Judge continues to disparage prosecution of alleged hacker

SAN FRANCISCO -- As the criminal trial of Yevgeniy Nikulin concluded what was expected to be the final day of proceedings Wednesday, the federal judge overseeing the case grew impatient with prosecutors over his skepticism that they offered little evidence of a direct link between hacks on major Silicon Valley technology companies and the suspected Russian hacker.

"Is his name going to appear in some record?" U.S. District Judge William Alsup asked. "Do you have any emails? Anything like that?"

Over the first two days of testimony, federal prosecutors argued LinkedIn, Dropbox and Formspring were hacked by someone with an IP address in Russia belonging to the email chinabig01@gmail.com. They said investigators traced that information back to Nikulin's suspected residence in Moscow.

Nikulin is accused of breaching the company databases to steal data on more than 100 million user accounts in 2012. He faces more than 30 years in prison and $1 million in fines if convicted on nine counts related to the hacks.

During the Wednesday Zoom video hearing, Assistant U.S. Attorney Michelle Kane continued to question FBI special agent Jeffrey Miller to connect the email and IP addresses to Nikulin.

Kane said on Tuesday she needed 1 hour to finish her examination. It ended up taking more than 3 hours.

Alsup was visibly frustrated. He said prosecutors are jeopardizing the chance of getting a verdict this week, which he aimed to do to limit the jurors' time in court.

A juror is expected to be dismissed on Monday, dropping the jury pool to 11 people. Both sides agreed to proceed with the trial with as few as six jurors, if necessary, to avoid a mistrial.

"We don't know yet whether this is a dry hole, and we're getting more thoroughly immersed in a dry hole, or if it will lead to a blazing headline," Alsup said. "Why are we taking up so much time?"

After Kane tried to ask Miller about the IP address being traced back to a Moscow residence, Alsup stopped the testimony at the objection of defense attorney Adam Gasner.

Alsup agreed Miller has no reliable knowledge to testify on the issue. He clarified to the jury "this witness has no personal knowledge, zero, of where the defendant lived."

Asked whether there's any more incriminating evidence rather than going over tiny details of the FBI's investigation, Kane said that she was building a foundation to get to it.

"That's going to be like blockbusters," the judge quipped. "The room will shake when that finally comes out."

The prosecutors turned to evidence that the email account allegedly belonging to Nikulin received automated messages from VK, a Russian social networking site.

In one notification, the account got a message that Nikulin's girlfriend replied to one of his posts on the site. In another, it was notified Nikulin's brother sent him a personal message.

Kane also presented automated messages sent to another email account, r00talka@gmail.com, from various websites.

Prosecutors believe both email addresses belong to Nikulin.

On cross examination, Gasner grilled Miller to bolster his defense that the U.S. attorney is looking for a conviction after extensive investigations into Russian cyber crime. Investigators intentionally built a case around Nikulin when there were other known Russian hackers, such as Olexsandr Leremenko and Evgeniy Bogachev, both of whom could have hacked the companies, he said.

Gasner also argued investigators could have mistaken Nikulin for Bogachev since their first names share the same spelling in Russian.

Alsup told both sides to prepare to wrap up their cases on Thursday. "We took a lot more time today than expected," he said, telling prosecutors "what you did was lay before the jury your closing argument."