THE HEARSAY
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`RULE
`JACOB BYCHAK (1),
`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
`Section Senior Counsel Candy Heath, and hereby files its above-referenced Memorandum
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`Case 3:18-cr-04683-GPC Document 456 Filed 06/01/22 PageID.7116 Page 2 of 6
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`Concerning the Adoptive Admission Exception to the Hearsay Rule Pursuant to Federal
`Rule of Evidence 801(d)(2)(B).
`ADOPTIVE ADMISSIONS ARE NOT HEARSAY
`The Federal Rules of Evidence dictate that a statement made by and offered against
`an opposing party, where the opposing party “manifested that it adopted or believed [the
`statement] to be true,” is not hearsay. Rule 801(d)(2)(B). If sufficient foundational facts
`have been introduced for the jury to reasonably conclude that the defendant adopted a
`statement, then the issue should go to the jury, who can weigh the strength of that evidence.
`United States v. Monks, 774 F.2d 945, 950 (9th Cir. 1985); United States v. Gil, 58 F.3d
`1414, 1420 (9th Cir. 1995) (admitting ledgers as defendants’ adoptive admissions). The
`adoptive admissions rule applies to the electronic communication of documents and
`statements attaching other documents as well, for example, when one employee’s remark
`as to another employee’s email is then forwarded to an outside party. Sea-Land Service v.
`Lozen International, 285 F.3d 808, 818-21 (9th Cir. 2002).
`In Sea-Land, the Ninth Circuit held that an email by one employee, incorporating an
`internal memorandum from another employee, was an adoptive admission, when prefaced
`by comments manifesting “an adoption or belief in the truth” of the internal memorandum.
`Id. Sea-Land was a case involving a dispute over the late delivery of goods. A Sea-Land
`employee sent an email to the customer, incorporating information from another Sea-Land
`employee about the delivery, prefaced by a note stating, “Yikes, Pls note the rail screwed
`us up.” The incorporated information was found to be an adoptive admission, since the
`individual sending the email appeared to manifest a belief of the truth of the incorporated
`statement.
`In the instant case, the defendants regularly sent emails to each other that contained
`information they received from each other or an outside source regarding the status of the
`netblocks, which they then discussed amongst themselves, and agreed to act, based on an
`apparent belief in the truth of the incorporated statements. For example, in October of 2013,
`defendant Mark Manoogian advised defendants Jacob Bychak and Abdul Mohammed
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`Case 3:18-cr-04683-GPC Document 456 Filed 06/01/22 PageID.7117 Page 3 of 6
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`Qayyum that a hosting company reported that their data center said “the loa is invalid”
`because “the whois info didn’t match.” [Trial Exhibit 166.] (“LOA” stands for “Letters of
`Authorization.”) Qayyum replied that they could “set up an email service according to the
`POC” [Point of Contact on the WhoIs registry]. Manoogian then wrote, “He is saying they
`sent an email to dlynn@ect.net.”1 Qayyum then responded, “dlynn@ect.net has been
`configured to forward all emails to us.” Id. Following the reasoning of Sea-Land, the
`statement that the Educational & Corporate Technologies LOA was invalid because the
`POC did not match the ARIN WhoIs registry would be an adoptive admission of the
`defendants, and not hearsay. The defendants (who were aware that an email had been sent
`to the email address for the Educational & Corporate Technologies POC on the WhoIS
`registry to confirm the authorization in the LOA) manifested their belief in the truth of that
`statement by configuring the email address for the Educational & Corporate Technologies
`POC (which they controlled at that time) to forward all emails to them, so they could
`impersonate the POC and respond affirmatively to any third-party inquiries regarding
`authenticity of the LOA.
`The Ninth Circuit has held that adoptive admissions may occur even when the
`adopted message has not been reviewed by the adopter, where actions meaningfully link
`the document and the possessor together. Transbay Auto Service v. Chevron USA, 807 F.3d
`1113 (9th Cir. 2015). “Situations of this sort are most commonly encountered where the
`party forwards the document to another in response to some request (or perceived need)
`for information of the sort contained in the document.” Id. (citation omitted). In Transbay,
`Chevron had offered to sell a service station property to a franchisee. Chevron offered to
`sell the property for one figure; the franchisee commissioned an appraisal that determined
`the property was worth a higher amount. The franchisee purchased the property but later
`sued Chevron, claiming it had overpaid. At trial, the franchisee claimed not to have
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`1 “Dlynn@ect.net” was the email address for Darrel Lynn, who was the listed point of
`contact for the Educational & Corporate Technologies (“ECT”) IP netblock in ARIN’s
`WhoIS registry.
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`18cr4683-GPC
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`Case 3:18-cr-04683-GPC Document 456 Filed 06/01/22 PageID.7118 Page 4 of 6
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`reviewed the appraisal it had commissioned and submitted to the bank in support of a loan
`application for the property. The trial court excluded the franchisee’s valuation at trial as
`hearsay, and Chevron appealed.
`The Transbay court reversed the district court, finding that the appraisal by the
`franchisee was an adoptive admission. The court noted that “the action that a party takes
`in conformity with the document need not be serious.” Id. at 1119-1120. It is not required
`that the party have reviewed the document; a party may instead manifest an intent to adopt
`the contents by using the document to accomplish an objective or by acting in conformity
`with the document. Id. at 1120. The Ninth Circuit, agreeing with the First Circuit, found
`that the test was whether “the surrounding circumstances tie the possessor and the
`document together in some meaningful way.” Id. at 1119, 1120-21 (quoting Pilgrim v. Trs.
`Of Tufts Coll., 118 F.3d 864, 870 (1st Cir. 1997). Applying the standard to the actions of
`the franchisee, who had a vested interest in supplying the valuation of the property to a
`bank for a loan, the trial court should have found “sufficient foundational facts for a jury
`to reasonably conclude” that the franchisee adopted the valuation and should have
`permitted that statement to go to the jury. Id. at 1121-22.
`Similar to the facts of Transbay, the defendants in this case sent emails to the hosting
`companies, with attached LOAs [i.e. Trial Exhibits 31, 31A, 34, 34A, 35, 35A, 35B]. Like
`the appraisal submitted to the bank by the franchisee in Transbay, the defendants had a
`vested interest in supplying evidence of their purported authorization to use the IP
`netblocks by means of the LOAs attached to their emails. Accordingly, the LOAs are
`adoptive admissions, and not hearsay, as the defendants manifested an intent to adopt the
`LOAs’ contents, that is the purported authorization to use the netblocks, by sending the
`LOAs to the hosting companies.
` The adoptive admission rule was discussed quite recently in Brown v. DirecTV,
`2021 WL 5755044 (C.D. Cal Dec. 1, 2021) at *13-14. DirecTv involved third-party debt
`collectors for DirecTv, who maintained records of persons reporting that the debt collectors
`were calling wrong numbers. DirecTv did no independent investigation regarding the
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`Case 3:18-cr-04683-GPC Document 456 Filed 06/01/22 PageID.7119 Page 5 of 6
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`wrong number complaints but simply removed the complainants’ phone numbers from
`their database. In the class action lawsuit brought by individuals who claimed that they
`were called by debt collectors although they had never been DirecTv subscribers, DirecTv
`argued that the self-reports of “wrong number” were inadmissible hearsay. The court
`disagreed, finding them to be adoptive admissions because DirecTv relied upon them in
`making decisions regarding whether to remove the number from the database, which
`manifested a belief in the accuracy of the records.2 Similar to DirecTv, the defendants in
`this case received reports from individuals complaining that they had received spam sent
`from the GetAds IPs, and responded to those reports by unsubscribing the complaining
`individuals from their mailing lists. [Trial Exhibits 176, 177, 436-39, 441-43, 643.]
`Accordingly, the emails from the parties complaining about spam, like the wrong number
`reports in DirecTv, should be considered adoptive admissions.
`In sum, when deciding whether to admit a proffered email or document in the face
`of an objection for hearsay, the Court should decide whether the opposing party exhibited
`an intent to adopt the contents by using the document to accomplish an objective or by
`acting in conformity with the document. Transbay at 1121. The forwarding of an email
`//
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`2 The Transbay Court, in determining that the personal review of a document by a party
`was not determinative for an adoptive admission, drew an analogy to the willful blindness
`doctrine in criminal cases. The court noted that just as a defendant who was willfully blind
`to the false contents of a document could be found guilty of fraud, a person who acts in
`conformity with or uses a document to achieve an objective could be found to have adopted
`its contents, even if they have not reviewed it. Transbay Auto Service v. Chevron USA, 807
`F.3d 1113, 1120 (9th Cir. 2015) (citing cases). The import is clear: a defendant may not
`take actions in reaction to possessing a document and then simply hide their head in the
`sand to avoid having that document imputed to them.
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`Case 3:18-cr-04683-GPC Document 456 Filed 06/01/22 PageID.7120 Page 6 of 6
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`with an attachment, or the inclusion of information from others used to focus the actions
`of the defendants, can constitute facts sufficient to overcome a hearsay objection.
`DATED: June 1, 2022 Respectfully submitted,
`
`RANDY S. GROSSMAN
`United States Attorney
`
`/s/Melanie K. Pierson
`Assistant United States Attorney
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`/s/Sabrina L. Fève
`Assistant United States Attorney
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`/s/Candy Heath
`Senior Counsel
`Computer Crime and Intellectual Property Section
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