Court filing
EX PARTE APPLICATION for Protective Order Government's Ex Parte Application for… — USA v. Ayvazyan et al (Dkt. 219)
Record facts
| Court | U.S. District Court for the Central District of California |
|---|---|
| Filed | 2021-03-29 |
U.S. District Court for the Central District of California · No. 2:20-cr-00579-SVW · Doc. 219 · 2021-03-29 · Docket on CourtListener
Summary
The government's ex parte application for a modified protective order in USA v. Ayvazyan et al, No. 2:20-cr-00579-SVW, in the U.S. District Court for the Central District of California, filed March 29, 2021 as Doc. 219. It asks the court to replace the protective order entered December 11, 2020 (ECF 92) and to have defense counsel take possession of confidential discovery previously given to defendants. The government alleges that Richard Ayvazyan and Tamara Dadyan used identity information from discovery to commit new crimes, charged in the first superseding indictment as concealment money laundering and attempted bank fraud. It states that the superseding indictment concerns over 150 PPP and EIDL loans, against 35 in the original indictment of November 17, 2020. The 29-page filing carries the /s/ signature of Scott Paetty.
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TRACY L. WILKISON
Acting United States Attorney
BRANDON D. FOX
Assistant United States Attorney
Chief, Criminal Division
SCOTT PAETTY (Cal. Bar No. 274719)
BRIAN FAERSTEIN (Cal. Bar No. 274850)
Assistant United States Attorneys
Major Frauds/Environmental and Community Safety Crimes Sections
1100/1300 United States Courthouse
312 North Spring Street
Los Angeles, California 90012
Telephone: (213) 894-6527/3819
Facsimile: (213) 894-6269/0141
E-mail:
Scott.Paetty@usdoj.gov/Brian.Faerstein@usdoj.gov
DANIEL S. KAHN
Acting Chief, Fraud Section
Criminal Division, U.S. Department of Justice
CHRISTOPHER FENTON
Trial Attorney, Fraud Section
Criminal Division, U.S. Department of Justice
1400 New York Avenue NW, 3rd Floor
Washington, DC 20530
Telephone: (202) 320-0539
Facsimile: (202) 514-0152
E-mail:
Christopher.Fenton@usdoj.gov
Attorneys for Plaintiff
UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA
UNITED STATES OF AMERICA,
Plaintiff,
v.
RICHARD AYVAZYAN,
aka “Richard Avazian” and
“Iuliia Zhadko,”
MARIETTA TERABELIAN,
aka “Marietta Abelian” and
“Viktoria Kauichko,”
ARTUR AYVAZYAN,
aka “Arthur Ayvazyan,” and
TAMARA DADYAN,
MANUK GRIGORYAN,
aka “Mike Grigoryan,” and
“Anton Kudiumov,”
ARMAN HAYRAPETYAN,
EDVARD PARONYAN,
No. CR 20-579(A)-SVW
GOVERNMENT’S EX PARTE APPLICATION
FOR MODIFIED PROTECTIVE ORDER;
MEMORANDUM OF POINTS AND
AUTHORITIES; DECLARATION OF BRIAN
FAERSTEIN; EXHIBITS
[PROPOSED] MODIFIED PROTECTIVE
ORDER FILED CONCURRENTLY HEREWITH
[PROPOSED] ORDER REGARDING CLAW-
BACK OF CONFIDENTIAL DISCOVERY
FROM DEFENDANTS FILED CONCURRENTLY
HEREWITH
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aka “Edvard Paronian” and
“Edward Paronyan,” and
VAHE DADYAN,
Defendants.
Plaintiff United States of America, by and through its counsel
of record, the Acting United States Attorney for the Central District
of California and Assistant United States Attorneys Scott Paetty and
Brian Faerstein, and United States Department of Justice Trial
Attorney Christopher Fenton, hereby applies ex parte for entry of a
modified protective order pursuant to Federal Rule of Criminal
Procedure 16(d)(1), replacing the protective order entered by the
Court on December 11, 2020 (ECF 92).
This ex parte application is based upon the attached memorandum
of points and authorities, the Declaration of Brian Faerstein and
attached exhibits, the files and records in this case, and such
further evidence and argument as the Court may permit.
The government submits this application on an ex parte basis due
to the extraordinary nature of defendants R. Ayvazyan’s and T.
Dadyan’s abuse of discovery and violations of the existing protective
order in this case to commit new crimes, as described further herein
and alleged in the first superseding indictment. The government has
recently produced a significant amount of confidential information to
both the original defendants and newly-charged defendants in this
case and submits there is an urgent need to protect the vast amount
//
//
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of PII and other sensitive third-party, witness, and victim
information from being misused for additional criminal purposes.
Dated: March 29, 2021
Respectfully submitted,
TRACY L. WILKISON
Acting United States Attorney
BRANDON D. FOX
Assistant United States Attorney
Chief, Criminal Division
/s/
SCOTT PAETTY
BRIAN FAERSTEIN
Assistant United States Attorneys
CHRISTOPHER FENTON
Department of Justice Trial Attorney
Attorneys for Plaintiff
UNITED STATES OF AMERICA
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TABLE OF CONTENTS
DESCRIPTION
PAGE
I.
INTRODUCTION...................................................1
II.
STATEMENT OF FACTS.............................................2
A.
Indictment Filed November 17, 2020........................2
B.
Meet-and-Confers Regarding Protective Order...............3
C.
Litigation Regarding Protective Order.....................6
D.
Protective Order Entered December 11, 2020................8
E.
Defendants’ Commission of Additional Crimes in
December 2020 Through February 2021 Using Discovery.......9
F.
First Superseding Indictment Filed March 9, 2021.........13
III. ARGUMENT......................................................13
A.
Defendants’ Violations of the Court’s Orders and
Commission of New Crimes Constitute Good Cause for
Modifying the Protective Order and Implementing
Standard Safeguards......................................16
B.
Defendants’ Violations of the Court’s Orders and
Commission of New Crimes Constitute Good Cause to
Enter an Order Clawing Back Confidential Discovery
Materials from the Defendants............................20
C.
The Proposed Modified Protective Order Will Not Unduly
Prejudice Defendants.....................................20
D.
The Terms of the Proposed Modified Protective Order
are Reasonable and Narrowly Tailored to Address the
Demonstrated Risks of Specific Injury....................22
E.
An Ex Parte Order Is Appropriate and Necessary to
Limit the Opportunities for Defendants to Commit New
Crimes While on Pretrial Release and Cause Further
Harm.....................................................23
IV.
CONCLUSION....................................................24
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TABLE OF AUTHORITIES
DESCRIPTION
PAGE
Cases
Alderman v. United States,
394 U.S. 165 (1969) .............................................. 14
Anderson v. Cryovac, Inc.,
805 F.3d 1 (1st Cir. 1986) ....................................... 14
Cipollone v. Liggett Group, Inc.,
785 F.2d 1108 (3d Cir. 1986) ..................................... 15
United States v. Concord Mgmt. & Consulting LLC,
404 F. Supp. 3d 67 (D.D.C. 2019) ............................. 15, 22
United States v. Johnson,
191 F. Supp. 3d 363 (E.D. Pa. 2016) .......................... 15, 22
United States v. Luchko,
No. CRIM.A. 06-319, 2007 WL 1651139 (E.D. Pa. June 6, 2007) ...... 15
United States v. Ohiri,
No. CR 19-0042-SVW, (C.D. Cal. Mar. 14, 2019) ................ 15, 22
United States v. Smith,
985 F. Supp. 2d 506 (S.D.N.Y. 2013) .......................... passim
United States v. Torres,
No. 20-cr-00418, 2020 WL 4500046 (D.N.J. Aug. 5, 2020) ....... 18, 19
United States v. Wecht,
484 F.3d 194 (3d Cir. 2007) .................................. 14, 16
United States v. Workman,
No. 1:18-CR-00020, 2019 WL 276843 (W.D. Va. Jan. 22, 2019) ... 15, 22
Statutes, Rules, and Other Authority
18 U.S.C. § 3771................................................... 18
Fed. R. Crim. P. 16(d)......................................... passim
2 Fed. Prac. & Proc. Crim. § 262................................... 14
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I.
INTRODUCTION
Two of the defendants in this case -- Richard Ayvazyan (“R.
Ayvazyan”) and Tamara Dadyan (“T. Dadyan”) -- have already violated
the Court’s existing protective order, violated their conditions of
pretrial release, and been indicted for new crimes, namely money
laundering and attempted bank fraud. These new crimes involved the
use of information relating to two of the dozens of fake, stolen, and
synthetic identities available to defendants through the discovery
materials the government produced to their respective counsel. The
government requests that the Court intervene and modify the operative
protective order to mitigate the specific risk that defendants cause
further injury by using discovery to commit more crimes.
At the outset of this case, the government sought an order that
would have implemented standard safeguards for the handling of
confidential discovery containing volumes of personally identifiable
information (“PII”) belonging to victims and other third-parties.
The standard safeguards would have required defendants to review such
confidential information under the supervision of their respective
counsel. Defendant R. Ayvazyan, joined by defendant T. Dadyan and
the other two original defendants in this case (Marietta Terabelian
and Artur Ayvazyan, or “A. Ayvazyan”), objected to any restriction
that would limit their direct possession of discovery materials,
including, for example, fraudulent driver’s licenses and Social
Security cards for their aliases.
Within days of the government’s production of discovery,
defendant R. Ayvazyan used identification information for one of the
fake identities to set up online brokerage and cryptocurrency
accounts and launder hundreds of thousands of dollars of stolen
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COVID-19 disaster relief money. Defendant T. Dadyan followed shortly
thereafter, using the stolen identification information of a victim
to attempt to impersonate that victim and access stolen COVID-19
disaster relief funds that had been frozen by a bank.
The recently unsealed first superseding indictment charges
defendants R. Ayvazyan (five counts of concealment money laundering)
and T. Dadyan (attempted bank fraud) with these additional crimes.
However, defendants continue to possess the vast amount of
confidential discovery materials in this case. Defendants R.
Ayvazyan’s and T. Dadyan’s violations of the existing protective
order demonstrate the risk of specific injury that remains unchecked
under the existing protective order and provide the Court with a
compelling basis to implement standard discovery safeguards at this
stage of the proceeding. The need to do so is urgent given that
dozens of fake, stolen, and synthetic identities and dozens of fake
and stolen business names remain available to defendants to use to
engage in further criminal activities. As the government continues
its investigation, the potential for additional criminal conduct is
substantial, as reflected by the massive scope of the alleged
conspiracy already charged in this case and the fact that a large
amount of the criminal proceeds has yet to be traced.
II.
STATEMENT OF FACTS
A.
Indictment Filed November 17, 2020
On November 17, 2020, a grand jury indicted defendants R.
Ayvazyan, Terabelian, A. Ayvazyan, and T. Dadyan with conspiracy to
commit bank fraud and wire fraud as well as individual counts of bank
fraud, wire fraud, and aggravated identity theft (the latter charge
then against defendant R. Ayvazyan only). (ECF 32.) The charges
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arose out of defendants’ scheme to fraudulently obtain millions of
dollars in COVID-19 disaster relief funds under the Paycheck
Protection Program (“PPP”) and Economic Injury Disaster Loan Program
(“EIDL”). (Id.)
The indictment, which has since been superseded as described
further below, alleged that the defendants used fake, stolen, and
synthetic identities and fake and stolen business names to submit
fraudulent loan applications, using their ill-gotten gains to
purchase luxury residential properties and other high-end goods.
(Id.) In furtherance of the scheme, defendants made false statements
and submitted fraudulent documents, including fake Internal Revenue
Service (“IRS”) forms and fake or stolen California drivers’
licenses. (Id.) The indictment further alleged that the defendants
controlled numerous bank accounts, in many cases using fake or stolen
identities to establish and move fraudulent loan proceeds between
those accounts. (Id.)
B.
Meet-and-Confers Regarding Protective Order
Prior to defendants’ arraignment, on November 30, 2020, the
government provided counsel for the original defendants with a
proposed protective order that would govern the production and
handling of discovery containing PII and Privacy Act information in
this case. (See ECF 65, Declaration of Julian L. André (“André
Decl.”), ¶ 14; see also ECF 63, Ex. C.) The proposed protective
order was based on the standard protective order adopted by the U.S.
Attorney’s Office in March 2020 after consultations with the Office
of the Federal Public Defender. (See id.)
The government informed counsel that it required the entry of a
protective order prior to producing copies of discovery in large part
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due to particularized concerns about the content of the discovery and
the nature of the charges in this case, in addition to concerns about
defendant R. Ayvazyan’s and Terabelian’s prior fraud convictions in
this District. See United States v. Ayvazyan et al., No. SA CR 11-
180-CJC, Dkt. Nos. 55, 58, 90, 99.1
Specifically, the government detailed that the discovery
contained significant amounts of sensitive and confidential
information, including:
• PII belonging to real persons, including victims and other
third-parties, among others (ECF 65, André Decl., ¶ 11.a.);
• unauthorized and counterfeit access devices relating to
fake, stolen, and synthetic identities (id., ¶ 11.b.);
• financial records, including bank records, credit card
records, and loan applications containing PII relating to
real and synthetic identities (id., ¶ 11.c.);
• telephone and Internet service provider records containing
third-party PII (id., ¶ 11.d.);
• credit reports relating to real persons (Id., ¶ 11.e.);
• records and information obtained from government agencies,
including the IRS and California Employment Development
Department (id., ¶ 11.f.); and
1 Defendants R. Ayvazyan and Terabelian were convicted of
conspiracy to commit bank fraud in 2012. In the factual basis to his
plea agreement, defendant R. Ayvazyan admitted that he defrauded
three financial institutions by submitting fraudulent loan
applications and false supporting documentation. United States v.
Ayvazyan et al., No. SA CR 11-180-CJC, Dkt. No. 58. Defendant R.
Ayvazyan also admitted that, in connection with a short sale of his
residence to his mother, he caused his mother to submit a fraudulent
letter to a financial institution falsely stating she was not related
to the owner of the property. Id.
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• physical evidence and digital devices seized pursuant to
search warrants that the government understood contained
significant amounts of third-party PII. (Id., ¶ 12.)
The government explained that the PII and other sensitive information
contained in the discovery included names, dates of birth, addresses,
phone numbers, email addresses, Social Security numbers, drivers’
license numbers, bank account numbers, credit card numbers, other
bank and credit card account information, tax information, mobile
identification numbers, and personal online passwords. (See
generally id., ¶¶ 11-12.)
The government informed the defense that it could not produce
such discovery without meaningful safeguards in place. (See ECF 63-
6, Ex. E; ECF 65, André Decl., ¶ 2.) Such protections necessarily
included restrictions on defendants’ possession, outside of defense
counsels’ presence, of PII relating to third-parties or witnesses, or
materials reflecting unauthorized and counterfeit access devices --
the possession of which could be used to commit new crimes. (Id.)
Counsel for defendant R. Ayvazyan advised the government that it
objected to the government’s proposed protective order, including any
provisions that would preclude defendant R. Ayvazyan from possessing
discovery in this case. (ECF 65, André Decl., ¶ 15.)
Counsel for defendant R. Ayvazyan pointed to the purported
“illogic” of the government’s concerns about discovery abuse,
stating, “under the government’s own charging theory, [defendant R.
Ayvazyan] and his alleged co-conspirators would also be the
‘legitimate owners’ of information in loan applications, most of
which were submitted by Iuliia Zhadko and Viktoria Kauichko, who the
government alleges to be [defendant R. Ayvazyan] and his wife. It
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would be illogical to insist on protection of Zhadko’s and Kauichko’s
information to the detriment of [defendant R. Ayvazyan’s] defense --
especially when the government contends that these individuals do not
exist.” (ECF 63-5, Ex. D at 1 (citation omitted).) Putting aside
the fallacy that the defendants could ever be “legitimate owners” of
fake, stolen, or synthetic identities, defense counsel’s lack of
concern about adequate protections for information pertaining to the
fake alias “Iuliia Zhadko” proved short-sighted. As explained
further below and alleged in the first superseding indictment, as
soon as he received discovery, defendant R. Ayvazyan used information
relating to “Iuliia Zhadko” to launder the fraudulent proceeds of
COVID-19 disaster relief loans.
On December 2, 2020, the government and counsel for defendant R.
Ayvazyan met and conferred regarding the government’s proposed
protective order, but were unable to reach an agreement as to the
terms of the protective order.2 (Id.)
C.
Litigation Regarding Protective Order
On December 7, 2020, the government and defendant R. Ayvazyan
filed separate ex parte applications seeking relief, which each party
opposed. (See ECF 63, 65, 73, 74.)
The government’s ex parte application sought the Court’s entry
of a protective order substantially identical to the proposed order
the government previously provided to the defense (with the exception
2 On November 30, 2020, counsel for defendant Terabelian
initially signed the government’s stipulation for protective order,
representing that he had conferred with his client regarding the
proposed order and agreed to its terms. (ECF 50 at 8.) However,
several days later, counsel for defendant Terabelian filed a notice
indicating he was withdrawing the stipulation because he mistakenly
thought the agreed-upon protective order was a different version
apparently circulated by counsel to defendant R. Ayvazyan. (ECF 52.)
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of an additional provision permitting the defendants to review
discovery over video-conferencing technology, accommodating a concern
raised by the defense). (ECF 65; ECF 65-1.) In support of its
application, the government summarized the serious potential for the
misuse of discovery under the specific circumstances of this case:
“if given unfettered access to this sensitive information, the
defendants may use these fake, stolen, and synthetic identities to
commit new crimes, such as obtaining new credit cards, applying for
new loans or other lines of credits, and opening new bank accounts to
launder criminal proceeds.” (ECF 73 at 7.)3
In his ex parte application, filed the same day, defendant R.
Ayvazyan alternatively proposed the entry of a protective order with
few restrictions that, as explained further below, would prove to be
fatally inadequate in this case. (See ECF 63-2, Ex. A.) Defendant
R. Ayvazyan challenged the government’s purported “vague, speculative
averments of risk unsupported by particular threats,” contending the
“the government cannot and will not be able to satisfy its heavy
burden that a specific prejudice or harm will occur in the absence of
a protective order.” (ECF 63 at 9-10.) Counsel for defendant R.
Ayvazyan also vouched for their client, representing that defendant
“Ayvazyan has demonstrated that he can follow rules similar to the
ones that adhere to discovery.” (ECF 63 at 10.) Counsel further
assured the Court by proffering their own ability to monitor and
ensure their client would not misuse the discovery in this case.
3 In the interest of focusing the Court’s attention on the new
information regarding defendants’ abuses of discovery, the government
does not repeat all of its arguments in its initial ex parte
application or its opposition to defendant R. Ayvazyan’s ex parte
application. The government hereby incorporates by reference the
information and arguments in those filings. (ECF 65, 73.)
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Counsel represented that defendant Ayvazyan “would be reviewing
discovery through Steptoe’s eDiscovery system, which will track every
document he views. It would be fundamentally illogical for Ayvazyan
to misuse data or information when he knows that there will be an
easily collectible record of his access.” (ECF 74 at 3.)
D.
Protective Order Entered December 11, 2020
On Friday, December 11, 2020, the Court entered the protective
order proposed by defendant R. Ayvazyan. (ECF 92.) The protective
order permitted defendants’ direct “[a]ccess to and possession of the
unredacted discovery materials” in this case. (Id., ¶ 3.) Other
than requiring redaction of discovery materials that the defense
provided to any third party “for the purpose of preparing their
defense,” the protective order contained only one condition
restricting defendants’ use of the sensitive information that would
be directly in their possession: “Use of the unredacted discovery
materials is limited to the preparation of the defense and litigation
of this case only.” (Id., ¶ 4.)
On Monday, December 14, 2020, pursuant to the Court’s entry of
the protective order, the government made its first production of
copies of discovery to counsel for the original defendants.4 (See
Declaration of Brian Faerstein (“Faerstein Decl.”), ¶¶ 2-3, Ex. 1.)
Within days, defendant R. Ayvazyan began using the discovery to
commit new crimes -- in violation of the protective order’s one
limitation that the discovery be used for “the preparation of the
4 The government made a small number of redactions relating to
loans that were not the subject of the indictment but were the
subject of the government’s ongoing investigation. The government
did not redact PII.
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defense and litigation of this case only” and in violation of the
conditions of his pretrial release. (ECF 92, ¶ 4.)
At the same time defendant R. Ayvazyan was abusing his access to
unfettered discovery in this case to commit more crimes (described
below), his counsel was preparing and publishing an article in the
Daily Journal that portrayed themselves as “savvy defense attorneys”
who had done “battle” with prosecutors over “unnecessarily
restrictive [protective] orders.” Counsel offered “practice
pointers” to the rest of the criminal defense bar based on what
counsel characterized as their personal “success” in litigating the
issue before this Court. See “Advocating against ‘one-size-fits-all’
protective orders during the COVID-19 pandemic,” Daily Journal,
January 6, 2021, available at: https://www.dailyjournal.com/mcle/865-
advocating-against-one-size-fits-all-protective-orders-during-the-
covid-19-pandemic (last viewed March 29, 2021).
E.
Defendants’ Commission of Additional Crimes in December
2020 Through February 2021 Using Discovery
As alleged in the original indictment, defendant R. Ayvazyan
applied for loans using his fake alias -- “Iuliia Zhadko” -- and
deposited the fraudulently obtained proceeds in bank accounts he
opened using his alias’s name. (ECF 32 ¶¶ 1, 16.c, 23 (Overt Acts
Nos. 12, 27-29, 33).) Between October 20 and November 5, 2020, law
enforcement arrested defendants R. Ayvazyan, Terabelian, A. Ayvazyan,
and T. Dadyan, searched their residences, and seized evidence
relating to their criminal activities. (See Faerstein Decl., ¶ 1.)
After law enforcement seized the evidence, the activity in the
“Iuliia Zhadko” bank accounts stopped. (See, e.g., id., ¶ 7, Ex. 3.)
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sole signatory to the newly-opened online brokerage and
cryptocurrency accounts, as well as to another bank account in his
alias’s name. (ECF 154, ¶ 58; see also Faerstein Decl., ¶ 7, Ex. 3.)
Defendant T. Dadyan similarly used information seized during the
residential search warrant executions but once again made accessible
through discovery in this case to commit additional crimes.
In particular, on December 17, 2020, the government made
available evidence seized pursuant to premises search warrants to
counsel for the original four defendants so that counsel could
inspect and copy the evidence, which counsel did. (See Faerstein
Decl., ¶ 4.) The evidence inspected by counsel included dozens of
fake and stolen identification documents, including fake and stolen
driver’s licenses, Social Security cards, and credit cards seized
from defendants A. Ayvazyan’s and T. Dadyan’s residence. (See id.,
¶¶ 4-5, Ex. 2.) One of the fake driver’s licenses was in the name of
A.D., which is a name defendants A. Ayvazyan and T. Dadyan used to
fraudulently obtain COVID-19 disaster relief funds. (See id.; see
also ECF 154, ¶¶ 24.c, 33 (Overt Act Nos. 62-64), 48-49, 60-64.) The
stolen money had been deposited in a bank account defendants A.
Ayvazyan and T. Dadyan fraudulently opened at a financial institution
(referred to as “Bank 8” in the first superseding indictment) using
A.D.’s name. (ECF 154, ¶¶ 60-64.) Defendants A. Ayvazyan and T.
Dadyan also used that account to receive other fraudulently obtained
COVID-19 disaster relief funds. (Id.)
After the government made the dozens of fake and stolen
identification documents available to counsel for inspection and
copying, defendant T. Dadyan used this identification information to
commit a new crime. For example, on or around January 22, 2021, Bank
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8 froze the account, which at that time contained over $300,000 in
criminal proceeds. (Id.) In an effort to defraud the bank and
fraudulently obtain the funds, defendant T. Dadyan repeatedly
telephoned the bank, falsely claiming she was A.D. and that the
stolen money belonged to her. (Id.)
F.
First Superseding Indictment Filed March 9, 2021
On March 9, 2021, a grand jury returned a first superseding
indictment that significantly expands the charges in this case. The
new charges include five counts of concealment money laundering
against defendant R. Ayvazyan relating to the above-described crimes
involving the use of the alias “Iuliia Zhadko” that he committed
while on pretrial release. (ECF 154, ¶¶ 58-59.) The first
superseding indictment also charges defendant T. Dadyan with one
count of attempted bank fraud for the conduct described above
involving the use of A.D.’s identity, which she also committed while
on pretrial release. (Id., ¶¶ 60-64.)
In addition, the first superseding indictment substantially
expanded the scope of the charged conspiracy from at least 35
fraudulent loan applications to over 150 seeking over $21.9 million
in COVID-19 disaster relief funds. (Id., ¶ 32.) The first
superseding indictment also adds four new defendants, charges all
defendants with conspiracy to commit money laundering, and includes
aggravated identity theft counts against all of the original four
defendants and two of the new defendants. (See generally id.)
III. ARGUMENT
“[T]he trial court can and should, where appropriate, place a
defendant and his counsel under enforceable orders against
unwarranted disclosure of the materials which they may be entitled to
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inspect.” Alderman v. United States, 394 U.S. 165, 185 (1969).
Federal Rule of Criminal Procedure 16(d) provides the Court the
mechanism to enter “protective and modifying orders” in carrying out
this role: “At any time the court may, for good cause, deny,
restrict, or defer discovery or inspection, or grant other
appropriate relief.” Fed. R. Crim. P. 16(d)(1). The Court maintains
“ample power” and “vast” discretion in fashioning relief under Rule
16(d)(1) upon a showing of good cause. See Federal Practice and
Procedure (Wright & Miller), 2 Fed. Prac. & Proc. Crim. § 262 (4th
ed.), Oct. 2020; see also Fed. R. Crim. P. 16, Adv. Comm. Notes, 1966
Amend. (“Control of the abuses of discovery is necessary if it is to
be expanded in the fashion proposed in” amendments broadening “the
scope of pretrial discovery” under Rule 16).
While the Ninth Circuit Court of Appeals has not spoken directly
to what constitutes “good cause” under Rule 16(d)(1), courts
generally find good cause “is established on a showing that
disclosure will work a clearly defined and serious injury to the
party seeking closure.” United States v. Wecht, 484 F.3d 194, 211
(3d Cir. 2007). That is, a “finding of harm ‘must be based on a
particular factual demonstration of potential harm, not on conclusory
statements.’” United States v. Smith, 985 F. Supp. 2d 506, 523
(S.D.N.Y. 2013) (quoting Anderson v. Cryovac, Inc., 805 F.3d 1, 8
(1st Cir. 1986)) (citation omitted). In addition, courts must
“balance several interests, including whether dissemination of the
discovery materials inflicts hazards to others, and whether the
imposition of the protective order would prejudice the defendant.”
Smith, 985 F. Supp. 2d at 523 (citations and internal quotation marks
omitted).
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Protective orders governing large amounts of discovery
containing sensitive information are appropriate upon a showing of
good cause. See, e.g., United States v. Concord Mgmt. & Consulting
LLC, 404 F. Supp. 3d 67, 74 (D.D.C. 2019) (“district courts have
issued ‘umbrella’ protective orders to manage large amount[s] of
sensitive information”) (citation omitted); Smith, 985 F. Supp. 2d at
546 (finding it “consistent with the proper allocation of evidentiary
burdens for the [C]ourt to construct a broad ‘umbrella’ protective
order upon a threshold showing by [the Government] of good cause”)
(quoting Cipollone v. Liggett Group, Inc., 785 F.2d 1108, 1122 (3d
Cir. 1986)); United States v. Luchko, No. CRIM.A. 06-319, 2007 WL
1651139, at *11 (E.D. Pa. June 6, 2007) (“Given the large-scale
nature of the discovery involved in this case and the attendant
monumental burden on the government involved in reviewing and making
redaction decisions with respect to all of these documents, an
umbrella protective order is appropriate.”).
Moreover, “[c]ourts regularly require sensitive discovery to be
viewed in a particular location in the presence of counsel, and only
after viewers agree (by signing a memorandum of understanding) not to
misuse the discovery.” Concord Mgmt., 404 F. Supp. 3d at 77
(collecting cases); see also, e.g., United States v. Johnson, 191 F.
Supp. 3d 363, 374 (E.D. Pa. 2016) (“[R]equiring the Defendants to
review the protected documents in the presence of counsel in no way
impairs the effectiveness of their proffered defenses.”); United
States v. Workman, No. 1:18-CR-00020, 2019 WL 276843, at *2 (W.D. Va.
Jan. 22, 2019) (finding good cause for protective order restricting
defendant’s access to discovery only in counsel’s presence where,
among other things, indictment provided “probable cause to believe
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[defendant] intimidated a confidential informant and altered or
destroyed records, making it appropriate to limit his unsupervised
access to discovery materials”).
A.
Defendants’ Violations of the Court’s Orders and Commission
of New Crimes Constitute Good Cause for Modifying the
Protective Order and Implementing Standard Safeguards
At this stage of the case, good cause for the government’s
proposed modified protective order is evident based on defendants’
abuse of the discovery process and breach of the Court’s trust.
Following the government’s production of discovery, defendants
R. Ayvazyan and T. Dadyan used that information to continue their
criminal scheme. There is nothing stopping them or the other
defendants in this case -- some of whom are family members and all of
whom are charged in the same criminal scheme rooted in the misuse of
fake, stolen, and synthetic identities -- from continuing to do the
same. Indeed, the government continues to investigate other
allegations of misuse of discovery to commit new crimes.
These are not “conclusory statements;” the grand jury’s findings
of probable cause of defendants R. Ayvazyan’s and T. Dadyan’s post-
indictment and post-discovery money laundering and attempted bank
fraud offenses concretely support a “particular factual demonstration
of potential harm,” as well as proof of actual harm already done.
Smith, 985 F. Supp. 2d at 523. There can be no more “clearly defined
and serious injury,” Wecht, 484 F.3d at 211, than the misuse of
sensitive discovery materials as a sword to commit additional crimes
instead of as a shield to defend oneself against allegations of
crimes already committed. Defendants R. Ayvazyan’s and T. Dadyan’s
violations of the existing protective order -- not to mention their
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violations of pretrial bail conditions7 -- provide more than
sufficient good cause for the Court to exercise its broad discretion
under Rule 16(d)(1). Indeed, one of the core principles underlying
the Court’s critical role under Rule 16(d)(1) is to “control . . .
abuses of discovery” in consideration of the potential expansive
nature of discovery under Rule 16. Fed. R. Crim. P. 16, Adv. Comm.
Notes, 1966 Amend. Defendants’ use of discovery information to
commit new crimes and enrich themselves further using the stolen
money that is the subject of the indictments qualifies as one such
blatant abuse of discovery.
The other previously identified rationales that the government
proffered in support of its proposed protective order are similarly
compelling in light of defendants’ discovery abuses. The discovery
contains extensive PII and sensitive information relating to victims
and other third-parties. The original defendants continue to possess
these unredacted materials, including discovery relating to more than
one hundred additional loans charged in the first superseding
indictment. And the newly-charged defendants will soon, if they have
not yet received them from defense counsel, possess these discovery
materials as well. (See Faerstein Decl., ¶ 6.) All defendants are
alleged to have conspired and worked together in a sweeping
fraudulent scheme to use fake, stolen, and synthetic identities in
7 In addition to the standard condition that both defendants not
commit any federal, state, or local crimes, defendant Ayvazyan’s
conditions of pretrial release include, among other things, that he
not use or access any bank accounts where he is not a signatory in
his legal name. (ECF 47-48.) Defendant T. Dadyan similarly is
prohibited from “us[ing] or possess[ing] any identification, mail
matter, access device, or any identification-related material other
than in [her] own legal or true name without prior permission from
[Pretrial Services],” including not using a bank account that is not
in her true name. (ECF 20.)
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submitting over 150 fraudulent loan applications and laundering the
proceeds they reaped from their fraud. (See generally ECF 154.) At
least two of the defendants have made clear the filing of criminal
charges has not deterred their continuation of the fraud and use of
the underlying discovery for criminal purposes.
On this record, the government’s proposed modified protective
order is necessary to preserve the security and protect against the
misuse of the PII and sensitive information of victims and other
third-parties. The need to safeguard the privacy interests of
victims, consistent with the Crime Victims’ Rights Act (“CVRA”), 18
U.S.C. § 3771, itself is sufficient good cause supporting the Court’s
entry of a protective order as to confidential victim information.
The CVRA “provides victims of crime with a collection of rights
including the ‘right to be reasonably protected from the accused’ and
the ‘right to be treated with fairness and with respect for the
victim's dignity and privacy.’ Courts around the country have relied
on the CVRA to find good cause for entry of protective orders.”
United States v. Torres, No. 20-cr-00418, 2020 WL 4500046, at *4
(D.N.J. Aug. 5, 2020) (collecting cases).
As for the scope of the proposed modified protective order, the
order should apply to all discovery designated as confidential under
the terms of the order and apply to all eight defendants. The first
superseding indictment charges only defendants R. Ayvazyan and T.
Dadyan with criminal conduct following the production of discovery in
this case. However, their spouses (defendant Terabelian and
defendant A. Ayvazyan, respectively) also are charged as defendants,
as is at least one other believed-to-be relative of T. Dadyan
(defendant Vahe Dadyan). Moreover, the other newly-charged
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defendants (defendants Manuk Grigoryan, Arman Hayrapetyan, and Edvard
Paronyan) all are alleged to have participated in the same close-knit
bank and wire fraud and money laundering conspiracies in this case,
including the transfer of fraudulent loan proceeds between bank
accounts controlled by the defendants and for the benefit of each
other. (See generally ECF 154.)
Other common threads in the manner and means of the conspiracy
raise similar acute concerns about several of the newly-charged
defendants having direct possession of the sensitive information in
the discovery. For instance, similar to defendant R. Ayvazyan’s use
of the fake alias “Iuliia Zhadko” to submit fraudulent loan
applications and set up bank accounts to control the fraudulent loan
proceeds, defendant Grigoryan used the alias “Anton Kudiumov” to
apply for fraudulent loans and set up a bank account for laundering
the proceeds. (See, e.g., ECF 154, ¶¶ 26.c, 31, 33 (Overt Act Nos.
45-46, 48-49), 46-47.) And similar to the aggravated identity theft
charges against the four original defendants and defendant Grigoryan,
defendant Hayrapetyan is alleged to have stolen at least two
different real victims’ personal and business identities to set up
fraudulent bank accounts in their businesses’ names and submit
fraudulent loan applications in their personal names. (See, e.g.,
id., ¶¶ 27.a, 27.b, 27.c, 31, 33 (Overt Act Nos. 1-7), 50-51.)
In sum, good cause exists for the Court to enter the
government’s proposed modified protective order. The proposed order
will prevent defendants from directly possessing any confidential
discovery materials, without supervision of counsel, to use for their
own criminal devices. The modified protective order also will
preserve the privacy and security of the significant amounts of PII
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and other sensitive information of third-parties, including victims,
while still allowing defendants access to the materials through their
counsel in preparation of their defense as discussed below.
B.
Defendants’ Violations of the Court’s Orders and Commission
of New Crimes Constitute Good Cause to Enter an Order
Clawing Back Confidential Discovery Materials from the
Defendants
The government also asks the Court to enter an order under Rule
16(d)(1) requiring counsel for the defendants to take possession of
any and all confidential discovery materials they previously provided
to their respective clients. In balancing the relative interests,
continuing to allow defendants unsupervised access to discovery
materials presents a demonstrable threat of “inflict[ing] hazards to
others.” Smith, 985 F. Supp. 2d at 523. At least two of the
original defendants have shown how the discovery materials can be
used to commit new crimes using the names “Iuliia Zhadko” and A.D.
And dozens of additional fake, stolen, and synthetic identities
remain accessible to defendants to use to engage in further criminal
activity, as well as dozens of fake and stolen business names. Good
cause thus exists to enter an order clawing back all confidential
discovery materials from the defendants.
C.
The Proposed Modified Protective Order Will Not Unduly
Prejudice Defendants
The proposed modified protective order will not unduly prejudice
the defense in preparation for trial in this case. Defendants will
continue to have the opportunity to review discovery, either from
home through any number of video-teleconferencing platforms (e.g.,
Zoom, WebEx, Microsoft Teams, Blue Jeans), or in their respective
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counsel’s offices.8 Entry of the proposed modified protective order
will not delay such review in any respect. Moreover, defendants will
continue to have the opportunity to review a copy of the discovery
materials that has not been redacted to remove PII, which will make
preparation for trial easier than if the government were to produce a
copy that was redacted to remove PII (which is voluminous in this
case). Defendants therefore will be able to continue to participate
fully in all aspects of their defense.
In any event, in light of recent developments, the balancing of
interests has shifted drastically. At this stage, any argument that
the proposed modified protective order would unfairly inconvenience
defendants such that they could not adequately prepare for trial
should be met with skepticism. The original four defendants never
articulated a specific reason as to why it would be unfair to them if
they were not permitted to physically possess a copy of discovery
that included fake and stolen driver’s licenses, Social Security
cards, credit cards, bank account numbers and login credentials, and
other highly sensitive materials that can be used to commit further
crimes. And, in hindsight, defendants’ protestations appear to have
been pretext. Defendants’ violation of the Court’s orders and breach
of trust in this case necessitate more effective safeguards,
8 Only one of the eight defendants -- Arman Hayrapetyan, who is
one of the newly-charged defendants and was taken into custody on
March 25, 2021 -- is currently detained pending trial in this case.
As previously noted, defendant Hayrapetyan is alleged to have stolen
the identities of at least two people and two businesses in
furtherance of the fraudulent scheme. (See, e.g., id., ¶¶ 27.a,
27.b, 27.c, 31, 33 (Overt Act Nos. 1-7), 50-51.) The government
understands that defense counsel currently are permitted to conduct
client meetings through both in-person meetings and, where necessary,
video-teleconferencing technology at the Metropolitan Detention
Center, where defendant Hayrapetyan is believed to be housed.
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including requiring that defense counsel maintain sole custody of the
confidential discovery materials. See Johnson, 191 F. Supp. 3d at
374 (“[G]iven the sensitive nature of the covered documents,
Defendants’ ‘just trust us’ approach is simply inadequate as a matter
of law.”). Such conditions requiring defendants review discovery
with counsel are not uncommon notwithstanding defendants’ typical
arguments regarding prejudice.9 See, e.g., Concord Mgmt., 404 F.
Supp. 3d at 77; United States v. Johnson, 191 F. Supp. 3d at 374;
United States v. Workman, 2019 WL 276843, at *2.
D.
The Terms of the Proposed Modified Protective Order are
Reasonable and Narrowly Tailored to Address the
Demonstrated Risks of Specific Injury
The government’s proposed protective order is the same in nearly
all material respects as the standard protective order the government
initially sought, and which is, notably, fundamentally the same order
that is the product of negotiation with the Federal Public Defender’s
Office and which is used throughout this District in criminal cases.
(See ECF 65-1; ECF 65, André Decl., ¶ 14.) Rather than repeat the
9 Defendants R. Ayvazyan’s and T. Dadyan’s violations of this
Court’s orders and unremitting criminal conduct have given the
government significant cause for concern about their continued review
of PII in this case, even through their counsel. Indeed, given the
assurances made by counsel for defendant R. Ayvazyan in response to
the risks identified by the government in its initial application,
the government’s concerns now extend to counsel’s ability to monitor
their client and prevent his misuse of discovery. (ECF 74 at 3.)
Nonetheless, the government is not at this stage seeking an order
barring defendants from even having access to confidential discovery,
as courts have found appropriate in certain cases. See, e.g., United
States v. Concord Mgmt. & Consulting LLC, 404 F. Supp. 3d 67, 77
(D.D.C. 2019) (collecting cases where “courts have outright barred
counsel from discussing certain discovery with their clients”)
(emphasis in original). However, should the government become aware
of continuing abuses of discovery, including for the purpose of
committing new crimes, following the entry of the proposed modified
protective order, the government reserves its rights to seek
additional restrictions on the discovery in this case under Federal
Rule of Criminal Procedure 16(d)(1).
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explanation as to why these terms are reasonable and tailored in
light of the risks of specific injury posed by the defendants in this
case, the government expressly incorporates its initial application
by reference. (See ECF 65, André Decl.)10 The lone material addition
to the initial protective order is to include one additional category
of confidential information, defined as “CI Materials,” which is
reasonable and tailored to address the unique risks presented by the
production of information provided by confidential informants or
cooperating witnesses who may testify at trial.11
E.
An Ex Parte Order Is Appropriate and Necessary to Limit the
Opportunities for Defendants to Commit New Crimes While on
Pretrial Release and Cause Further Harm
The government submits this application on an ex parte basis for
at least three reasons.
First, the Court should take immediate action to prevent the
original defendants from using the discovery materials to commit new
crimes, including further laundering and spending of the stolen
disaster relief money. This is a demonstrated risk of specific
injury, and that risk is ongoing due to the sheer number of fake,
stolen, and synthetic identities and fake and stolen business names
available to the original defendants, and accompanying bank accounts.
Defendants R. Ayvazyan and T. Dadyan have already been indicted for
using two of the dozens of the fake, stolen, and synthetic identities
10 The terms of the proposed modified protective order, including
the conditions precluding the defendants from possessing sensitive
personal and financial information, also are consistent with prior
protective orders entered by this Court. See, e.g., Protective
Order, United States v. Ohiri, No. CR 19-0042-SVW, Dkt. 35 (C.D. Cal.
Mar. 14, 2019).
11 The government anticipates producing such discovery upon the
Court’s entry of the proposed modified protective order or imposition
by the Court of otherwise adequate measures to protect any
confidential informants in this case.
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contained in the discovery materials. And the government’s
investigation into the commission of even more crimes is ongoing.
Second, whereas the original indictment concerned 35 PPP and
EIDL loans, the first superseding indictment concerns over 150 PPP
and EIDL loans, and the government recently provided counsel for the
original defendants a substantial volume of new discovery materials
relating to these new loans. This presents additional opportunities
for the original defendants to cause more harm.
Third, this past week, the government produced a substantial
volume of discovery to counsel for the four newly-added defendants,
who pose the same risks and threats of harm as the original
defendants.
Thus, while the government complies with its discovery
obligations in a timely and diligent manner, the significant risk of
continued discovery abuses and the commission of new crimes increases
every day under the current protective order. The Court’s
intervention on an ex parte basis is necessary to implement standard
safeguards over the discovery through the government’s proposed
modified protective order.
IV.
CONCLUSION
For the foregoing reasons, the government respectfully requests
that this Court (1) enter the government’s proposed modified
protective order filed concurrently herewith; and (2) enter the
proposed order filed concurrently herewith requiring counsel to all
defendants to take possession of all discovery designated as
confidential under the existing protective order, whether in hard
copy or digital format, that counsel previously provided to
defendants.
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