Case 3:18-cr-04683-GPC Document 69-1 Filed 03/15/19 PageID.390 Page 1 of 19
`
`BIENERT, MILLER & KATZMAN, PLC
`Thomas H. Bienert, Jr., SBN 135311
`James Riddet, SBN 39826
`Whitney Z. Bernstein, SBN 304917
`903 Calle Amanecer, Suite 350
`San Clemente, CA 92673
`Telephone: (949) 369-3700
`Email: tbienert@bmkattorneys.com
` jriddet@bmkattorneys.com
` wbernstein@bmkattorneys.com
`Attorneys for Defendant
`Mohammed Abdul Qayyum
`Additional counsel on next page
`
`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF CALIFORNIA
`
`UNITED STATES OF AMERICA,
`Plaintiff,
`
`v.
`JACOB BYCHAK, MARK
`MANOOGIAN, MOHAMMED
`ABDUL QAYYUM, and PETR
`PACAS,
`
`Defendants.
`
`Case No. 18-cr-04683-GPC
`Hon. Gonzalo P. Curiel
`MEMORANDUM OF POINTS AND
`AUTHORITIES IN SUPPORT OF
`DEFENDANTS’ MOTION:
`(1) TO DISMISS THE CAN-SPAM ACT
`COUNTS (6 THROUGH 10) OF THE
`INDICTMENT AS VOID FOR
`VAGUENESS;
`(2) IN THE ALTERNATIVE, TO
`DISMISS COUNTS 6 THROUGH 10
`FOR FAILURE TO STATE AN
`OFFENSE;
`(3) TO DISMISS THE CONSPIRACY
`COUNT
`Hearing Date: April 19, 2019
`Hearing Time: 1:00 p.m.
`Department: Courtroom 2D
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`Case No. 18-cr-04683-GPC
`MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS
`
`

`

`Case 3:18-cr-04683-GPC Document 69-1 Filed 03/15/19 PageID.391 Page 2 of 19
`
`LAW OFFICE OF DAVID W. WIECHERT
`David W. Wiechert, SBN 94607
`Jessica C. Munk, SBN 238832
`William J. Migler, SBN 318518
`27136 Paseo Espada, Suite B, 1123
`San Juan Capistrano, CA 92675
`Telephone: (949) 361-2822
`Email: dwiechert@aol.com
` jessica@davidwiechertlaw.com
` william@davidwiechertlaw.com
`Attorneys for Defendant Jacob Bychak
`
`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
`Attorney for Defendant Mark Manoogian
`
`BIRD MARELLA BOXER WOLPERT NESSIM
`DROOKS LINCENBERG RHOW P.C.
`Gary Lincenberg, SBN 123058
`Naeun Rim, SBN 263558
`1875 Century Park East, Floor 23
`Los Angeles, CA 90067
`Telephone: (310) 201-2100
`Email: gsl@birdmarella.com
` nrim@birdmarella.com
`Attorneys for Defendant Petr Pacas
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`Case No. 18-cr-04683-GPC
`MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS
`
`
`
`

`

`Case 3:18-cr-04683-GPC Document 69-1 Filed 03/15/19 PageID.392 Page 3 of 19
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`TABLE OF CONTENTS
`
`I.
`II.
`
`Page
`INTRODUCTION ............................................................................................. 1
`LEGAL STANDARD ....................................................................................... 2
`A. Dismissal of Counts Based on Vagueness .............................................. 2
`B.
`Dismissal of Counts For Failure to State An Offense ............................ 4
`THE CAN-SPAM ACT COUNTS OF THE INDICTMENT (6
`THROUGH 10) SHOULD BE DISMISSED ON VAGUENESS
`GROUNDS ........................................................................................................ 5
`A.
`Subsection (a)(5) Is Facially Vague ........................................................ 5
`B.
`Subsection (a)(5) Is Vague As Applied to Defendants ........................... 7
`IV. ALTERNATIVELY, SUBSECTION (a)(5) SHOULD BE
`NARROWLY CONSTRUED, WHICH REQUIRES DISMISSAL OF
`COUNTS 6 THROUGH 10 FOR FAILURE TO STATE AN
`OFFENSE .......................................................................................................... 9
`THE CONSPIRACY COUNT MUST BE DISMISSED ............................... 10
`V.
`VI. CONCLUSION ............................................................................................... 11
`
`III.
`
`i
`Case No. 18-cr-04683-GPC
`MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS
`
`

`

`Case 3:18-cr-04683-GPC Document 69-1 Filed 03/15/19 PageID.393 Page 4 of 19
`
`TABLE OF AUTHORITIES
`
`Cases
`Acosta v. Huppenthal,
`No. CV 10-623-TUC-AWT, 2013 WL 871892 (D. Ariz. Mar. 8, 2013) ................ 4
`Arce v. Douglas,
`793 F.3d 968 (9th Cir. 2015) ................................................................................... 4
`Central Hudson Gas & Elec. Corp. v. Public Service Commission of New York,
`447 U.S. 557 (1980) ................................................................................................. 4
`Information Providers’ Coalition For the Defense of the First Amendment v. FCC,
`928 F.2d 866 (9th Cir. 1991) ................................................................................... 3
`Kolender v. Lawson,
`461 U.S. 352 (1983) ................................................................................................. 3
`Panther v. Hames,
`991 F.2d 576 (9th Cir. 1993) ................................................................................... 3
`People v. Materne,
`72 F.3d 103 (9th Cir. 1995) ................................................................................... 10
`Rogers v. Tennessee,
`532 U.S. 451 (2001) ............................................................................................... 10
`Smith v. Goguen,
`415 U.S. 566 (1974) ................................................................................................. 3
`Taylor v. United States,
`495 U.S. 575 (1990) ............................................................................................... 10
`Turf Center, Inc. v. United States,
`325 F.2d 793 (9th Cir. 1963) ................................................................................... 3
`U.S. v. Purdy,
`264 F.3d 809 (9th Cir. 2011) ................................................................................... 4
`United States v. Boren,
`278 F.3d 911 (9th Cir. 2002) ................................................................................... 5
`United States v. Jae Gab Kim,
`449 F.3d 933 (9th Cir. 2006) ................................................................................... 3
`United States v. Jensen,
`93 F.3d 667 (9th Cir. 1996) ..................................................................................... 5
`United States v. Jones,
`542 F.2d 661 (6th Cir. 1976) ................................................................................... 5
`United States v. Kilbride,
`584 F.3d 1240 (9th Cir. 2009) ......................................................................... 3, 4, 5
`United States v. LeCoe,
`936 F.2d 398 (9th Cir. 1991) ................................................................................. 10
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`ii
`Case No. 18-cr-04683-GPC
`MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS
`
`

`

`Case 3:18-cr-04683-GPC Document 69-1 Filed 03/15/19 PageID.394 Page 5 of 19
`
`United States v. Millis,
`621 F.3d 914 (9th Cir. 2010) ................................................................................. 10
`United States v. Pickard,
`100 F. Supp. 3d 981 (E.D. Cal. 2015) ..................................................................... 5
`United States v. Pulliam,
`No. CR 14-12-M-DWM-1, 2014 WL 3615776 (D. Mont. July 21, 2014) ............. 5
`United States v. Reese,
`92 U.S. 214 (1876) ................................................................................................... 3
`United States v. Romm,
`455 F.3d 990 (9th Cir. 2006) ................................................................................. 10
`United States v. Shortt Accountancy Corp.,
`785 F.2d 1448 (9th Cir. 1986) ................................................................................. 5
`United States v. Twombly,
`475 F. Supp. 2d 1019 (S.D. Cal. 2007) ................................................................... 2
`United States v. W.R. Grace,
`504 F.3d 745 (9th Cir. 2007) ................................................................................... 5
`United States v. Williams,
`553 U.S. 285 (2008) ............................................................................................. 3, 4
`United States v. Wright,
`No. 2:14-cr-357-APG-VCF, 2015 WL 9958034 (D. Nev. Dec. 24, 2015) ............. 4
`United States v. Zhi Yong Guo,
`634 F.3d 1119 (9th Cir. 2011) ................................................................................. 3
`Statutes
`18 U.S.C. § 1037(a)(5) .......................................................................................passim
`Rules
`Federal Rule of Criminal Procedure 12(b) .............................................................. 2, 5
`Regulations
`16 C.F.R. § 316.2 ......................................................................................................... 5
`Other Authorities
`Robert H. Jackson, The Federal Prosecutor,
`31 J. Crim. L. & Criminology 3 (1940) ................................................................... 4
`Sen. No. 877, 108th Cong., 1st Sess., § 104 (2003), 149 Cong. Rec. S13176-03, at
`*S13178,
`(daily ed. Oct. 23, 2003) 2003 WL 22415941 ....................................................... 14
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`iii
`Case No. 18-cr-04683-GPC
`MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS
`
`

`

`Case 3:18-cr-04683-GPC Document 69-1 Filed 03/15/19 PageID.395 Page 6 of 19
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`I.
`
`MEMORANDUM OF POINTS AND AUTHORITIES
`INTRODUCTION
`The Indictment (Counts 6 through 10) alleges violations of subsection (a)(5) of
`the CAN-SPAM Act, which makes it a crime to “falsely represent[] oneself to be the
`registrant or the legitimate successor in interest to the registrant of 5 or more Internet
`Protocol addresses, and intentionally initiate[] the transmission of multiple
`commercial electronic mail messages from such addresses.” 18 U.S.C. § 1037(a)(5).
`Because the Act seeks to regulate a form of speech—email advertising—and speech
`is entitled to First Amendment protection, subsection (a)(5) is subject to a facial
`vagueness challenge. Although there does not appear to be any case law interpreting
`subsection (a)(5), one thing is clear—the Act and its implementing regulations leave
`undefined the terms “registrant” and “legitimate successor in interest to the
`registrant” used in subsection (a)(5). Not only are these key terms undefined in the
`Act, but they lack a commonly understood meaning sufficient to enable citizens to
`know how to avoid violating subsection (a)(5). Furthermore, the Act does not provide
`any parameters regarding the requisite representation; e.g., can it be made to anyone
`in any context or must it be made to the registrar regarding registration? Thus,
`subsection (a)(5) is unconstitutionally vague on its face.
`Moreover, the Government is applying subsection (a)(5) in a manner that could
`not have been reasonably anticipated. Subsection (a)(5) requires there to have been a
`“registrant” of the IP addresses—thus the addresses must have been registered. The
`American Registry of Internet Numbers (“ARIN”) is, and has been since 1997, the
`only organization responsible for registration of IP addresses in the United States.
`The Government does not allege that the IP addresses were registered with ARIN, but
`only that the IP addresses were “inactive.” Indictment ¶¶2.b. & 5. In fact, during the
`time the IP addresses were allegedly acquired and used by Defendants, there is no
`evidence that they were registered with ARIN. The concept of hijacking old and
`abandoned IP addresses that were not registered is incomprehensible. Thus, it is not
`1
`Case No. 18-cr-04683-GPC
`MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS
`
`

`

`Case 3:18-cr-04683-GPC Document 69-1 Filed 03/15/19 PageID.396 Page 7 of 19
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`that making alleged false
`to have anticipated
`reasonable for Defendants
`representations about “inactive” addresses not registered with ARIN would expose
`them to subsection (a)(5) liability. The statutory language simply did not put
`Defendants on notice that their alleged conduct violated the CAN-SPAM Act.
`In the alternative, the Indictment fails to allege an offense under subsection
`(a)(5) of the CAN-SPAM Act. Legislative intent, ambiguities in subsection (a)(5),
`and the rule of lenity warrant a narrow construction. The term “registrant,” with
`respect to a United States IP address, should logically mean the registrant of an IP
`address registered with ARIN. And false representations should be limited to explicit
`representations that one is either the ARIN registrant or acquired the IP address from
`the ARIN registrant made for purposes relating to registration. The Indictment fails
`to allege an offense because the Government does not allege any material facts
`supporting the conclusion that the IP addresses were registered and does not allege
`any false representations regarding registration.
`Finally, Count 1, conspiracy, falls with the CAN-SPAM Act Counts because,
`notwithstanding a reference to wire fraud, the allegations identifying the “objects” of
`the conspiracy reflect that the Government is alleging a conspiracy to violate the Act.
`Moreover, the allegations do not support the type of representations regarding
`registration necessary to trigger liability under the Act.
`II.
`LEGAL STANDARD
`Federal Rule of Criminal Procedure 12(b) allows consideration at the pretrial
`stage of “[a]ny defense, objection, or request which is capable of determination
`without the trial of the general issue.” Fed. R. Crim. P. 12(b). Here, Defendants are
`challenging the Indictment on two grounds that can be adjudicated prior to trial: (1)
`void for vagueness with respect to subsection (a)(5) of the CAN-SPAM Act (Counts
`6 through 10); and (2) failure to state an offense (Counts 1 and 6 through 10).
`A. Dismissal of Counts Based on Vagueness.
`“Overly vague penal statutes violate due process.” United States v. Twombly,
`2
`Case No. 18-cr-04683-GPC
`MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS
`
`

`

`Case 3:18-cr-04683-GPC Document 69-1 Filed 03/15/19 PageID.397 Page 8 of 19
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`475 F. Supp. 2d 1019, 1022 (S.D. Cal. 2007). “A criminal statute is void for
`vagueness if it is ‘not sufficiently clear to provide guidance to citizens concerning
`how they can avoid violating it and to provide authorities with principles governing
`enforcement.’” United States v. Zhi Yong Guo, 634 F.3d 1119, 1121 (9th Cir. 2011)
`(quoting United States v. Jae Gab Kim, 449 F.3d 933, 942 (9th Cir. 2006)). In other
`words, “[a] statute is unconstitutionally vague on its face if it ‘fails to provide a person
`of ordinary intelligence fair notice of what is prohibited, or is so standardless that it
`authorizes or encourages seriously discriminatory enforcement.’” United States v.
`Kilbride, 584 F.3d 1240, 1257 (9th Cir. 2009) (quoting United States v. Williams, 553
`U.S. 285, 304 (2008)).1
`“The statute will meet the requirement of ‘certainty required by the
`Constitution if its language conveys sufficiently definite warning as to the proscribed
`conduct when measured by common understanding and practices.’” Panther v.
`Hames, 991 F.2d 576, 578 (9th Cir. 1993) (quoting Turf Center, Inc. v. United States,
`325 F.2d 793, 795 (9th Cir. 1963)). “For statutes like § 1037 involving criminal
`sanctions ‘the requirement for clarity is enhanced.’” Kilbride, 584 F.3d at 1257
`(quoting Information Providers’ Coalition For the Defense of the First Amendment v.
`FCC, 928 F.2d 866, 874 (9th Cir. 1991)). The importance of clarity is especially keen
`with respect to subsection (a)(5) of the CAN-SPAM Act, since there does not appear
`to be any case law interpreting it.
`
`
`1 The second requirement—that the legislature “establish minimal guidelines to
`govern law enforcement,” Smith v. Goguen, 415 U.S. 566, 574 (1974)—is arguably
`“the more important aspect of the vagueness doctrine.” Kolender v. Lawson, 461 U.S.
`352, 357-58 (1983). That is because “the greatest danger of abuse of prosecuting
`power” is the prosecutor’s ability to “pick[] some person whom he dislikes or desires
`to embarrass, or select[] some group of unpopular persons and then look[] for an
`offense.” Robert H. Jackson, The Federal Prosecutor, 31 J. Crim. L. & Criminology
`3, 5 (1940). The Fifth Amendment accordingly does not tolerate criminal laws that
`threaten to cast a “net large enough to catch all possible offenders” while leaving “it
`to the courts to step inside and say who could be rightfully detained.” United States
`v. Reese, 92 U.S. 214, 221 (1876).
`
`3
`
`Case No. 18-cr-04683-GPC
`MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS
`
`
`
`

`

`Case 3:18-cr-04683-GPC Document 69-1 Filed 03/15/19 PageID.398 Page 9 of 19
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`“‘[O]rdinarily a [party] who engages in some conduct that is clearly proscribed
`cannot complain of the vagueness of the law as applied to the conduct of others’”;
`however, the Supreme Court has “‘relaxed that requirement in the First Amendment
`context.’” Kilbride, 584 F.3d at 1257 (quoting Williams, supra, 553 U.S. at 304).
`CAN-SPAM Act provisions are subject to a facial vagueness challenge because the
`Act regulates commercial speech, which is protected by the First Amendment, albeit
`accorded lesser protection than other constitutionally guaranteed expression. See
`Central Hudson Gas & Elec. Corp. v. Public Service Commission of New York, 447
`U.S. 557, 561-63 (1980).2
`“A statute is unconstitutionally vague as applied if it failed to put a defendant
`on notice that his conduct was criminal.” Kilbride, 584 F.3d at 1257 (citing U.S. v.
`Purdy, 264 F.3d 809, 811 (9th Cir. 2011) (emphasis added)). “An as-applied
`vagueness claim is viable when a particular application of an otherwise-permissible
`statute stretches the breadth of the statute further than could be reasonably
`anticipated.” Acosta v. Huppenthal, No. CV 10-623-TUC-AWT, 2013 WL 871892,
`at *12 (D. Ariz. Mar. 8, 2013) (citing Kilbride, 584 F.3d at 1257), aff’d in part, rev’d
`in part on other grounds, and remanded by Arce v. Douglas, 793 F.3d 968 (9th Cir.
`2015). An as-applied challenge can be ruled on at the pre-trial stage. See, e.g., United
`States v. Wright, No. 2:14-cr-357-APG-VCF, 2015 WL 9958034 (D. Nev. Dec. 24,
`2015), report and recommendation adopted by 2016 WL 438957.
`B. Dismissal of Counts for Failure to State an Offense.
`The Ninth Circuit has stated the general proposition that “[o]n a motion to
`dismiss an indictment for failure to state an offense, the court must accept the truth of
`the allegations in the indictment in analyzing whether a cognizable offense has been
`charged” and that a court “‘should not consider evidence not appearing on the face of
`
`2 In Kilbride, 584 F.3d at 1258, the Ninth Circuit expressly did not reach the issue of
`whether § 1037 regulates protected speech and thus is subject to a facial vagueness
`challenge.
`
`4
`Case No. 18-cr-04683-GPC
`MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS
`
`

`

`Case 3:18-cr-04683-GPC Document 69-1 Filed 03/15/19 PageID.399 Page 10 of 19
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`the indictment.’” United States v. Boren, 278 F.3d 911, 914 (9th Cir. 2002) (quoting
`United States v. Jensen, 93 F.3d 667, 669 (9th Cir. 1996)). However, the Ninth Circuit
`has also recognized that “‘a district court may make preliminary findings of fact
`necessary to decide the questions of law presented by pre-trial motions so long as the
`court’s findings on the motion do not invade the province of the ultimate finder of
`fact.’” United States v. Shortt Accountancy Corp., 785 F.2d 1448, 1452 (9th Cir.
`1986) (quoting United States v. Jones, 542 F.2d 661, 664 (6th Cir. 1976)).
`Consequently, courts in the Ninth Circuit have concluded, since Boren, that:
`• “There is no prohibition against the consideration of extrinsic evidence
`for purposes of a Rule 12(b) motion to dismiss.” United States v.
`Pickard, 100 F. Supp. 3d 981, 990 (E.D. Cal. 2015).
`
`• “The District Court [is] not limited to the face of the indictment in ruling
`on the motion to dismiss.” Id. (quoting Jones, supra, 542 F.2d at 664).
`
`• Judicial notice can be taken of appropriate matters in ruling on a motion
`to dismiss an indictment. See, e.g., United States v. Pulliam, No. CR 14-
`12-M-DWM-1, 2014 WL 3615776, at *1 (D. Mont. July 21, 2014)
`(granting motion for judicial notice).
`
`III. THE CAN-SPAM ACT COUNTS OF THE INDICTMENT (6
`THROUGH 10) SHOULD BE DISMISSED ON VAGUENESS
`GROUNDS
`
`Subsection (a)(5) is Facially Vague.
`A.
`Subsection (a)(5) of the CAN-SPAM Act prohibits:
`falsely represent[ing] oneself to be the registrant or the legitimate
`successor in interest to the registrant of 5 or more Internet Protocol
`addresses, and intentionally initiat[ing] the transmission of multiple
`commercial electronic mail messages from such addresses.
`
`18 U.S.C. § 1037(a)(5) (emphasis added). The Act, however, does not define the
`terms “registrant” or “legitimate successor in interest.” Neither do its implementing
`regulations. See 16 C.F.R. § 316.2. “‘When Congress does not define a term in a
`statute, [courts] construe that term according to its ordinary, contemporary, common
`meaning.’” Kilbride, 584 F.3d at 1257 (quoting United States v. W.R. Grace, 504
`5
`Case No. 18-cr-04683-GPC
`MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS
`
`

`

`Case 3:18-cr-04683-GPC Document 69-1 Filed 03/15/19 PageID.400 Page 11 of 19
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`F.3d 745, 755 (9th Cir. 2007)). Although a dictionary can be helpful in determining
`the “‘ordinary, contemporary, common meaning,’” that is not true for the statutorily
`undefined terms “registrant” and “legitimate successor in interest.” Registrant is
`defined as “one that registers or is registered.” Merriam-Webster’s Collegiate
`Dictionary, Eleventh Ed. (2003). The definition of registrant thus leaves open the
`question of registered where and with who? Legitimate has five definitions, including
`“conforming to recognized principles or accepted rules and standards.” Merriam-
`Webster’s Collegiate Dictionary, supra. The definition of legitimate thus leaves open
`the question of what principles or rules and standards? Successor in interest is not
`defined in general dictionaries. Black’s Law Dictionary (10th ed. 2014) defines it as:
`“Someone who follows another in ownership or control of property. A successor in
`interest retains the same rights as the original owner, with no change in substance.”
`Successor in interest could certainly mean ownership, but it is unclear whether the
`statutory term covers a lessee, assignee, or person with a right or authorization to use
`property.
`Subsection (a)(5) is also vague regarding the required false representation.
`Must the defendant expressly represent that he or she is the registrant? Must the
`representation be made to the registrar or can it be made to anyone? Must the
`representation concern registration, e.g., made in the course of obtaining, updating, or
`transferring registration, or can it be made in any context? The statute simply does
`not provide clear guidance—to citizens or law enforcement—regarding what conduct
`is prohibited. For example, it is unclear whether subsection (a)(5) would be violated
`under the following scenario:
`• The defendant falsely represents—to anyone for any reason—that he or
`she is a particular person, but does not claim to be the registrant or
`legitimate successor in interest to the registrant of any IP addresses.
`• That particular person happens to be the registrant of 5 or more IP
`addresses.
`
`6
`
`Case No. 18-cr-04683-GPC
`MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS
`
`
`
`

`

`Case 3:18-cr-04683-GPC Document 69-1 Filed 03/15/19 PageID.401 Page 12 of 19
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`• The defendant sends the statutorily required volume of commercial email
`messages from that particular person’s IP addresses, with or without
`permission.
`In sum, subsection (a)(5) leaves so many questions unanswered as to be
`unconstitutionally vague on its face.
`Subsection (a)(5) is Vague as Applied to Defendants.
`B.
`Subsection (a)(5)’s vagueness is only highlighted when applied to Defendants’
`conduct. It is simply unreasonable to expect Defendants to have been on notice that
`subsection (a)(5) could encompass “inactive” IP addresses for which there is no
`evidence of the date of registration with ARIN. See Indictment ¶2.a. & b.
`ARIN is the non-profit organization established in December 1997 to manage
`and distribute IP addresses in its service region, which includes the United States. See
`https://www.arin.net/about_us/overview.html. ARIN is indisputably a registrar and
`to become a “registrant” requires an affirmative act to register—entering into a
`mandatory Registration Services Agreement (“RSA”) for IP addresses allocated by
`ARIN and a non-mandatory “legacy” RSA for IP addresses allocated before ARIN
`was
`formed.
`https://www.arin.net/resources/agreements/index.html;
`See
`https://www.arin.net/participate/policy/nrpm/. Pre-ARIN addresses are often not
`registered because the holders do not want to abide by the restrictions in RSAs or pay
`fees to ARIN.
`Significantly, the Government does not allege that any of the IP addresses at
`issue were registered with ARIN when allegedly purchased and used by the
`Defendants. In fact, the allegation that the IP addresses were “inactive” effectively
`negates registration. An “inactive” IP address would typically have been allocated
`before ARIN was formed, and thus not required to be registered with ARIN. The
`discovery provided by the Government, including FBI 302 reports, confirms that the
`IP addresses were allocated prior to ARIN’s formation and not subject to RSAs during
`the time period relevant to the Indictment. Moreover, the failure to register a pre-
`7
`Case No. 18-cr-04683-GPC
`MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS
`
`

`

`Case 3:18-cr-04683-GPC Document 69-1 Filed 03/15/19 PageID.402 Page 13 of 19
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`ARIN IP address by entering into a legacy RSA with ARIN would be a good
`indication that the IP address may have been abandoned. In this regard, inactive IP
`addresses can be analogized to abandoned property available to anyone unless and
`until re-claimed by the owner.3
`Because the CAN-SPAM Act was enacted in 2003—six years after ARIN
`became responsible for IP address registration—it is entirely reasonable to interpret
`the text of subsection (a)(5) as referring to a “registrant” of an IP address registered
`with ARIN. Thus, it would be reasonable to construe subsection (a)(5) as applying to
`IP addresses in the United States registered with ARIN. And a citizen could be
`reasonably confident that subsection (a)(5) did not apply so long as he or she was
`dealing with “inactive” IP addresses not registered with ARIN. That is what
`Defendants were allegedly dealing with. To the extent that the Government tries to
`argue that ARIN registration is not required because there was some recordkeeping
`associated with IP addresses allocated prior to ARIN’s existence, that only proves
`how vague subsection (a)(5) is as applied to Defendants’ conduct.4 Moreover, a
`citizen could be reasonably confident that criminal liability under the Act would be
`avoided so long as he or she did not make false representations about being the
`registrant or about registration, such as falsely representing to ARIN that registration
`
`3 IP blocks become inactive, and have been essentially abandoned, as the individuals
`and organizations they were originally allocated to experienced mergers, acquisitions,
`bankruptcies, and closures, or migrated to new information technologies. In some
`cases, they were simply forgotten.
`4 ARIN collects data regarding IP addresses, including contact information for
`holders or purported holders of IP addresses allocated by ARIN subject to RSAs,
`pre-ARIN IP addresses subject to legacy RSAs, and IP addresses allocated before
`ARIN was formed that are not subject to legacy RSAs. See
`https://www.arin.net/reference/research/bulkwhois/ and
`https://www.arin.net/reference/research/bulkwhowas/. The mere fact that ARIN has
`data regarding an IP address does not mean that the address is registered with ARIN.
`Moreover, because ARIN does not verify the accuracy of historical information
`identifying who pre-ARIN addresses were initially allocated to or subsequently
`transferred to and there is no requirement for this information to be updated, it is not
`necessarily reliable or complete.
`
`8
`Case No. 18-cr-04683-GPC
`MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS
`
`

`

`Case 3:18-cr-04683-GPC Document 69-1 Filed 03/15/19 PageID.403 Page 14 of 19
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`should be transferred from the current registrant to oneself, i.e., as the “legitimate
`successor in interest to the registrant.” Defendants’ alleged conduct does not resemble
`the type of technical false representation that would be expected to trigger subsection
`(a)(5) liability.
`IV. ALTERNATIVELY, SUBSECTION (a)(5) SHOULD BE NARROWLY
`CONSTRUED, WHICH REQUIRES DISMISSAL OF COUNTS 6
`THROUGH 10 FOR FAILURE TO STATE AN OFFENSE
`If the Court does not agree that subsection (a)(5) is void for vagueness, then the
`CAN-SPAM Act counts (6 through 10) should still be narrowly construed:
`• the term “registrant” should mean a registrant of a United States IP
`address with ARIN;
`• “falsely represents oneself to be the registrant or the legitimate successor
`in interest to the registrant” should mean an explicit false representation
`that one is either the registrant or acquired the IP address from the
`registrant; and
`• the false representation should be about registration.
`First, the legislative history of the CAN-SPAM Act reveals that Congress
`changed the statutory language of subsection (a)(5) in a way that warrants a narrow
`construction. The version of the Act passed in the Senate prohibited:
`falsely represent[ing] the right to use 5 or more Internet protocol
`addresses, and intentionally initiat[ing] the transmission of multiple
`commercial electronic mail messages from such addresses.
`See Request for Judicial Notice Exh. 1 [Sen. No. 877, 108th Cong., 1st Sess., § 104
`(2003), 149 Cong. Rec. S13176-03, at *S13178 (daily ed. Oct. 23, 2003) 2003 WL
`22415941, at **5 (emphasis added)]. The phrase the “right to use” was replaced in
`the enacted statute with “oneself to be the registrant or the legitimate successor in
`interest to the registrant.” Although legislative history does not discuss the reason for
`the change, the prior language is arguably more general and less technical than the
`enacted language. This change also indicates that Congress was focused on false
`representations specifically regarding registration—not general false representations.
`9
`Case No. 18-cr-04683-GPC
`MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS
`
`

`

`Case 3:18-cr-04683-GPC Document 69-1 Filed 03/15/19 PageID.404 Page 15 of 19
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`Second, the rule of lenity requires a narrow construction:
`(1) the rule “‘requires courts to limit the reach of criminal statutes to the clear
`import of their text and construe any ambiguity against the government.’” United
`States v. Millis, 621 F.3d 914, 916-17 (9th Cir. 2010) (quoting United States v. Romm,
`455 F.3d 990, 1001 (9th Cir. 2006);