Joint OPPOSITION to EX PARTE APPLICATION for Reconsideration of Scheduling Order… — USA v. Ayvazyan et al (Dkt. 351)

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Defendants Richard Ayvazyan's and Marietta Terabelian's Joint Opposition to Government's Application for Reconsideration, Document 351, filed 05/20/21 in United States of America v. Richard Ayvazyan, Marietta Terabelian, et al., Case No. 20-cr-579 (SVW), in the United States District Court, Central District of California, before Hon. Stephen V. Wilson, with a Hearing Date of May 26, 2021 at 11:00 a.m. The brief responds to the government's ex parte application for reconsideration of the scheduling order setting a Kastigar hearing (Dkt. 344). It argues that Kastigar applies to compelled statements from Miami International Airport, that providing digital device passcodes is testimonial, that the foregone conclusion exception does not apply, and that the Kastigar hearing should proceed before trial as the Court scheduled it.

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OPPOSITION TO APPLICATION FOR RECONSIDERATION 
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Ashwin J. Ram (SBN 227513) 
aram@steptoe.com 
Michael A. Keough (SBN 327037) 
mkeough@steptoe.com 
Meghan L. Newcomer (pro hac vice) 
mnewcomer@steptoe.com 
Nicholas P. Silverman (pro hac vice) 
nsilverman@steptoe.com 
STEPTOE & JOHNSON LLP 
633 West Fifth Street, Suite 1900 
Los Angeles, CA 90071 
Telephone: (213) 439-9400 
Facsimile: (213) 439-9599 
 
Counsel for Defendant Richard Ayvazyan 
 
John L. Littrell (SBN 221601) 
jlittrell@bklwlaw.com 
Ryan V. Fraser (SBN 272196) 
rfraser@bklwlaw.com 
BIENERT KATZMAN LITTRELL 
WILLIAMS, LLP 
601 W. 5th Street, Suite 720 
Los Angeles, CA 90071 
Telephone: (213) 528-3400 
Facsimile: (949) 369-3701 
 
 
Counsel for Defendant Marietta Terabelian 
 
UNITED STATES DISTRICT COURT 
CENTRAL DISTRICT OF CALIFORNIA  
 
 
UNITED STATES OF AMERICA, 
 
                              Plaintiff, 
 
v. 
 
RICHARD AYVAZYAN, 
MARIETTA TERABELIAN,  
et al., 
 
 
Defendants. 
 
 Case No.  20-cr-579 (SVW) 
 
DEFENDANTS RICHARD 
AYVAZYAN’S AND MARIETTA 
TERABELIAN’S JOINT 
OPPOSITION TO 
GOVERNMENT’S APPLICATION 
FOR RECONSIDERATION 
 
Hon. Stephen V. Wilson 
 
Hearing Date:   May 26, 2021 
Time:                11:00 a.m. 
 
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TABLE OF CONTENTS 
PRELIMINARY STATEMENT....................................................................................... 1 
I. 
KASTIGAR APPLIES TO THE COMPELLED STATEMENTS FROM 
MIAMI INTERNATIONAL AIRPORT ................................................................ 3 
A. 
KASTIGAR APPLIES TO ACTUALLY COMPELLED 
STATEMENTS, NOT MIRANDA VIOLATIONS INVOLVING 
OTHERWISE VOLUNTARY STATEMENTS .......................................... 4 
B. 
THE NINTH CIRCUIT AND OTHER COURTS HAVE 
REPEATEDLY REJECTED THE GOVERNMENT’S PROPOSAL 
TO LIMIT KASTIGAR TO DEFENDANTS “COMPELLED TO 
PROVIDE TESTIMONY THROUGH A GRANT OF 
IMMUNITY” ............................................................................................... 5 
II. 
THE COMPELLED STATEMENTS WERE TESTIMONIAL ............................ 9 
A. 
PROVIDING DIGITAL DEVICE PASSCODES IS 
TESTIMONIAL ........................................................................................... 9 
B. 
THE FOREGONE CONCLUSION EXCEPTION DOES NOT 
APPLY SIMPLY BECAUSE THE DEFENDANTS WERE 
COMPELLED ............................................................................................ 10 
III. 
THE KASTIGAR HEARING SHOULD BE HELD AS THE COURT HAS 
SCHEDULED IT BEFORE TRIAL ..................................................................... 13 
 
 
 
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TABLE OF AUTHORITIES 
 
Page(s) 
Cases 
Chavez v. Martinez, 
538 U.S. 760 (2003) ............................................................................................. 5, 6, 7 
In re Grand Jury Subpoena, 
383 F.3d 905 (9th Cir. 2004) ............................................................................... 11, 12 
In re Grand Jury Subpoena, 
75 F.3d 446 (9th Cir. 1996) ......................................................................................... 8 
In re Grand Jury Subpoena Dated March 25, 2011, 
670 F.3d 1335 (11th Cir. 2012) ....................................................................... 8, 10, 12 
Greene v. Johnson, 
No.12-cv-1824, 2013 WL 950788 (S.D. Cal. Feb. 4, 2013) ..................................... 13 
Hoffman v. United States, 
341 U.S. 479 (1951) ................................................................................................... 11 
Kastigar v. United States, 
406 U.S. 441 (1972) ............................................................................................ passim 
In re Residence in Oakland, Cal., 
354 F. Supp. 3d 1010 (N.D. Cal. 2019) ..................................................................... 12 
SEC v. Huang, 
No. 15-cv-269, 2015 WL 5611644 (E.D. Pa. Sept. 23, 2015) ................................... 12 
Subana v. Yarborough, 
130 F. App’x 101 (9th Cir. 2005) ................................................................................ 8 
Trethewey v. Farmon, 
39 F. App’x 591 (9th Cir. 2002) .................................................................................. 8 
United States v. Ahmed, 
94 F. Supp. 3d 394 (E.D.N.Y. 2015) ........................................................................... 8 
United States v. Allen, 
864 F.3d 63 (2d Cir. 2017)........................................................................................... 6 
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United States v. Antelope, 
395 F.3d 1128 (9th Cir. 2005) ..................................................................................... 8 
United States v. Barrera, 
415 F. Supp. 3d 832 (N.D. Ill. 2019) ......................................................................... 12 
United States v. Benson, 
No. 12-cr-480, 2016 WL 215233 (N.D. Cal. Jan. 19, 2016) ............................... 13, 14 
United States v. Danielson, 
325 F.3d 1054 (9th Cir. 2003) ........................................................................... 8, 9, 14 
United States v. Dudden, 
65 F.3d 1461 (9th Cir. 1995) ..................................................................................... 13 
United States v. Garrett, 
797 F.2d 656 (8th Cir. 1986) ..................................................................................... 15 
United States v. Ghailani, 
733 F.3d 29 (2d Cir. 2013)........................................................................................... 7 
United States v. Ghailani, 
743 F. Supp. 2d 242 (S.D.N.Y. 2010) ..................................................................... 6, 7 
United States v. Hubbell, 
530 U.S. 27 (2000) .............................................................................................. passim 
United States v. Kandik, 
633 F.2d 1334 (9th Cir. 1980) ..................................................................................... 8 
United States v. Kimball, 
884 F.2d 1274 (9th Cir. 1989) ..................................................................................... 8 
United States v. Macchia, 
861 F. Supp. 182 (E.D.N.Y. 1994) ............................................................................ 14 
United States v. Maffei, 
No. 18-cr-174, 2019 WL 1864712 (N.D. Cal. Apr. 25, 2019) .............................. 2, 10 
United States v. Montoya, 
45 F.3d 1286 (9th Cir. 1995) ..................................................................................... 14 
United States v. North, 
910 F.2d 843 (D.C. Cir. 1990) ............................................................................. 13, 15 
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United States v. North, 
920 F.2d 940 (D.C. Cir. 1990) ................................................................................... 13 
United States v. Patane, 
542 U.S. 630 (2004) ............................................................................................. 4, 5, 7 
United States v. Sanchez, 
334 F. Supp. 3d 1284 (N.D. Ga. 2018) ...................................................................... 10 
United States v. Squillacote, 
221 F.3d 542 (4th Cir. 2000) ....................................................................................... 9 
United States v. Zielezinski, 
740 F.2d 727 (9th Cir. 1984) ..................................................................................... 15 
In re White Google Pixel 3 XL, 
398 F. Supp. 3d 785 (D. Idaho 2019) ........................................................................ 10 
Statutes 
28 U.S.C. § 2254(d)(1) ...................................................................................................... 8 
 
 
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PRELIMINARY STATEMENT 
The Government’s Ex Parte Application for Reconsideration of Scheduling 
Order Setting Kastigar Hearing (Dkt. 344) (“App’n for Reconsideration”) is a 
transparent and desperate attempt to delay the inevitable: findings of evidentiary use of 
tainted information, findings of non-evidentiary use of tainted information, 
disqualification of the prosecution team, and dismissal.  The government violated the 
Fifth Amendment by refusing requests for counsel, purporting to detain individual 
travelers indefinitely, and compelling those travelers to provide testimonial statements 
in violation of the Fifth Amendment.  The consequences are that the resulting 
information and everything directly or indirectly derived from that information are 
tainted and must be expunged.  And the burden is entirely on the government. 
The government’s arguments rest on the thinnest of reeds.  First, relying on a 
decade-old district court case that has never been cited out-of-circuit or agreed with by 
its own Circuit Court, the government tries to paint a misleading picture in its argument 
that applying Kastigar to out-of-court compelled and involuntary statements rather than 
testimony compelled through a grant of immunity would be a “sea change.”  It 
wouldn’t.  The government’s argument based on Miranda violations is a red herring 
because as the Court’s April 27, 2021 Order observed, there is a doctrinal distinction 
between baseline Miranda violations and the far narrower category of statements that 
are “actually coerced.”  This case falls in that latter category.  The case cited by the 
government ignores the plain logic of Kastigar that there is “no justification in reason 
or policy” to provide greater protections to compelled in-court testimony than 
compelled out-of-court statements (so-called “coerced confessions”).  See infra § I.B.  
Moreover, the Ninth Circuit has rejected the government’s proposed limitation to in-
court testimony holding that Kastigar protections apply to out-of-court statements.  
There is no reason to distinguish between the out-of-court compelled statements in 
these Ninth Circuit cases and the ones at issue here. 
Second, the government strains credulity to argue that the forgone conclusion 
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doctrine—a standard applicable to subpoenas of information where the government 
already knows exactly what exists and should be produced in response to a subpoena—
applies to compelling individual travelers to provide the passcodes to six digital devices 
merely in their possession and over 500,000 pages of data.  The Court need not read 
past the first case the government cites—United States v. Hubbell, 530 U.S. 27 
(2000)—which reasoned that the act of production was protected by the Fifth 
Amendment (and therefore protected from derivative use) because “[t]he assembly of 
those documents was like telling an inquisitor the combination to a wall safe, not like 
being forced to surrender the key to a strongbox.”  Id. at 43.  As a court in this circuit 
recently observed in holding that providing the passcode to three smartphones was 
testimonial, “provision of a passcode bears a striking similarity to ‘telling an inquisitor 
the combination to a wall safe.”  United States v. Maffei, No. 18-cr-174, 2019 WL 
1864712, at *6 (N.D. Cal. Apr. 25, 2019) (quoting Hubbell, 530 U.S. at 43).      
In the government’s last-ditch effort to shield itself from inquiry, it 
unsurprisingly posits that the jurors, Court, defendants, government, and others should 
expend untold resources on a trial and ignore the majority position (including 
statements from the Supreme Court and Ninth Circuit) that a pre-trial Kastigar hearing 
is the preferred procedure.  The argument made by the government relies on assuming a 
fact pattern that is not presented: tainted information obtained after an investigation was 
substantially complete that was not put to non-evidentiary use in investigating, 
interpreting evidence, building a case, approaching witnesses, drafting indictments, and 
pre-trial strategy.  In this case, however, the government has already conceded that 
“The government’s charging theory is that ‘Iuliia Zhadko’ is a fake identity that 
Defendant used as an alias to commit crimes ….”1 and testified under oath that the 
                                                                                                                                                                      
1 Opp’n to Mot. to Dismiss for Prosecutorial Misconduct at 17 n.11 (Dkt. 310); see also App’n for 
Modified Protective Order at 10-11 (Dkt. 219) (arguing government’s case theory that Zhadko is “the 
unique synthetic identity belonging to defendant R. Ayvazyan”). 
 
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source of that “charging theory” was tainted evidence.2  A pretrial hearing is necessary 
to establish just how far the taint migrated through the government’s trial team and 
confirm that dismissal of the indictment is merited.   
To the extent the government is simply arguing it cannot meet its heavy burden 
of proof, the defendants agree.  There is simply no basis to delay justice here.  
Accordingly, the court should not reconsider the Kastigar hearing it set and should 
instead require the government to produce the information requested by Manuk 
Grigoryan’s Joinder (Dkt. 346 at 4): (1) testimony from all individuals (agents and 
prosecutors) who possessed, reviewed, or discussed the tainted information, along with 
affirmative proof that the tainted information did not affect their actions or decision-
making process in any manner; (2) disclosure of the grand jury transcripts and exhibits; 
and (3) disclosure of proposed trial exhibits. 
I. 
KASTIGAR APPLIES TO THE COMPELLED STATEMENTS FROM 
MIAMI INTERNATIONAL AIRPORT 
In Kastigar v. United States, the Supreme Court held that the Fifth Amendment 
prohibits the government from using testimony or other information compelled by the 
government “or any information directly or indirectly derived from such testimony or 
other information.”  Kastigar v. United States, 406 U.S. 441 (1972); see Motion For 
Kastigar Hearing, To Disqualify the Prosecution Team, and To Dismiss at 4-5 (Dkt. 
438).  The Supreme Court did not hold that this prohibition only applies to some Fifth 
Amendment violations.  To the contrary, the government’s proposal to carve out out-of-
court coerced confessions and subject them to lesser protections would undermine a key 
basis of the Supreme Court’s holding that derivative-use immunity was sufficient for 
compelled testimony:  
 
One raising a claim under this statute need only show that he testified 
under a grant of immunity in order to shift to the government the heavy 
                                                                                                                                                                      
2 Oct. 22, 2020 Hr’g Tr. at 23-24 (Dkt. 310-6) (“[O]nce the CBP stopped for the secondary inspection, 
we learned that there was a photograph of Iuliia Zhadko on the digital device and we made the 
connection that Iuliia Zhadko was, in fact, an alias of Richard Ayvazyan.”). 
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burden of proving that all of the evidence it proposes to use was derived 
from legitimate independent sources.[] On the other hand, a defendant 
raising a coerced-confession claim under the Fifth Amendment must first 
prevail in a voluntariness hearing before his confession and evidence 
derived from it become inadmissible.[]   
There can be no justification in reason or policy for holding that 
the Constitution requires an amnesty grant where, acting pursuant to 
statute and accompanying safeguards, testimony is compelled in exchange 
for immunity from use and derivative use when no such amnesty is 
required where the government, acting without colorable right, coerces a 
defendant into incriminating himself.   
Id. at 462 (emphasis added).  In other words, the Supreme Court both stated that 
coerced out-of-court statements require derivative exclusion and held that there was 
“no justification in reason or policy” for elevating compelled testimony protections 
above those accorded to coerced confessions.  This is precisely what the government 
proposes to do here.   
The government relies on a single out-of-circuit district court case to argue that 
applying Kastigar to out-of-court statements would be a “sea change in Fifth 
Amendment jurisprudence,” because it would supposedly require the disqualification of 
prosecutors who are tainted by information “obtained in violation of Miranda.”  Gov’t 
App’n for Reconsideration at 7.  The government is wrong for two reasons: (1) this 
Court has already held that this case involves coerced information, not information 
merely obtained in violation of Miranda, and (2) courts including the Ninth Circuit 
have repeatedly applied the Kastigar standard to coerced out-of-court statements. 
A. 
Kastigar Applies to Actually Compelled Statements, Not Miranda 
Violations Involving Otherwise Voluntary Statements 
The coerced-confessions standard applies to statements actually compelled3 in 
violation of the Fifth Amendment, not to all Miranda violations.  Applying the rule 
from United States v. Patane, 542 U.S. 630 (2004), this Court held in its April 27, 2021 
                                                                                                                                                                      
3 As noted in Ayvazyan and Terabelian’s Motion, the Supreme Court equates coercion, 
involuntariness, and compulsion, and uses the words interchangeably.  See Dkt. 338 at 6-7 n.7. 
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Order that the statements in this case met the “actually coerced” standard and were “not 
voluntary.”  Dkt. 296 at 17, 18.  And as Patane explained, there is a large difference 
between “actually coerced” statements and simple Miranda violations: 
 
Unlike the Fourth Amendment’s bar on unreasonable searches, the Self–
Incrimination Clause is self-executing. We have repeatedly explained “that 
those subjected to coercive police interrogations have an automatic 
protection from the use of their involuntary statements (or evidence 
derived from their statements) in any subsequent criminal trial.” … This 
explicit textual protection supports a strong presumption against expanding 
the Miranda rule any further.  
Patane, 542 U.S. at 640 (quoting Chavez v. Martinez, 538 U.S. 760, 769 (2003) 
(plurality opinion)).  Thus, the Supreme Court made clear that “those subjected to 
coercive police interrogations” are protected by use and derivative use immunity and 
that this protection for coerced statements exceeds the protection for straight-forward 
Miranda violations.  Lest there be any doubt what Chavez meant by “automatic 
protection from the use of their involuntary statements (or evidence derived from their 
statements),” the opinion continued in the next sentence: “This protection is, in fact, 
coextensive with the use and derivative use immunity mandated by Kastigar when the 
government compels testimony from a reluctant witness.”  Chavez, 538 U.S. at 769-
770.  In sum, coerced confessions are protected by the Kastigar standard, but that 
standard does not apply to voluntary statements taken in violation of Miranda.  Because 
the Court has found that the statements were involuntary, Kastigar applies. 
B. 
The Ninth Circuit and Other Courts Have Repeatedly Rejected the 
Government’s Proposal to Limit Kastigar to Defendants “Compelled 
to Provide Testimony Through a Grant of Immunity” 
 
The government’s claim that applying Kastigar to coerced confessions would 
represent a “sea change” is wrong.  One need look no further than the fact that the only 
decision the government cites that actually held that Kastigar does not apply to coerced 
confessions is a decade-old out-of-circuit district court case involving the intersection 
of a national security intelligence-gathering mission and the belated criminal 
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prosecution of an alleged member of Al Qaeda, who was indicted for “conspiring with 
Usama Bin Laden and others to kill Americans abroad by, among other means, 
bombing the United States embassies in Nairobi, Kenya, and Dar es Salaam, Tanzania, 
bombings in which 224 people reportedly were killed and many more injured.”  See 
Gov’t App’n for Reconsideration at 2-3 (citing United States v. Ghailani, 743 F. Supp. 
2d 242 (S.D.N.Y. 2010)). 
This Court should not rely on the “analysis” in Ghailani to resolve the question 
whether Kastigar applies to involuntary and coerced confessions.  First, and tellingly, 
no circuit court and no district court outside of the Second Circuit has relied on this 
aspect of Ghailani.  Indeed, the lone circuit court case to reference Ghailani – United 
States v. Allen, 864 F.3d 63, 90 n.121 (2d Cir. 2017) – did so in a footnote to point out 
that the U.S. Supreme Court in Chavez v. Martinez, 538 U.S. 760, 769–70 (2003) 
(plurality opinion) reached a different conclusion.  Allen, 864 F.3d at 90, n.121 (quoting 
Chavez (“[O]ur cases provide that those subjected to coercive police interrogations 
have an automatic protection from the use of their involuntary statements (or evidence 
derived from their statements) in any subsequent criminal trial. This protection is, in 
fact, coextensive with the use and derivative use immunity mandated by Kastigar when 
the government compels testimony from a reluctant witness.” (citations omitted)). And 
even this circuit-level authority citing Ghailani in the context of a specifically-
discussed Kastigar issue ultimately applied a Kastigar analysis to the facts of the case 
(concerning statements compelled by a foreign official without a promise of derivative 
immunity).    
Ghailani is less than a model of analytical clarity.  Ghailani involved Classified 
Information Procedures Act filings that were heavily redacted and subject to a 
classified, sealed, record.  Publicly available briefing underlying the case does not make 
clear that the defense even squarely requested a Kastigar hearing with the burden on the 
government to prove no evidentiary or non-evidentiary uses were made of the coerced 
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testimony.  Indeed, even the court initially framed the parties’ dispute as one over the 
reach of the “fruit of the poisonous tree” doctrine:   
 
Ghailani claims that all of his custodial statements about Abebe were 
coerced and obtained in violation of his right to counsel.  He argues that 
Abebe should be precluded from testifying at trial because that testimony 
would constitute “fruit of the poisonous tree”—evidence derived from his 
illegally obtained statements. 
Ghailani, 743 F. Supp. 2d at 249.  Although the court later noted that the defendant 
“contends instead that [the cooperator] may not be called because the government has 
failed to establish that [the cooperator’s] testimony ultimately is traceable to a source 
entirely independent of Ghailani’s statements,” and further shared its view that 
Ghailani’s “position derives from Kastigar v. United States,” the overwhelming 
majority of the decision (and remaining portion of the analysis) focused almost 
exclusively on the scope of the “fruit of the poisonous tree” analysis.  Tellingly, this 
issue was not even raised on appeal.  See United States v. Ghailani, 733 F.3d 29, 36 (2d 
Cir. 2013).  
Ghailani advanced and was premised on the fundamentally flawed position that 
there were policy reasons to accord greater protection to compelled testimony than 
coerced confessions. 743 F. Supp. 2d at 252-53.  This position simply ignored 
Kastigar’s warning to the contrary that there was “no justification in reason or policy” 
to accord protections to compelled testimony beyond the use and derivative use 
immunity accorded to coerced confessions.  406 U.S. at 462.  Nor did Ghailani even 
attempt to address the contrary statements in Chavez and Patane (both of which 
indicate that coerced confessions are entitled to use and derivative use immunity under 
Kastigar).  It is, perhaps, because of these flaws that no circuit court and no district 
court outside of the Second Circuit has ever relied on Ghailani to apply a lower 
standard than Kastigar to involuntary and coerced statements.  
 
In some cases, the issue of whether the Kastigar standard or Fourth Amendment 
standard applies is never raised.  Coerced confessions typically come at the end of an 
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investigation, not the outset, where the difference between the standards may not be 
outcome determinative.  The government makes much of Ghailani’s footnote of 
“[l]ower courts” that have “assumed” that a different doctrine applies to coerced 
confessions, which included three Ninth Circuit cases: two unpublished habeas cases 
(in which AEDPA required deference to the state courts’ legal conclusions, see 28 
U.S.C. § 2254(d)(1)) and a 1989 Sixth Amendment decision that has since been 
supplanted by Danielson’s holding that Kastigar applies to a Sixth Amendment 
analysis.4  None of these three cases actually or specifically addressed whether Kastigar 
applies to coerced confessions.   Instead, the issue was not raised and the courts applied 
the more well-known Fourth Amendment standard.   
 
Where the issue of Kastigar’s application to coerced out-of-court statements has 
actually been ruled upon by the Ninth Circuit, the court has squarely rejected the 
government’s argument that Kastigar is limited to defendants “compelled to provide 
testimony through a grant of immunity.”  Gov’t App’n for Reconsideration at 2.  In In 
re Grand Jury Subpoena, the Ninth Circuit held that where “officers were compelled to 
make [] statements under threat of loss of their employment,” a Kastigar hearing would 
be held to protect the officers’ Fifth Amendment rights.  75 F.3d 446, 447-48 (9th Cir. 
1996).  Similarly, in United States v. Antelope, the court held that the Fifth Amendment 
prohibited the government from compelling a defendant to make statements to a 
counselor unless it accorded him “immunity … consistent with the Supreme Court’s 
opinion in Kastigar.”  395 F.3d 1128, 1140-41 & n.5 (9th Cir. 2005); see also United 
States v. Hubbell, 530 U.S. 27, 45 (2000) (holding that compelled to produce 
documents required Kastigar protections); In re Grand Jury Subpoena Dated March 
                                                                                                                                                                      
4 See Subana v. Yarborough, 130 F. App’x 101 (9th Cir. 2005) (28 U.S.C. § 2254 case; no mention of 
Kastigar); Trethewey v. Farmon, 39 F. App’x 591 (9th Cir. 2002) (no mention of Kastigar and 
concluding that statements were voluntary); United States v. Kimball, 884 F.2d 1274 (9th Cir. 1989) 
(no mention of Kastigar, and since superseded in that respect by Danielson).  This is also true of the 
government’s citations to United States v. Ahmed, 94 F. Supp. 3d 394, 438 (E.D.N.Y. 2015) and 
United States v. Kandik, 633 F.2d 1334 (9th Cir. 1980), where there was no mention, specific 
discussion, or analysis of Kastigar.      
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25, 2011, 670 F.3d 1335, 1350-53 (11th Cir. 2012) (“March 2011 Subpoena”) (holding 
that Kastigar protections were necessary to compel production of decryption 
password).  If the government cannot compel a defendant to make statements to an 
employer or a counselor without according Kastigar protections, then it cannot compel 
a defendant to make statements to CBP without according those protections.  The Ninth 
Circuit has therefore closed the door on the government’s proposed limitation on 
Kastigar.5 
II. 
THE COMPELLED STATEMENTS WERE TESTIMONIAL  
A. 
Providing Digital Device Passcodes Is Testimonial 
The Application for Reconsideration’s argument that the Fifth Amendment does 
not apply to the provision of phone passcodes is rebutted by the very first case it cites: 
United States v. Hubbell, 530 U.S. 27 (2000).  In Hubbell, the Court held that an act of 
production was testimonial and required derivative suppression because “[t]he 
assembly of those documents was like telling an inquisitor the combination to a wall 
safe, not like being forced to surrender the key to a strongbox.”  530 U.S. at 43 (holding 
                                                                                                                                                                      
5 In an apparent attempt to confuse the issues, the government cites to United States v. Squillacote, 
221 F.3d 542, 558-559 (4th Cir. 2000), to support the proposition that involuntary or coerced 
confessions do not fall within the purview of Kastigar.  But the Fourth Circuit’s analysis in 
Squillacote concerned the government’s violation of an evidentiary privilege by covertly wiretapping 
psychotherapist-privileged communications.  By definition, because the participants to the 
conversation were not aware of the government’s presence, they were not coerced or compelled by the 
government in any way.  Nor could such conversations be described as involuntary.  Ironically, while 
the government has reviewed attorney-client privileged communications in this case as indicated by a 
May 14, 2021 clawback letter regarding two such intrusions, no defendant has yet claimed an 
entitlement to a Kastigar hearing with respect to these confirmed privilege invasions.  Squillacote 
simply has no bearing on the involuntary and coerced statements the government obtained at the 
Miami Airport in this case.   
Even if Squillacote applied, however, the government neglects to inform the Court that the Ninth 
Circuit has reached the opposite result in an analogous case, holding that where the government 
intrudes on the defendant’s attorney-client privilege via an out-of-court conservation and obtains 
privileged information, the Kastigar standard applies.  United States v. Danielson, 325 F.3d 1054, 
1071 (9th Cir. 2003) (noting that Kastigar prohibits both direct and indirect use of tainted information 
including informing pre-trial strategy, interpreting evidence, or focusing an investigation).  It may be 
that the Fourth Circuit has chosen to draw a line somewhere between out-of-court privileged 
conversations and in-court testimony, but the Ninth Circuit has not. 
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that the act of production of documents was testimonial because it would be a “step in a 
chain of evidence”).  If the combination to a wall safe is testimonial, then the passcode 
to a digital device is testimonial.  Indeed, this was the logic of the U.S. District Court 
for the Northern District of California in holding that providing the passcode to three 
smartphones was testimonial.  United States v. Maffei, No. 18-cr-174, 2019 WL 
1864712, at *6 (N.D. Cal. Apr. 25, 2019) (“[P]rovision of a passcode bears a striking 
similarity to ‘telling an inquisitor the combination to a wall safe.’” (quoting Hubbell, 
530 U.S. at 43)). 
Hubbell’s logic does not stand alone.  Courts have repeatedly held that providing 
the passcode to a digital device is testimonial.  See, e.g., March 2011 Subpoena, 670 
F.3d at 1350-53 (“Requiring Doe to use a decryption password is most certainly more 
akin to requiring the production of a combination because both demand the use of the 
contents of the mind, and the production is accompanied by the implied factual 
statements [regarding the defendant’s role in placing contents on and encrypting the 
hard drive] noted above that could prove to be incriminatory.”); In re White Google 
Pixel 3 XL, 398 F. Supp. 3d 785, 793 (D. Idaho 2019) (“caselaw makes a clear 
distinction between biometric features and passcodes on the basis that passcodes are 
testimonial.”); United States v. Sanchez, 334 F. Supp. 3d 1284, 1295 (N.D. Ga. 2018) 
(holding production of iPhone passcodes was testimonial).   
B. 
The Foregone Conclusion Exception Does Not Apply Simply Because 
the Defendants Were Compelled  
The government argues that the “foregone conclusion” exception applies to the 
contents of the six digital devices at issue.  App’n for Reconsideration at 9-10.  This 
argument is fundamentally flawed from the outset.  The defendants are aware of no 
case that has applied the foregone conclusion exception where the ownership or use of 
the devices at issue was contested.  Here, the parties dispute both who owns the devices 
at issue and whether the devices are used by non-owners who would bear responsibility 
for their contents.  See, e.g., Mot. to Dismiss for Prosecutorial Misconduct at 4 (Dkt. 
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289) (arguing that the government’s attribution of phones’ content to Ayvazyan was 
incorrect); id. at 16 (arguing that because of the evidence that phones were passed 
around rather than used by the account holder, mere ownership would not establish 
responsibility for the phones’ content); Opp’n to Mot. to Dismiss at 17 n.12 (Dkt. 310) 
(attributing ownership and use of disputed phones to Ayvazyan); Reply Supp. Mot. to 
Dismiss at 16 (arguing that evidence of third parties’ responsibility was exculpatory); 
Mot. to Supp. at 6 (Dkt. 135) (arguing that phones belonged to Ayvazyan’s business 
associate).6  The fact that Terabelian and Ayvazyan, under compulsion, confessed to 
knowing the passcodes to the devices was a statement that “would furnish a link in the 
chain of evidence needed to prosecute the claimant[s] for a federal crime,” and is 
therefore testimonial and protected by the Fifth Amendment.  Hubbell, 530 U.S. at 38 
(quoting Hoffman v. United States, 341 U.S. 479, 486 (1951)).  The Court need not 
delve into the morass of the foregone conclusion exception because the link-in-the-
chain rule applies. 
Moreover, the foregone conclusion exception does not apply because the 
government has not carried its burden to prove with reasonable particularity that it has 
such extensive knowledge of the documents produced that the “existence, possession, 
and authenticity of the documents” were a foregone conclusion before the act of 
production and “the witness adds little or nothing to the sum total of the Government’s 
information by conceding that he in fact has the documents ….”  In re Grand Jury 
Subpoena, 383 F.3d 905, 910 (9th Cir. 2004).  In Grand Jury Subpoena, the Ninth 
Circuit emphasized that the government must carry its burden of proof by 
                                                                                                                                                                      
6 The government misrepresents the evidence in its argument that this is not disputed citing paragraph 
18 of Ayvazyan’s Declaration (Dkt. 134) to argue that he has consistently claimed that all of the 
phones in question were his.  That paragraph in fact, states the opposite: “Officer Smith next removed 
several phones, and asked who the phones belonged to. I explained that these phones belonged to 
my business associate and that they had given the phones to me for the trip.”  Dkt. 134 ¶ 18 
(emphasis added).  Regardless of ownership, the key questions are access and use.  Even if the 
government’s misrepresentation were correct, Ayvazyan’s provision of passcodes in a case allegedly 
involving shared phones registered to non-users would be a link in the chain of evidence to 
demonstrate that he was one of the users of the phones found in his possession. 
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“establish[ing] the existence of the documents sought and [the individual]’s possession 
of them with ‘reasonable particularity’ before the existence and possession of the 
documents could be considered a foregone conclusion and production therefore would 
not be testimonial.”  383 F.3d at 910.   
The government does not come close to demonstrating extensive knowledge with 
reasonable particularity.  Its entire argument is that (1) the phones were recovered on 
Ayvazyan’s and Terabelian’s persons and (2) that they knew and divulged the 
passcodes to the devices.  App’n for Reconsideration at 9-10.  Were the government 
correct that these facts are sufficient, it would open a gaping hole in the protection for 
phone passcodes because this is true of every compelled passcode case.  The 
“exception” would eat the rule.  Indeed, courts have repeatedly and emphatically 
rejected the government’s contention that these facts (one of which was not obtained 
until after compulsion)7 are sufficient to justify compelling digital device passcodes.  
See, e.g., In re Residence in Oakland, Cal., 354 F. Supp. 3d 1010, 1017-18 (N.D. Cal. 
2019) (holding that in light of the breadth of data on smartphones and the increased 
production, “the Government inherently lack[ed] the requisite prior knowledge of the 
information and documents”); United States v. Barrera, 415 F. Supp. 3d 832, 838 n.2 
(N.D. Ill. 2019) (foregone conclusion exception “does not apply, as the government 
does not know exactly all the items it expects to find on this particular cell phone.”); 
SEC v. Huang, No. 15-cv-269, 2015 WL 5611644, at *3 (E.D. Pa. Sept. 23, 2015) 
(foregone conclusion exception did not apply to smart phones because SEC could only 
show possession and “sole use[] and possess[ion],” not the existence of the requested 
documents on the phones); see also March 2011 Subpoena, 670 F.3d at 1348 (rejecting 
                                                                                                                                                                      
7 The fact that the defendants divulged the passcodes after coercion is irrelevant to the foregone 
conclusion doctrine, which under Ninth Circuit law looks only to the government’s quantum of 
evidence before compulsion, not to what the compulsion reveals.  See Grand Jury Subpoena, 383 
F.3d at 910 (“When deciding whether the government has met its burdens of production and proof, 
courts should look to the quantum of information possessed by the government before it issued the 
relevant subpoena.”) (cleaned up).  When the government compelled the passcodes, the government 
did not know who owned or used the six digital devices in question. 
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foregone conclusion exception application to hard drive encryption key because the 
government must demonstrate that the digital files are foregone conclusions and 
“categorical requests for documents the Government anticipates are likely to exist 
simply will not suffice” under foregone conclusion exception).  Indeed, one need look 
no further to the passcode to a wall safe referenced in Hubble.  If “telling an inquisitor 
the combination to a wall safe,” 530 U.S. at 43, is not a foregone conclusion despite the 
obvious possession of the wall safe and divulging knowledge of its combination, then 
telling the inquisitor the passcodes to digital devices is not a foregone conclusion.  The 
Court should therefore reject the government’s meritless invitation to drastically 
diminish individual liberties over digital devices. 
III. 
THE KASTIGAR HEARING SHOULD BE HELD AS THE COURT HAS 
SCHEDULED IT BEFORE TRIAL 
The Supreme Court stated in Kastigar that part of the “heavy burden” “impose[d] 
on the prosecution [is] the affirmative duty to prove that the evidence it proposes to use 
is derived from a legitimate source wholly independent of the compelled testimony.”  
406 U.S. at 460 (emphasis added).  It would be nonsensical to impose a duty to 
disprove the taint of proposed evidence after that evidence has already been offered, 
thus courts in this circuit have commonly noted that Kastigar hearings are held before 
trial.  E.g., United States v. Dudden, 65 F.3d 1461, 1468 (9th Cir. 1995) (“Before trial, 
the government must prove the independent sources [of any evidence it intends to use] 
by a preponderance of the evidence” at a Kastigar hearing); United States v. Benson, 
No. 12-cr-480, 2016 WL 215233 (N.D. Cal. Jan. 19, 2016) (Kastigar hearing held 
before trial); Greene v. Johnson, No.12-cv-1824, 2013 WL 950788, at *17 (S.D. Cal. 
Feb. 4, 2013) (“The government must prove the independent nature of its sources 
before trial by a preponderance of the evidence and a Kastigar hearing is usually 
required to determine if the government has met its burden.”).  The Ninth Circuit is not 
alone in holding Kastigar hearings before trial.  See United States v. North, 910 F.2d 
843, 854, on pet. for reh’g, 920 F.2d 940 (D.C. Cir. 1990) (“A pre-trial hearing is the 
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most common choice.”); United States v. Macchia, 861 F. Supp. 182, 189 (E.D.N.Y. 
1994) (stating “under normal circumstances a Kastigar hearing should be conducted 
before trial”). 
A pre-trial hearing is the better practice because Kastigar requires the 
government to prove that it has not made evidentiary or non-evidentiary use of the 
tainted information.  United States v. Danielson, 325 F.3d 1054, 1072 (9th Cir. 2003) 
(“[The government] must show … that all of its pre-trial and trial strategy was based on 
independent sources.”).  It is telling that the government has failed to even mention the 
non-evidentiary use prohibition in its application for reconsideration.  Strategy in the 
non-evidentiary use context “is a broad term that includes, but is not limited to, such 
things as decisions about the scope and nature of the investigation, about what 
witnesses to call (and in what order), about what questions to ask (and in what order), 
about what lines of defense to anticipate in presenting the case in chief, and about what 
to save for possible rebuttal.”  Id.; United States v. Montoya, 45 F.3d 1286, 1293 (9th 
Cir. 1995) (“The focus of the inquiry under Kastigar is whether the immunized 
testimony was in any way used to build a case against [the defendants].”).   
As demonstrated by the recent United States v. Benson case out of the Northern 
District of California, the tainted information will require the disqualification of the 
case agents and prosecutors who were exposed to tainted information at the outset of 
the investigation and had their opinions and mindset irreparably tainted.  See Dkt. 338 
at 15-16 (summarizing Benson analysis).  Even where the taint occurred after a 
substantial portion of the investigation, “binding precedent does indeed cover non-
evidentiary uses, including adjustments to trial strategy in light of knowledge of such 
statements.”  Benson, 2016 WL 215233, at *4.  And because the tainted trial 
prosecutors could not disprove such adjustments, they had to be disqualified (and the 
case was later dismissed).  Id.  This case presents an even stronger argument for 
disqualification and dismissal.  The lead case agent has testified under oath to the 
importance of the tainted evidence.  The government has refused to disclose the extent 
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of the taint, which occurred early in the investigation, and the government has 
repeatedly used the tainted evidence in court filings, indictments, affidavits, and witness 
interviews.  Disproving non-evidentiary use is impossible. 
Where prosecutors’ impressions have been informed by tainted information, their 
judgments and decisions are tainted and they must be removed before going through the 
expense and burden of trial.  Under the circumstances, the government’s claim of 
“judicial economy” is without merit for the two reasons identified by the D.C. Circuit in 
explaining why “[a] pre-trial hearing is the most common choice”: (1) if the grand jury 
process was tainted, then the indictment must be dismissed, and (2) if the trial turns out 
to be tainted, then the defendants will be entitled to a new trial.  See North, 910 F.2d at 
854.   
Indictments tainted by information obtained in violation of the Fifth Amendment 
requires dismissal. See United States v. Zielezinski, 740 F.2d 727, 733–34 (9th Cir. 
1984) (“We cannot permit convictions to stand where indictments are tainted, and we 
must satisfy ourselves that prosecutors truly relied upon independent sources. . . . The 
government cannot simply provide transcripts to the court, in camera, and assume that 
it has met its Kastigar burden. Only a hearing can convincingly establish that the 
command of the Fifth Amendment has been satisfied.”); United States v. Garrett, 797 
F.2d 656, 664 (8th Cir. 1986) (“Indictments which rest upon evidence which is directly 
or indirectly the product of compelled testimony are unconstitutional. . . . Requiring the 
district court to hold an evidentiary hearing at which the government, confronted by 
defense counsel, must affirmatively demonstrate the independent source of the evidence 
upon which the indictment is based, will provide the defendant with the only 
meaningful method and opportunity to prove a violation of his fifth amendment 
privilege.”).   
This prohibition extends not just to evidentiary use of tainted information to 
obtain the indictment, but also to non-evidentiary use of tainted information to 
strategize about the indictment and case more broadly.  See Joint Mot. for Kastigar 
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Hearing, to Disqualify Prosecution Team, and to Dismiss at 8-11 (Dkt. 338) 
(summarizing prohibited uses with citations to authority).  The government has already 
effectively conceded that its indictments are tainted: “The government’s charging 
theory is that ‘Iuliia Zhadko’ is a fake identity that Defendant used as an alias to 
commit crimes ….”  Opp’n to Mot. to Dismiss for Prosecutorial Misconduct at 17 n.11 
(Dkt. 310); see also App’n for Modified Protective Order at 10-11 (Dkt. 219) (arguing 
government’s case theory that Zhadko is “the unique synthetic identity belonging to 
defendant R. Ayvazyan”).  S.A. Palmerton testified under oath that the source of that 
“charging theory” was tainted evidence: “[O]nce the CBP stopped for the secondary 
inspection, we learned that there was a photograph of Iuliia Zhadko on the digital 
device and we made the connection that Iuliia Zhadko was, in fact, an alias of Richard 
Ayvazyan.”  Dkt. 310-6 at 23-24 (emphasis added).  While the government has not yet 
produced the transcripts and exhibits to show how far the taint extended, it is far 
enough to require dismissal of the indictments.  The only question is whether those 
indictments are dismissed before or after trial. 
Any trial without a preceding Kastigar hearing would be an unnecessary waste of 
resources of the jurors, the Court, the defendants, the government, and everyone else 
involved.  There would be constant sidebars to discuss the taint of nearly every exhibit 
and witness statement making social distancing impossible and exacerbating the stress 
and frustration of jurors.  These decisions would have to be made on the fly without 
insight from which agents and prosecutors were aware of the evidence and used it to 
pursue investigatory leads, prepare witnesses, choose evidence, or otherwise spread 
taint throughout the case.  See Dkt. 338 at 8-9 (listing prohibited evidentiary and non-
evidentiary uses with supporting citations).  Moreover, if that trial ended in a 
conviction, a Kastigar hearing would be necessary and any conviction would likely be 
vacated by the Court because of the extent of the taint at the core of the government’s 
case theory, and the government’s admissions about the investigation that followed that 
taint.   
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The government’s application really comes down to a desire to hide its strategic 
choices.  The government argues it will be prejudiced by compiling its evidence8 and 
submitting declarations about its investigation.  Ayvazyan has been seeking information 
relating to the Kastigar issue for weeks.  The government failed to timely respond to 
these requests and refused to provide a substantive response.  Dkt. 338-3.  When the 
government finally responded (refusing to provide the information), Dkt. 338-4, 
Ayvazyan and Terabelian filed this motion that very night.  The government has had 
ample time to compile the requested information and it chose not to do so.9   
The government took an enormous gamble by compelling statements in violation 
of the Fifth Amendment. It has now lost that gamble, see Apr. 27, 2021 Order (Dkt. 
296), and the taint of the Miami airport stop has permeated the government’s case over 
the last seven months.  A pre-trial Kastigar hearing is necessary, the government’s 
application for reconsideration should be denied, and the government should be ordered 
to produce the information requested in Manuk Grigoryan’s Joinder (Dkt. 346 at 4): 
(1) testimony from all individuals (agents and prosecutors) who possessed, reviewed, or 
discussed the tainted information, along with affirmative proof that the tainted 
information did not affect their actions or decision-making process in any manner; (2) 
disclosure of the grand jury transcripts and exhibits; and (3) disclosure of proposed trial 
exhibits (which are already due to be produced on June 1). 
 
                                                                                                                                                                      
8 The government’s argument that “it is almost impossible to predict the evidence that will be admitted 
at trial” is nonsensical given that the government claimed to be “ready to be proceed to trial” on April 
5, 2021.  See Dkt. 267-2.  It is hard to fathom how the government could be ready to proceed to trial, 
yet not know which exhibits it intends to use in its case-in-chief or their admissibility.  Furthermore, 
the Kastigar hearing is scheduled to take place less than a week before the government’s exhibit list is 
due—not to mention six months after this case was indicted and more than two months after the Court 
ordered discovery deadline.  At this point, the government should know with a reasonable degree of 
certainty which exhibits it intends to introduce in its case-in-chief.     
9 The government suggests yet another continuance.  The defendants, who objected to the first two 
continuances, object once again.  A third continuance would be unfair and a violation of the 
defendants’ constitutional and statutory rights.  The government has had six months to prepare for 
trial.  It does not need more time. 
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Dated:   May 20, 2021 
 
Respectfully submitted, 
 
STEPTOE & JOHNSON LLP 
 
 
 
 
 
 
 
/s/ Ashwin J. Ram  
 
 
 
 
 
 
 
 
Ashwin J. Ram (SBN 227513) 
aram@steptoe.com 
Michael A. Keough (SBN 327037) 
mkeough@steptoe.com 
Meghan L. Newcomer (pro hac vice) 
mnewcomer@steptoe.com 
Nicholas P. Silverman (pro hac vice) 
nsilverman@steptoe.com 
633 West Fifth Street, Suite 1900 
Los Angeles, CA 90071 
Telephone: (213) 439-9400 
Facsimile: (213) 439-9599 
 
Counsel for Defendant Richard Ayvazyan 
 
BIENERT KATZMAN LITTRELL 
WILLIAMS, LLP 
 
/s/ John L. Littrell  
 
 
John L. Littrell (SBN 221601) 
jlittrell@bklwlaw.com 
Ryan V. Fraser (SBN 272196) 
rfraser@bklwlaw.com 
601 W. 5th Street, Suite 720 
Los Angeles, CA 90071 
Telephone: (213) 528-3400 
Facsimile: (949) 369-3701 
 
Counsel for Defendant Marietta Terabelian 
 
SIGNATURE ATTESTATION 
 
Pursuant to Local Rule 5-4.3.4(a)(i), the filer attests that all signatories listed, and 
on whose behalf the filing is submitted, concur in the filing’s content and have 
authorized the filing.  
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