Court filing
PROPOSED JURY INSTRUCTIONS (Annotated set) filed by Plaintiff USA as to Defendant… — USA v. Ayvazyan et al (Dkt. 373)
Record facts
| Court | U.S. District Court for the Central District of California |
|---|---|
| Filed | 2021-05-27 |
U.S. District Court for the Central District of California · No. 2:20-cr-00579-SVW · Doc. 373 · 2021-05-27 · Docket on CourtListener
Summary
The government's proposed jury instructions (annotated set) 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 May 27, 2021 as Doc. 373 ahead of a trial date of June 15, 2021. Filed under Rule 30 of the Federal Rules of Criminal Procedure, it states that on May 25, 2021 counsel for seven of the eight defendants did not consent to the government's proposed instructions and later said they would file a separate joint set. An index lists the proposed instructions, most taken from the Ninth Circuit Model Criminal Jury Instructions (2010 ed.), covering conspiracy, wire fraud, bank fraud, money laundering and aggravated identity theft. A second index lists forfeiture-phase instructions ending with No. 47, a Special Verdict Form. The 78-page filing carries the /s/ signature of Catherine Ahn.
Summary drafted by a model from the document's text below and checked by script against that text before publication. It is a navigation aid, not a reading of what the document proves. Where AI is used
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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)
CATHERINE AHN (Cal. Bar No. 248286)
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) 894-6527/2424/3819
Facsimile: (213) 894-6269/0141
E-mail:
Scott.Paetty@usdoj.gov
Catherine.S.Ahn@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,”
No. CR 20-579(A)-SVW
GOVERNMENT’S PROPOSED JURY
INSTRUCTIONS
[18 U.S.C. § 1349: Conspiracy to
Commit Bank Fraud and Wire Fraud;
18 U.S.C. § 1343: WireFraud;18
U.S.C. § 1344(2): Bank Fraud and
Attempted Bank Fraud; 18 U.S.C.
§ 1028A(a)(1): Aggravated Identity
Theft;18 U.S.C. § 1956(h): Money
Laundering Conspiracy; 18 U.S.C.
§ 1956(a)(1)(B)(i): Money
Laundering; 18 U.S.C.
§ 3147:Offense Committed While on
Release; 18 U.S.C. §§ 981,
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“Anton Kudiumov,”
ARMAN HAYRAPETYAN,
EDVARD PARONYAN,
aka “Edvard Paronian” and
“Edward Paronyan,” and
VAHE DADYAN,
Defendants.
982,1028 and 28 U.S.C. § 2461(c):
Criminal Forfeiture]
[Annotated Set]
Trial Date: June 15, 2021
Trial Time: 8:30 am
Location:
Courtroom of the Hon.
Stephen V. Wilson
Pursuant to the Court’s Order re: Criminal Trial Preparation
(the “Trial Order”) and Rule 30 of the Federal Rules of Criminal
Procedure, plaintiff United States of America, by and through its
counsel of record, the United States Attorney for the Central
District of California and Assistant United States Attorneys Scott
Paetty, Catherine S. Ahn and Brian Faerstein, and United States
Department of Justice Fraud Section Trial Attorney Christopher
Fenton, hereby request that the Court include the attached
instructions in its charge to the jury.
On May 21, 2021, the Court advanced the deadline for the parties
to submit proposed instructions to May 27, 2021. In an effort to
provide, as directed by the Court’s Trial Order, jointly proposed
jury instructions, on May 23, 2021, the government provided its
proposed jury instructions to all defense counsel and asked for
their position regarding the proposed instructions by May 25, 2021;
on May 24, 2021, the government provided its proposed forfeiture
instructions to all defense counsel with a requested response date
of May 26, 2021.
On May 25, 2021, counsel for defendants Richard Ayvazyan,
Marietta Terabelian, Artur Ayvazyan, Tamara Dadyan, Manuk Grigoryan,
Edvard Paronyan and Vahe Dadyan, i.e., seven of the eight defendants,
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informed the government that they did not consent to the filing of
the government’s proposed instructions, did not agree to the
government’s proposed timeline, and would provide the government a
response “in due course.” At 10:34 p.m. on May 26, 2021, said
defense counsel provided draft proposed instructions and proposed
that the parties file separately. During a meet-and-confer, defense
counsel stated that the set of proposed instructions they had
provided was incomplete and expressed their belief that separate
filings –- one from the government and one jointly from all defense
counsel – would comply with the Court’s requirements. Participating
defense counsel later advised the government that it intended to
file a separate set of joint defense instructions.
The government, therefore, hereby files its proposed jury and
forfeiture instructions. The government respectfully requests leave
to file objections to defendants’ final proposed instructions. The
government also respectfully requests leave to file such further
requests for the inclusion of other proposed instructions as may
become appropriate during the course of trial.
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Unless otherwise noted, the government has used the most recent
version of the Ninth Circuit Model Criminal Jury Instructions found
on the Ninth Circuit’s website, which were last updated in December
2020.
Dated: May 27, 2021
Respectfully submitted,
TRACY L. WILKISON
Acting United States Attorney
BRANDON D. FOX
Assistant United States Attorney
Chief, Criminal Division
/s/ Catherine Ahn
CATHERINE AHN
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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INDEX OF THE GOVERNMENT’S PROPOSED JURY INSTRUCTIONS
Proposed
No.
Court
No.
Title
Source
Page
1
Stipulations of
Fact
Ninth Circuit Model
Criminal Jury
Instructions, No. 2.4
(2010 ed.)
1
2
Stipulated
Testimony
Ninth Circuit Model
Criminal Jury
Instructions, No. 2.3
(2010 ed.)
2
3
Defendant’s
Decision Not To
Testify/To
Testify
Ninth Circuit Model
Criminal Jury
Instructions, Nos. 3.3
and 3.4 (2010 ed.)
3
4
Activities Not
Charged
Ninth Circuit Model
Criminal Jury
Instructions, No. 3.10
(2010 ed.)
4
5
Other Crimes,
Wrongs or Acts of
Defendant
Ninth Circuit Model
Criminal Jury
Instructions, No. 4.3
(2010 ed.)
5
6
Impeachment,
Prior Conviction
of Defendant
Ninth Circuit Model
Criminal Jury
Instructions, No. 4.6
(2010 ed.)
6
7
Other Crimes,
Wrongs, of Acts
of Defendant/
Failure to Appear
Ninth Circuit Model
Criminal Jury
Instructions, Nos. 4.3
and 8.194 (2010 ed.)
7
8
Impeachment
Evidence
Ninth Circuit Model
Criminal Jury
Instructions, No. 4.8
(2010 ed.)
8
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Proposed
No.
Court
No.
Title
Source
Page
9
Separate
Consideration of
Multiple Counts -
- Multiple
Defendants
Ninth Circuit Model
Criminal Jury
Instructions, No. 3.13
(2010 ed.)
9
10
On or About –
Defined
Ninth Circuit Model
Criminal Jury
Instructions, No. 3.18
(2010 ed.)
10
11
Statements by
Defendant
Ninth Circuit Model
Criminal Jury
Instructions, No. 4.1
(2010 ed.)
11
12
Charts and
Summaries Not
Admitted Into
Evidence
Ninth Circuit Model
Criminal Jury
Instructions, No. 4.16
(2010 ed.)
12
13
Charts and
Summaries
Admitted Into
Evidence
Ninth Circuit Model
Criminal Jury
Instructions, No. 4.1
(2010 ed.)
13
14
Testimony of
Witnesses
Involving Special
Circumstances --
Immunity,
Benefits,
Accomplice, Plea
Ninth Circuit Model
Criminal Jury
Instructions, No. 4.19
(2010 ed.)
14
15
Opinion Evidence,
Expert Witness
Ninth Circuit Model
Criminal Jury
Instructions, No. 4.14
(2010 ed.)
15
16
Conspiracy
(Generally)
Ninth Circuit Model
Criminal Jury
Instructions, No. 8.20
(2010 ed.)
16
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Proposed
No.
Court
No.
Title
Source
Page
17
Conspiracy—
Knowledge of the
Association with
Other
Conspirators
Ninth Circuit Model
Criminal Jury
Instructions, No. 8.23
(2010 ed.)
18
18
Conspiracy –-
Liability for
Substantive
Offense Committed
by a Co-
Conspirator
(Pinkerton
Charge)
Ninth Circuit Model
Criminal Jury
Instructions, No. 8.25
(2010 ed.)
20
19
Aiding and
Abetting
Ninth Circuit Model
Criminal Jury
Instructions, No. 5.1
(2010 ed.)
22
20
Conspiracy --
Elements (wire
fraud and bank
fraud)
Ninth Circuit Model
Criminal Jury
Instructions, No. 8.20
(2010 ed.)
23
21
Wire Fraud
Ninth Circuit Model
Criminal Jury
Instructions, No.
8.124 (2010 ed.)
24
22
Bank Fraud—Scheme
to Defraud by
False Promises
Ninth Circuit Model
Criminal Jury
Instructions, No.
8.127 (2010 ed.)
27
23
Attempted Bank
Fraud—Scheme to
Defraud by False
Promises
Ninth Circuit Model
Criminal Jury
Instructions, No.
8.128 (2010 ed.)
29
24
Knowingly-Defined
Ninth Circuit Model
Criminal Jury
Instructions, No. 5.7
(2010 ed.)
31
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Proposed
No.
Court
No.
Title
Source
Page
25
Aiding and
Abetting
Ninth Circuit Model
Criminal Jury
Instructions, No. 5.1A
(2010 ed.)
32
26
Conspiracy --
Elements (money
laundering)
Ninth Circuit Model
Criminal Jury
Instructions, No. 8.20
(2010 ed.)
33
27
Laundering
Monetary
Instruments
Ninth Circuit Model
Criminal Jury
Instructions, No.
8.147 (2010 ed.)
35
28
Money Laundering
Ninth Circuit Model
Criminal Jury
Instructions, No.
8.150 (2010 ed.)
37
29
Fraud in
Connection with
Identification
Documents—
Aggravated
Identity Theft
Ninth Circuit Model
Criminal Jury
Instructions, No. 8.83
(2010 ed.)
38
30
Possession --
Defined
Ninth Circuit Model
Criminal Jury
Instructions, No. 3.15
(2010 ed.)
40
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INDEX OF PROPOSED FORFEITURE JURY INSTRUCTIONS
PRELIMINARY INSTRUCTION (TO BE READ AFTER VERDICT AND BEFORE
FORFEITURE PHASE OF TRIAL)
No.
Title
Page
31
Overview of
Forfeiture Phase of
Trial
41
INSTRUCTIONS AT END OF FORFEITURE PHASE OF TRIAL
No.
Title
Page
32
Forfeiture Proceeding
Follows Guilty
Verdict
44
33
Scope of Jury’s
Determination
45
34
Standard of Proof –
Preponderance of the
Evidence
47
35
Definition –
Preponderance of the
Evidence
48
36
Reliance on Evidence
Presented During
Guilt Phase
49
37
Forfeiture
Allegations Not
Evidence
50
38
Multiple Bases
51
39
Property Subject to
Forfeiture for Wire
Fraud Conviction
52
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No.
Title
Page
40
Property Subject to
Forfeiture for Bank
Fraud Conviction
53
41
Property Subject to
Forfeiture for
Aggravated Identity
Theft Conviction
54
42
Proceeds Defined
55
43
Forfeiture Based on
Fraud Convictions
Under 18 U.S.C.
§ 981(a)(1)(c)
57
44
Property Subject to
Forfeiture for Money
Laundering Conviction
62
45
Scope of 18 U.S.C. §
982(a)(1)
63
46
Forfeiture Based on
Money Laundering
Convictions Under 18
U.S.C. § 982(a)(1)
66
47
Special Verdict Form
68
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COURT’S INSTRUCTION NO. __
GOVERNMENT’S PROPOSED INSTRUCTION NO. 1
[If applicable]
The parties have agreed to certain facts that have been stated
to you. Those facts are now conclusively established.
Ninth Circuit Model Criminal Jury Instructions, No. 2.4 (2010 ed.)
[Stipulations of Fact].
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COURT’S INSTRUCTION NO. _____
GOVERNMENT’S PROPOSED INSTRUCTION NO. 2
[If applicable]
The parties have agreed what [name of witness]’s testimony
would be if called as a witness. You should consider that testimony
in the same way as if it had been given here in court.
Ninth Circuit Model Criminal Jury Instructions, No. 2.3 (2010 ed.)
[Stipulated Testimony]
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COURT’S INSTRUCTION NO. _____
GOVERNMENT’S PROPOSED INSTRUCTION NO. 3
[If defendant does not testify]
A defendant in a criminal case has a constitutional right not
to testify. In arriving at your verdict, the law prohibits you from
considering in any manner that the defendant did not testify.
[If defendant testifies]
The defendant has testified. You should treat this testimony
just as you would the testimony of any other witness.
Ninth Circuit Model Criminal Jury Instructions, Nos. 3.3 and 3.4
(2010 ed.) [Defendant’s Decision Not To Testify/To Testify].
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COURT’S INSTRUCTION NO. _____
GOVERNMENT’S PROPOSED INSTRUCTION NO. 4
You are here only to determine whether each defendant is guilty
or not guilty of the charges in the indictment. The defendants are
not on trial for any conduct or offense not charged in the
indictment.
Ninth Circuit Model Criminal Jury Instructions, No. 3.10 (2010 ed.)
[Activities Not Charged] (modified to reflect multiple defendants).
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COURT’S INSTRUCTION NO. _____
GOVERNMENT’S PROPOSED INSTRUCTION NO. 5
[If applicable]
You have heard evidence that a defendant committed other
crimes, wrongs, or acts not charged here. You may consider this
evidence only for its bearing, if any, on the question of the
defendant’s intent, motive, opportunity, preparation, plan,
knowledge, identity, absence of mistake, or absence of accident, and
for no other purpose. You may not consider this evidence as
evidence of guilt of the crime for which the defendant is now on
trial.
Ninth Circuit Model Criminal Jury Instructions, No. 4.3 (2010 ed.)
[Other Crimes, Wrongs or Acts of Defendant]
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COURT’S INSTRUCTION NO. _____
GOVERNMENT’S PROPOSED INSTRUCTION NO. 6
[If applicable]
You have heard evidence that the defendant has previously been
convicted of a crime. You may consider that evidence only as it may
affect the defendant’s believability as a witness. You may not
consider a prior conviction as evidence of guilt of the crime for
which the defendant is now on trial.
Ninth Circuit Model Criminal Jury Instructions, No. 4.6 (2010 ed.)
[Impeachment, Prior Conviction of Defendant].
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COURT’S INSTRUCTION NO. _____
GOVERNMENT’S PROPOSED INSTRUCTION NO. 7
[If applicable]
You have heard evidence that defendants Richard Ayvazyan and
Tamara Dadyan were released under the Bail Reform Act. You may
consider this evidence only for its bearing, if any, on the question
of whether defendant Richard Ayvazyan was released under that Act
during the commission of the offenses charged in Counts Twenty-Eight
through Thirty-Two, and whether defendant Tamara Dadyan was released
under that Act during the commission of the offense charged in Count
Thirty-Three. You may not consider a defendant’s bail status as
evidence of guilt of the crimes for which the defendant is now on
trial.
Ninth Circuit Model Criminal Jury Instructions, Nos. 4.3 (2010 ed.)
[Other Crimes, Wrongs, of Acts of Defendant] and 8.194 [Failure to
Appear] (modified).
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COURT’S INSTRUCTION NO. _____
GOVERNMENT’S PROPOSED INSTRUCTION NO. 8
[If applicable]
You have heard evidence that [name of witness], a witness,
[specify basis for impeachment]. You may consider this evidence in
deciding whether or not to believe this witness and how much weight
to give to the testimony of this witness.
Ninth Circuit Model Criminal Jury Instructions, No. 4.8 (2010 ed.)
[Impeachment Evidence]
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COURT’S INSTRUCTION NO. _____
GOVERNMENT’S PROPOSED INSTRUCTION NO. 9
A separate crime is charged against one or more of the
defendants in each count. The charges have been joined for trial.
You must decide the case of each defendant on each crime charged
against that defendant separately. Your verdict on any count as to
any defendant should not control you verdict on any other count or
as to any other defendant.
All the instructions apply to each defendant and to each count
unless a specific instruction states that it applies only to a
specific defendant and/or count.
Ninth Circuit Model Criminal Jury Instructions, No. 3.13 (2010 ed.)
[Separate Consideration of Multiple Counts -- Multiple Defendants].
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COURT’S INSTRUCTION NO. _____
GOVERNMENT’S PROPOSED INSTRUCTION NO. 10
The indictment charges that the offenses alleged were committed
“on or about” or “in or around” certain dates.
Although it is necessary for the government to prove beyond a
reasonable doubt that the specified offense was committed on a date
reasonably near the date alleged in the specified count, it is not
necessary for the government to prove that the specified offense was
committed precisely on the date charged.
Ninth Circuit Model Criminal Jury Instructions, No. 3.18 (2010 ed.)
[On or About –- Defined] (modified to reflect multiple offenses and
to include “in or around”).
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COURT’S INSTRUCTION NO. _____
GOVERNMENT’S PROPOSED INSTRUCTION NO. 11
You have heard testimony that a defendant made a statement. It
is for you to decide (1) whether the defendant made the statement,
and (2) if so, how much weight to give to it. In making those
decisions, you should consider all the evidence about the statement,
including the circumstances under which the defendant may have made
it.
Ninth Circuit Model Criminal Jury Instructions, No. 4.1 (2010 ed.)
[Statements by Defendant].
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COURT’S INSTRUCTION NO. _____
GOVERNMENT’S PROPOSED INSTRUCTION NO. 12
[If applicable]
During the trial, certain charts and summaries were shown to
you in order to help explain the evidence in the case. These charts
and summaries were not admitted into evidence and will not go into
the jury room with you. They are not themselves evidence or proof
of any facts. If they do not correctly reflect the facts or figures
shown by the evidence in the case, you should disregard these charts
and summaries and determine the facts from the underlying evidence.
Ninth Circuit Model Criminal Jury Instructions, No. 4.16 (2010 ed.)
[Charts and Summaries Not Admitted Into Evidence].
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COURT’S INSTRUCTION NO. _____
GOVERNMENT’S PROPOSED INSTRUCTION NO. 13
[If applicable]
Certain charts and summaries have been admitted into evidence.
Charts and summaries are only as good as the underlying supporting
material. You should, therefore, give them only such weight as you
think the underlying material deserves.
Ninth Circuit Model Criminal Jury Instructions, No. 4.10 (2010 ed.)
[Charts and Summaries Admitted Into Evidence].
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COURT’S INSTRUCTION NO. _____
GOVERNMENT’S PROPOSED INSTRUCTION NO. 14
[If applicable]
You have heard testimony from [NAME or NAMES], [a] witness[es]
who admitted being [an] accomplice[s] to the crimes charged. An
accomplice is one who voluntarily and intentionally joins with
another person in committing a crime.
For this reason, in evaluating the testimony of [NAME or
NAMES], you should consider the extent to which or whether
[his][her][their] testimony may have been influenced by this factor.
In addition, you should examine the testimony of [NAME or NAMES]
with greater caution than that of other witnesses.
Ninth Circuit Model Criminal Jury Instructions, No. 4.9 (2010 ed.)
[Testimony of Witnesses Involving Special Circumstances -- Immunity,
Benefits, Accomplice, Plea] (modified).
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COURT’S INSTRUCTION NO. _____
GOVERNMENT’S PROPOSED INSTRUCTION NO. 15
[If applicable]
You have heard testimony from [NAME(s)] who testified to
opinions and the reasons for [his/her/their] opinions. This opinion
testimony is allowed because of the education or experience of
[this/these] witness[es].
Such opinion testimony should be judged like any other
testimony. You may accept it or reject it, and give it as much
weight as you think it deserves, considering the witness’s education
and experience, the reasons given for the opinion, and all the other
evidence in the case.
Ninth Circuit Model Criminal Jury Instructions, No. 4.14 (2010 ed.)
[Opinion Evidence, Expert Witness].
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COURT’S INSTRUCTION NO. __
GOVERNMENT’S PROPOSED INSTRUCTION NO. 16
Counts One and Twenty-Six of the indictment charge all of the
defendants with conspiring to commit other specified crimes. Before
I state and explain the elements of the crimes that are the objects
of the conspiracies, I will first provide some general instructions
on the crime of conspiracy itself. These instructions apply with
equal force to Counts One and Twenty-Six of the indictment.
A conspiracy is a kind of criminal partnership—an agreement of
two or more persons to commit one or more crimes. The crime of
conspiracy is the agreement to do something unlawful; it does not
matter whether the crime agreed upon was committed.
For a conspiracy to have existed, it is not necessary that the
conspirators made a formal agreement or that they agreed on every
detail of the conspiracy. It is not enough, however, that they
simply met, discussed matters of common interest, acted in similar
ways, or perhaps helped one another. You must find that there was a
plan to commit at least one of the crimes alleged in the indictment
as an object of the conspiracy with all of you agreeing as to the
particular crime which the conspirators agreed to commit.
One becomes a member of a conspiracy by willfully participating
in the unlawful plan with the intent to advance or further some
object or purpose of the conspiracy, even though the person does not
have full knowledge of all the details of the conspiracy.
Furthermore, one who willfully joins an existing conspiracy is as
responsible for it as the originators. On the other hand, one who
has no knowledge of a conspiracy, but happens to act in a way which
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furthers some object or purpose of the conspiracy, does not thereby
become a conspirator. Similarly, a person does not become a
conspirator merely by associating with one or more persons who are
conspirators, nor merely by knowing that a conspiracy exists.
Ninth Circuit Model Criminal Jury Instructions, No 8.20 (2010 ed.)
[Conspiracy—Elements] (modified to (1) delete elements of § 1349
conspiracy and retain general summary of conspiracy law; and (2)
reflect the charges in the indictment and to add the first
introductory paragraph).
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COURT’S INSTRUCTION NO. _____
GOVERNMENT’S PROPOSED INSTRUCTION NO. 17
A conspiracy may continue for a long period of time and may
include the performance of many transactions. It is not necessary
that all members of the conspiracy join it at the same time, and one
may become a member of a conspiracy without full knowledge of all
the details or purposes of the unlawful scheme or the names,
identities, or locations of all of the other members.
Even though a defendant did not directly conspire with the
other conspirators in the overall scheme, the defendant has, in
effect, agreed to participate in the conspiracy if the government
proves each of the following beyond a reasonable doubt:
First, that the defendant directly conspired with one or more
conspirators to carry out at least one of the objects of the
conspiracy;
Second, that the defendant knew or had reason to know that
other conspirators were involved with those with whom the defendant
directly conspired; and
Third, that the defendant had reason to believe that whatever
benefits the defendant might get from the conspiracy were probably
dependent upon the success of the entire venture.
It is not a defense that a person’s participation in a
conspiracy was minor or for a short period of time.
Ninth Circuit Model Jury Instructions, No. 8.23 (2010 ed.)
[Conspiracy—Knowledge of the Association with Other Conspirators]
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(modified to add the phrase “or purposes,” which is language taken
from comment to Model Instruction 8.23 and from United States v.
Escalante, 637 F.2d 1197 (9th Cir. 1980), which the model
instruction cites to clarify conspiracy timeline requirements); see
also Escalante, 637 F.2d at 1200 (“In order to be a coconspirator,
one need not know all the purposes of and participants in the
conspiracy.”).
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COURT’S INSTRUCTION NO. _____
GOVERNMENT’S PROPOSED INSTRUCTION NO. 18
Each member of a conspiracy is responsible for the actions of
the other conspirators performed during the course of and in
furtherance of the conspiracy. If one member of a conspiracy
commits a crime in furtherance of a conspiracy, the other members
have also, under the law, committed the crime.
Therefore, you may find a defendant guilty of a crime charged
in the indictment if the government has proved each of the following
elements beyond a reasonable doubt:
First, someone committed the crime;
Second, that person was a member of a conspiracy;
Third, that person performed the crime in furtherance of the
conspiracy;
Fourth, that person and the defendant were members of the same
conspiracy at the time that this crime was committed; and
Fifth, the crime fell within the scope of that conspiracy and
could reasonably have been foreseen, by the defendant, to be a
necessary or natural consequence of the conspiracy.
Ninth Circuit Model Jury Instruction, No. 8.25 (2010 ed.)
[Conspiracy –- Liability for Substantive Offense Committed by a Co-
Conspirator (Pinkerton Charge)] (modified for generic reference).
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COURT’S INSTRUCTION NO. _____
GOVERNMENT’S PROPOSED INSTRUCTION NO. 19
A defendant may also be found guilty of a crime even if the
defendant personally did not commit the act or acts constituting the
crime but aided and abetted in its commission. To prove a defendant
guilty of committing a particular crime by means of aiding and
abetting, the government must prove each of the following beyond a
reasonable doubt:
First, a crime was committed by someone;
Second, the defendant aided, counseled, commanded, induced, or
procured that person with respect to at least one element of the
crime;
Third, the defendant acted with the intent to facilitate the
crime; and
Fourth, the defendant acted before the crime was completed.
It is not enough that the defendant merely associated with the
person committing the crime, or unknowingly or unintentionally did
things that were helpful to that person, or was present at the scene
of the crime. The evidence must show beyond a reasonable doubt that
the defendant acted with the knowledge and intention of helping that
person commit the crime.
A defendant acts with the intent to facilitate the crime when
the defendant actively participates in a criminal venture with
advance knowledge of the crime.
The government is not required to prove precisely which
defendant actually committed the crime and which defendant aided and
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abetted.
Ninth Circuit Model Criminal Jury Instructions, No. 5.1 (2010 ed.)
[Aiding and Abetting] (modified for generic reference).
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COURT’S INSTRUCTION NO. _____
GOVERNMENT’S PROPOSED INSTRUCTION NO. 20
All of the defendants are charged in Count One of the
indictment with conspiring to commit wire fraud, in violation of
Section 1343 of Title 18 of the United States Code, and bank fraud,
in violation of Section 1344 of Title 18 of the United States Code.
In order for a defendant to be found guilty of the charge in
Count One the government must prove each of the following elements
beyond a reasonable doubt:
First, beginning by at least in or about March 2020, and
continuing to at least August 2020, there was an agreement between
two or more persons to commit at least one crime as charged in the
indictment; and
Second, the defendant became a member of the conspiracy knowing
of at least one of its objects and intending to help accomplish it.
The crimes that are alleged to be the objects of the conspiracy
-– wire fraud and bank fraud -- are defined in the next
instructions.
Ninth Circuit Model Criminal Jury Instructions, No. 8.20 (2010 ed.)
[Conspiracy -- Elements] (modified to reflect the charges in the
indictment and note that the object offenses are defined in the next
instruction).
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COURT’S INSTRUCTION NO. _____
GOVERNMENT’S PROPOSED INSTRUCTION NO. 21
The defendants are charged in Counts Two through Twelve of the
indictment with wire fraud, in violation of Section 1343 of Title 18
of the United States Code, as follows:
COUNT
DATE
INTERSTATE WIRE TRANSMISSION
DEFENDANTS
CHARGED
TWO
May 1,
2020
Transfer of approximately $182,637
in PPP loan proceeds from Lender H,
sent by means of an interstate wire,
into S. Construction Bank 5 Account
R. AYVAZYAN;
TERABELIAN;
A. AYVAZYAN;
T. DADYAN;
GRIGORYAN;
HAYRAPETYAN;
PARONYAN
THREE
May 5,
2020
Transfer of approximately $124,000
in PPP loan proceeds from Lender C,
sent by means of an interstate wire,
into Allstate Towing Bank 4 Account
R. AYVAZYAN;
TERABELIAN;
A. AYVAZYAN;
T. DADYAN;
GRIGORYAN;
HAYRAPETYAN;
PARONYAN
FOUR
May 8,
2020
Transfer of approximately $130,000
in PPP loan proceeds from Lender B,
sent by means of an interstate wire,
into TQC Bank 3 Account
R. AYVAZYAN;
TERABELIAN;
A. AYVAZYAN;
T. DADYAN;
GRIGORYAN;
HAYRAPETYAN;
PARONYAN
FIVE
May 11,
2020
Transfer of approximately $137,500
in PPP loan proceeds from Lender E,
sent by means of an interstate wire,
into Secureline Realty Bank 6
Account
R. AYVAZYAN;
TERABELIAN;
A. AYVAZYAN;
T. DADYAN;
GRIGORYAN;
HAYRAPETYAN;
PARONYAN
SIX
May 11,
2020
Transfer of approximately $130,187
in PPP loan proceeds from Lender B,
sent by means of an interstate wire,
into Redline Auto Collision Bank 5
Account
R. AYVAZYAN;
TERABELIAN;
A. AYVAZYAN;
T. DADYAN;
GRIGORYAN;
HAYRAPETYAN;
PARONYAN
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COUNT
DATE
INTERSTATE WIRE TRANSMISSION
DEFENDANTS
CHARGED
SEVEN
May 20,
2020
Transfer of approximately $157,500
in PPP loan proceeds from Lender B,
sent by means of an interstate wire,
into Voyage Limo Bank 3 Account
ALL
DEFENDANTS
EIGHT
June 16,
2020
Transfer of approximately $149,900
in EIDL loan proceeds from the SBA,
sent by means of an interstate wire,
into G&A Diamonds Bank 4 Account
ALL
DEFENDANTS
NINE
June 17,
2020
Transfer of approximately $150,000
in EIDL loan proceeds from the
Redline Auto Collision Bank 5
Account, sent by means of an
interstate wire, to Terabelian Bank
2 Account
ALL
DEFENDANTS
TEN
June 22,
2020
Transfer of approximately $149,900
in EIDL loan proceeds from the SBA,
sent by means of an interstate wire,
into Timeline Transport Bank 1
Account
ALL
DEFENDANTS
ELEVEN July 31,
2020
Transfer of approximately $384,150
in PPP loan proceeds from Lender F,
sent by means of an interstate wire,
into Mod Interiors Bank 7 Account
ALL
DEFENDANTS
TWELVE August
13, 2020
Submission of application for PPP
loan to Lender F in the name of
A.D., sent by means of an interstate
wire
ALL
DEFENDANTS
In order for a defendant to be found guilty of wire fraud, in
violation of Section 1343 of Title 18 of the United States Code, the
government must prove each of the following elements beyond a
reasonable doubt:
First, the defendant knowingly participated in or devised a
scheme or plan to defraud, or a scheme or plan for obtaining money
or property by means of false or fraudulent pretenses,
representations, or promises. Deceitful statements of half-truths
may constitute false or fraudulent representations;
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Second, the statements made or facts omitted as part of the
scheme were material; that is, they had a natural tendency to
influence, or were capable of influencing, a person to part with
money or property;
Third, the defendant acted with the intent to defraud, that is,
the intent to deceive and cheat; and
Fourth, the defendant used, or caused to be used, an interstate
wire communication to carry out or attempt to carry out an essential
part of the scheme.
In determining whether a scheme to defraud exists, you may
consider not only the defendant’s words and statements, but also the
circumstances in which they are used as a whole.
A wiring is caused when one knows that a wire will be used in
the ordinary course of business or when one can reasonably foresee
such use.
It need not have been reasonably foreseeable to the defendant
that the wire communication would be interstate in nature. Rather,
it must have been reasonably foreseeable to the defendant that some
wire communication would occur in furtherance of the scheme, and an
interstate wire communication must have actually occurred in
furtherance of the scheme.
Ninth Circuit Model Criminal Jury Instructions, No. 8.124 (2010 ed.;
approved 4/2019) [Wire Fraud] (modified to add chart of specific
counts).
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COURT’S INSTRUCTION NO. _____
GOVERNMENT’S PROPOSED INSTRUCTION NO. 22
The defendants are charged in Counts Thirteen through Twenty of
the indictment with bank fraud, in violation of Section 1344(2) of
Title 18 of the United States Code, as follows:
COUNT
DATE
ACT
DEFENDANTS
CHARGED
THIRTEEN
April
18, 2020
Submission of application for
PPP loan to Lender H in the
name of H. Construction
R. AYVAZYAN;
TERABELIAN;
A. AYVAZYAN;
T. DADYAN;
GRIGORYAN;
HAYRAPETYAN;
PARONYAN
FOURTEEN
April
30, 2020
Submission of application for
PPP loan to Lender B in the
name of TQC
R. AYVAZYAN;
TERABELIAN;
A. AYVAZYAN;
T. DADYAN;
GRIGORYAN;
HAYRAPETYAN;
PARONYAN
FIFTEEN
May 2,
2020
Submission of application for
PPP loan to Lender C in the
name of Allstate Towing
R. AYVAZYAN;
TERABELIAN;
A. AYVAZYAN;
T. DADYAN;
GRIGORYAN;
HAYRAPETYAN;
PARONYAN
SIXTEEN
May 7,
2020
Submission of application for
PPP loan to Lender B in the
name of Redline Auto Collision
R. AYVAZYAN;
TERABELIAN;
A. AYVAZYAN;
T. DADYAN;
GRIGORYAN;
HAYRAPETYAN;
PARONYAN
SEVENTEEN May 9,
2020
Submission of application for
PPP loan to Lender E in the
name of Secureline Realty
R. AYVAZYAN;
TERABELIAN;
A. AYVAZYAN;
T. DADYAN;
GRIGORYAN;
HAYRAPETYAN;
PARONYAN
EIGHTEEN
May 18,
2020
Submission of application for
PPP loan to Lender B in the
name of Voyage Limo
ALL
DEFENDANTS
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In order for a defendant to be found guilty of bank fraud, in
violation of Section 1344(2) of Title 18 of the United States Code,
the government must prove each of the following elements beyond a
reasonable doubt:
First, for each Count, the defendant knowingly carried out a
scheme or plan to obtain money or property from the financial
institution specified in the Count by making false statements or
promises;
Second, the defendant knew that the statements or promises were
false;
Third, the statements or promises were material; that is, they
had a natural tendency to influence, or were capable of influencing,
a financial institution to part with money or property;
Fourth, the defendant acted with the intent to defraud; and
Fifth, the specified financial institution was federally
insured.
Ninth Circuit Model Criminal Jury Instructions, No. 8.127 (2010 ed.)
[Bank Fraud—Scheme to Defraud by False Promises] (modified to add
chart of specific counts)
NINETEEN
June 25,
2020
Submission of application for
PPP loan to Lender B in the
name of Redline Auto Mechanics
ALL
DEFENDANTS
TWENTY
July 13,
2020
Submission of application for
PPP loan to Lender A in the
name of Runyan Tax Service
ALL
DEFENDANTS
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COURT’S INSTRUCTION NO. _____
GOVERNMENT’S PROPOSED INSTRUCTION NO. 23
Defendant Tamara Dadyan is charged in Count Thirty-Three of the
indictment with attempted bank fraud in violation of Section 1344(2)
of Title 18 of the United States Code. In order for the defendant
to be found guilty of that charge, the government must prove each of
the following elements beyond a reasonable doubt:
First, the defendant knowingly devised a plan or scheme to
obtain money or property from Capital One, N.A. by false promises or
statements;
Second, the promises or statements were material; that is, they
had a natural tendency to influence, or were capable of influencing,
a financial institution to part with money or property;
Third, the defendant acted with the intent to defraud;
Fourth, the defendant did something that was a substantial step
toward carrying out the plan or scheme and that strongly
corroborated the defendant’s intent to commit that crime; and
Fifth, Capital One, N.A. was federally insured.
Mere preparation is not a substantial step toward committing
the crime. To constitute a substantial step, a defendant’s act or
actions must unequivocally demonstrate that the crime will take
place unless interrupted by independent circumstances.
Jurors do not need to agree unanimously as to which particular
act or actions constituted a substantial step toward the commission
of a crime.
Defendant Tamara Dadyan is charged with committing the offense
charged in Count Thirty-Three while released pursuant to the Bail
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Reform Act. If you find beyond a reasonable doubt that defendant
Tamara Dadyan committed that offenses, you must also determine
whether the government has proven beyond a reasonable doubt that she
committed the offense while on release.
Ninth Circuit Model Criminal Jury Instructions, No. 8.128 (2010 ed.)
[Attempted Bank Fraud—Scheme to Defraud by False Promises] (modified
to add specific bank); 18 U.S.C. § 3147.
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COURT’S INSTRUCTION NO. _____
GOVERNMENT’S PROPOSED INSTRUCTION NO. 24
An act is done knowingly if the defendant is aware of the act
and does not act through ignorance, mistake, or accident. You may
consider evidence of the defendant’s words, acts, or omissions,
along with all the other evidence, in deciding whether the defendant
acted knowingly.
Ninth Circuit Model Criminal Jury Instructions, No. 5.7 (2010 ed.)
[Knowingly-Defined]
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COURT’S INSTRUCTION NO. _____
GOVERNMENT’S PROPOSED INSTRUCTION NO. 25
A defendant may be found guilty of wire fraud or bank fraud as
charged in each of Counts Two through Twelve and Thirteen through
Twenty and Thirty-Three of the indictment even if the defendant did
not personally commit the acts constituting the crime if the
defendant willfully caused an act to be done that if directly
performed by him or her would be an offense against the United
States. A defendant who puts in motion or causes the commission of
an indispensable element of the offense may be found guilty as if he
or she had committed this element him- or herself.
Ninth Circuit Model Criminal Jury Instructions, No. 5.1A (2010 ed.;
approved 9/2019) [Aiding and Abetting (18 U.S.C. § 2(b) (modified to
reflect charges in the indictment)]
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COURT’S INSTRUCTION NO. _____
GOVERNMENT’S PROPOSED INSTRUCTION NO. 26
All of the defendants are charged in Count Twenty-Six of the
indictment with conspiring to engage in money laundering, in
violation of Section 1956(h) of Title 18 of the United States Code.
In order for a defendant to be found guilty of that charge, the
government must prove each of the following elements beyond a
reasonable doubt:
First, beginning no later than in or around March 2020 and
continuing until at least in or around October 2020, there was an
agreement between two or more persons to commit at least one of the
following crimes: (1) money laundering, in violation of Section
1956(a)(1)(B)(i) of Title 18 of the United States Code; and
(2) engaging in monetary transactions in property derived from
specified unlawful activity, in violation of Section 1957 of Title
18 of the United States Code -- with all of you agreeing as to the
particular crime which the conspirators agreed to commit; and
Second, the defendant became a member of the conspiracy knowing
of at least one of its objects and intending to help accomplish it.
The crimes that are alleged to be the objects of the conspiracy
charged in Count Twenty-Six -- money laundering and engaging in
monetary transactions in property derived from specified unlawful
activity -- are further defined in the next instructions.
Ninth Circuit Model Criminal Jury Instructions, No. 8.20 (2010 ed.)
[Conspiracy -- Elements] (modified to reflect the charges in the
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indictment and note that the object offenses are defined in the next
instructions).
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COURT’S INSTRUCTION NO. _____
GOVERNMENT’S PROPOSED INSTRUCTION NO. 27
Defendant Vahe Dadyan is charged in Count Twenty-Seven, and
defendant Richard Ayvazyan is charged in Counts Twenty-Eight through
Thirty-Two, with laundering money, in violation of Section
1956(a)(1)(B)(i) of Title 18 of the United States Code.
In order for a defendant to be found guilty of laundering money
as charged in the aforementioned counts, the government must prove
each of the following elements beyond a reasonable doubt:
First, the defendant conducted a financial transaction
involving property that represented the proceeds of conspiracy to
commit bank fraud and wire fraud, in violation of Section 1349 of
Title 18 of the United States Code; wire fraud in violation of
Section 1343 of Title 18 of the United States Code; or bank fraud,
in violation of Section 1344(2) of Title 18 of the United States
Code;
Second, the defendant knew that the property represented the
proceeds of some form of unlawful activity; and
Third, the defendant knew that the transaction was designed in
whole or in part to conceal or disguise the nature, location,
source, ownership, and/or control of such proceeds.
A financial transaction is a transaction involving the use of a
financial institution that is engaged in, or the activities of which
affect interstate or foreign commerce in any way.
The phrase “knew that the property represented the proceeds of
some form of unlawful activity” means that the defendant knew that
the property involved in the transaction represented proceeds from
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some form, though not necessarily which form, of activity that
constitutes a felony. I instruct you that conspiracy to commit wire
fraud and bank fraud, wire fraud, and bank fraud are each a felony.
Defendant Richard Ayvazyan is charged with committing the
offenses charged in Counts Twenty-Eight through Thirty-Two while
released pursuant to the Bail Reform Act. If you find beyond a
reasonable doubt that defendant Richard Ayvazyan committed any of
these offenses, you must also determine whether the government has
proven beyond a reasonable doubt that he committed the offense while
on release.
Ninth Circuit Model Jury Instructions, No. 8.147 (2010 ed.)
[Laundering Monetary Instruments (18 U.S.C. § 1956(a)(1)(B))]
(modified to reflect charges in the indictment, including § 3147
allegation).
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COURT’S INSTRUCTION NO. _____
GOVERNMENT’S PROPOSED INSTRUCTION NO. 28
Laundering money in violation of Section 1957 of Title 18 of
the United States Code is the second object of the conspiracy
charged in count Twenty-Six.
In order for a person to be found guilty of committing this
object of the conspiracy, the government would have to prove each of
the following elements beyond a reasonable doubt:
First, the person knowingly engaged in a monetary transaction;
Second, the person knew that the transaction involved
criminally derived property;
Third, the property had a value greater than $10,000;
Fourth, the property was, in fact, derived from wire fraud, in
violation of Section 1343 of Title 18 of the United States Code, or
bank fraud, in violation of Section 1344 of Title 18 of the United
States Code; and
Fifth, the transaction occurred in the United States.
The term “monetary transaction” means the deposit, withdrawal,
transfer, or exchange, in or affecting interstate commerce, of funds
or a monetary instrument by, through, or to a financial institution.
Ninth Circuit Model Jury Instructions, No. 8.150 (2010 ed.) [Money
Laundering (18 U.S.C. § 1957)] (modified to reflect the indictment).
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COURT’S INSTRUCTION NO. _____
GOVERNMENT’S PROPOSED INSTRUCTION NO. 29
Defendant Richard Ayvazyan is charged in Counts Twenty-One and
Twenty-Two of the indictment with aggravated identity theft in
violation of Section 1028A of the Title 18 of the United States
Code. Defendant Marietta Terabelian is charged with this offense in
Count Twenty-Two, defendant Manuk Grigoryan is charged with this
offense in Count Twenty-Three, defendants Artur Ayvazyan and Tamara
Dadyan are charged with this offense in Count Twenty-Four, and
defendant Hayrapetyan is charged with this offense in Count Twenty-
Five.
In order for a defendant to be found guilty of aggravated
identity theft as charged in these counts, the government must prove
each of the following elements beyond a reasonable doubt:
First, the defendant knowingly transferred, possessed, or used
without legal authority a means of identification of another person,
namely, at least one of the following: For Count Twenty-One, the
name of M.Z; for Count Twenty-Two, the name and California driver’s
license number of N.T.; for Count Twenty-Three, the name of A.F.;
for Count Twenty-Four, the name and date of birth of A.D.; and for
Count Twenty-Five, the name and social security number of M.H.
Second, the defendant knew that the means of identification
belonged to a real person; and
Third, the defendant did so during and in relation to a
specific bank fraud or wire fraud offense charged in the indictment,
namely, for Count Twenty-One, bank fraud, as charged in Count
Fourteen; for Count Twenty-Two, wire fraud, as charged in Count
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Eleven; for Count Twenty-Three, bank fraud, as charged in Count
Nineteen; for Count Twenty-Four, wire fraud, as charged in Count
Twelve; and for Count Twenty-Five, bank fraud, as charged in Count
Thirteen.
To act “without legal authority” means to act in a way that is
contrary to law. Thus, the government need not establish that the
means of identification of another person was stolen or used without
that person’s consent or permission.
Ninth Circuit Model Criminal Jury Instructions, No. 8.83 (2010 ed.;
approved 3/2021) [Fraud in Connection with Identification Documents—
Aggravated Identity Theft (18 U.S.C. § 1028A)] (modified to (1) note
that the predicate crime is a felony that is defined in a previous
instruction; (2) include the specific means of identification and
victims, in accordance with United States v. Ward, 747 F.3d 1184,
1192-93 (9th Cir. 2014) (reversing for constructive amendment where
court “declined to name the specific victims whose identities the
indictment accused [the defendant] of stealing”); and (3) explain
that “without lawful authority” simply means contrary to law and
does not require the government to prove that the identity was
stolen or used without consent, as set forth in United States v.
Osuna-Alvarez, 788 F.3d 1183, 1186 (9th Cir. 2015) (holding that a
defendant makes “use” of an identification without lawful authority
even if the owner of the identity is complicit in the defendant’s
use).
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COURT’S INSTRUCTION NO. _____
GOVERNMENT’S PROPOSED INSTRUCTION NO. 30
A person has possession of something if the person knows of its
presence and has physical control of it, or knows of its presence
and has the power and intention to control it.
More than one person can be in possession of something if each
knows of its presence and has the power and intention to control it.
Ninth Circuit Model Criminal Jury Instructions, No. 3.15 (2010 ed.)
[Possession -- Defined].
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COURT’S INSTRUCTION NO. _____
GOVERNMENT’S PROPOSED INSTRUCTION NO. 31
[Criminal Forfeiture Phase of Trial]
[To be read to the jury immediately after its return of a verdict of
guilty on either or both Counts of the Indictment, and prior to the
commencement of the forfeiture phase of the trial.]
Ladies and gentlemen of the jury, your verdict in this case
doesn’t complete your jury service as it would in most cases,
because there is another matter you must now consider. You must
decide whether the defendants should forfeit certain property to the
United States as a part of the penalty for the crimes charged in
Counts One through Thirty-Two of the First Superseding Indictment.
In a portion of the First Superseding Indictment not previously
discussed or disclosed to you, it is alleged that there is property
involved in or derived from proceeds obtained, directly or
indirectly, as a result of the offense for which Defendants were
found guilty. In view of your verdict finding the Defendants guilty
of the offenses alleged in Counts One through Thirty-Two, you now
must also decide what property, if any, should be forfeited to the
United States.
Federal law provides that where, as here, a defendant is
convicted of wire fraud, bank fraud, or aggravated identity theft,
such a defendant is required to forfeit to the United States all
right, title and interest in any and all property, real or personal,
constituting, or derived from, any proceeds obtained, directly or
indirectly, as a result of the offense. In this case, since you
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have found the defendants guilty of these offenses, you must
consider whether the property specified in the First Superseding
Indictment is of this character.
Federal law also provides that where, as here, a defendant is
convicted of money laundering, such a defendant is required to
forfeit to the United States all right, title and interest in any
and all property, real or personal, involved in the offense, and any
property traceable to such property. In this case, since you have
found the defendants guilty of money laundering offenses, you must
consider whether the property specified in the First Superseding
Indictment is of this character.
To “forfeit” a thing is to be divested or deprived of the
ownership of it as a part of the punishment allowed by the law for
certain criminal offenses. To decide whether property should be
forfeited, you should consider all the evidence you have already
heard plus any additional evidence that will be presented to you
after these instructions.
A copy of the forfeiture allegations of the First Superseding
Indictment will be given to you to consider during your supplemental
deliberations. The First Superseding Indictment and the accompanying
amended bill of particulars describe in particular the property
allegedly subject to forfeiture to the United States.
Eleventh Circuit Pattern Jury Instructions, T6 (2017 ed.)
(Forfeiture Proceedings) (to be given before supplemental
evidentiary proceedings or supplemental argument of counsel)
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(adapted); Federal Rule of Criminal Procedure 32.2(a) and (b); 18
U.S.C. § 981(a)(1)(C); Libretti v. United States, 516 U.S. 29, 39
(1995) (“Our precedents have likewise characterized criminal
forfeiture as an aspect of punishment imposed following conviction
of a substantive criminal offense.”); United States v. Lazarenko,
476 F.3d 642, 647 (9th Cir. 2007) (criminal forfeiture operates in
personam against a defendant; it is part of his punishment following
conviction); United States v. Lazarenko, 504 F. Supp. 2d 791, 796-97
(N.D. Cal. 2007) (Rule 32.2(a) requires only that the indictment
give notice of the forfeiture in generic terms; that the Government
did not itemize all of the property subject to forfeiture until much
later was of no moment; older cases holding that property had to be
listed in the indictment are no longer good law).
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COURT’S INSTRUCTION NO. _____
GOVERNMENT’S PROPOSED INSTRUCTION NO. 32
[Forfeiture Proceeding Follows Guilty Verdict]
[This Instruction and all following instructions to be read before
the jury begins its deliberations on forfeiture]
While deliberating concerning the issue of forfeiture you must
not reexamine your previous determination regarding the Defendant’s
guilt. However, all the instructions previously given to you
concerning duties of the jury, your consideration of the evidence,
what is and is not evidence, the credibility of the witnesses,
expert testimony, your duty to deliberate together, your duty to
base your verdict solely on the evidence without prejudice, bias, or
sympathy, and the necessity of a unanimous verdict, will continue to
apply during these supplemental deliberations.
Eleventh Circuit Model Jury Instructions, T6 (2017 ed.) (adapted);
Federal Rule of Criminal Procedure 32.2; 18 U.S.C. § 981; United
States v. Warshak, 631 F.3d 266, 331 (6th Cir. 2010) (defendant is
not permitted to relitigate the legality of his conduct or otherwise
attempt to undermine the jury’s finding of guilt during the
forfeiture phase; affirming district court’s refusal to let
defendant introduce evidence tending to show his conduct was not
illegal, and holding that in the forfeiture phase, the legality of
the conduct is “no longer a live issue;” the only question is the
nexus between the conduct and the offense).
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COURT’S INSTRUCTION NO. _____
GOVERNMENT’S PROPOSED INSTRUCTION NO. 33
[Forfeiture – Scope of Jury’s Determination]
Your duty at this phase of the proceeding is solely to
determine whether the government has proven the required connection
between the property sought for forfeiture and the offenses for
which you have found the defendant guilty.
You should not consider what might happen to the property in
determining whether the property is subject to forfeiture; the
disposition of any property that is declared forfeited is
exclusively a matter for the Court to decide. Similarly, if any
property has been transferred to a third party, the Court will later
determine the right of that third party to the property.
Some of the property which the government claims is subject to
forfeiture may be in the name of the defendant and persons or
business entities other than the defendant. However, any interest
that a person other than the defendant may claim to such property
will be taken into account by this Court in a separate proceeding.
Interests of persons or entities other than the defendant are not
for your consideration.
Your sole task is to decide whether the defendant’s interest in
the property, whatever that interest may be, is subject to
forfeiture under the applicable law.
Fed. R. Crim. P. 32.2(b)(2)(A) (only question during forfeiture
phase is whether evidence establishes requisite nexus between
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underlying crimes of conviction and property sought to be
forfeited); United States v. Nava, 404 F.3d 1119, 1132 (9th Cir.
2005) (district court properly instructed jury that questions of
ownership “were not before them”); United States v. Yeje-Cabrera,
430 F.3d 1, 15 (1st Cir. 2005) (explaining that the primary purpose
of Rule 32.2(b)(2) was to preserve the resources of the court and
third parties by deferring the ownership issue to the ancillary
proceeding, thus avoiding duplicative litigation); United States v.
Andrews, 530 F.3d 1232, 1236 (10th Cir. 2008) (once forfeitability
is determined, the court does not – “and indeed may not” --
determine ownership, as that issue is deferred to the ancillary
proceeding).
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COURT’S INSTRUCTION NO. _____
GOVERNMENT’S PROPOSED INSTRUCTION NO. 34
[Standard of Proof]
With two important exceptions, all of my previous instructions
will continue to apply to these deliberations. The first exception
is that during this phase, the government’s burden is not proof
beyond a reasonable doubt, but instead is only proof by a
preponderance of the evidence, which I will define for you in a
moment. The second exception is that during this phase, you will
consider a component of the potential punishment to be imposed on
the Defendant, but your sole task is to determine whether the
government has established, by a preponderance of the evidence, the
required connection between the crimes of which the Defendant has
been convicted and the property sought for forfeiture.
Libretti v. United States, 516 U.S. 29, 39 (1995) (“Our precedents
have likewise characterized criminal forfeiture as an aspect of
punishment imposed following conviction of a substantive criminal
offense.”); United States v. Lazarenko, 476 F.3d 642, 647 (9th Cir.
2007) (criminal forfeiture operates in personam against a defendant;
it is part of his punishment following conviction); Rule 32.2(b)(5);
United States v. Garcia-Guizar, 160 F.3d 511, 518 (9th Cir. 1998)
(preponderance standard is constitutional because criminal
forfeiture is not a separate offense, but only an additional penalty
for an offense that was established beyond a reasonable doubt).
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COURT’S INSTRUCTION NO. _____
GOVERNMENT’S PROPOSED INSTRUCTION NO. 35
[Preponderance of the Evidence]
When a party has the burden of proof on any claim by a
preponderance of the evidence, it means you must be persuaded by the
evidence that the claim is more probably true than not true. You
should base your decision on all of the evidence, regardless of
which party presented it.
Ninth Circuit Model Jury Instructions, Civil, No. 1.3 (2010 ed.)
[Preponderance of the Evidence].
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COURT’S INSTRUCTION NO. _____
GOVERNMENT’S PROPOSED INSTRUCTION NO. 36
[Reliance on Evidence Presented During Guilt Phase]
In making the forfeiture determination, you should consider all
of the evidence presented during this post-verdict proceeding and
the trial, regardless of who offered it. You should evaluate the
evidence and its credibility according to the instructions I gave
you earlier.
Federal Rule of Criminal Procedure 32.2; 18 U.S.C. § 981; Rule 32.2
((b)(1)(B) (Whether made by the Court or the jury, the nexus
determination may be based upon “evidence already in the record,
including any written plea agreement, and on any additional evidence
or information submitted by the parties and accepted by the court as
relevant and reliable.”); United States v. Capoccia, 503 F.3d 103,
109 (2d Cir. 2007) (finder of fact may rely on evidence from the
guilt phase; it is not necessary for the government to reintroduce
that evidence in the forfeiture phase).
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COURT’S INSTRUCTION NO. _____
GOVERNMENT’S PROPOSED INSTRUCTION NO. 37
[Forfeiture Allegations Not Evidence]
The forfeiture allegations set forth in the First Superseding
Indictment are not evidence and do not create any inference that the
property is subject to forfeiture. The defendants have denied that
the property is subject to forfeiture.
Fed. Crim. Jury Instr. 7th Cir. (2012 ed.) [Forfeiture Allegations
Instruction]; cf. Ninth Circuit Model Jury Instructions, Civil, No.
3.2 (2010 ed.) [Charge Against Defendant Not Evidence].
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COURT’S INSTRUCTION NO. _____
GOVERNMENT’S PROPOSED INSTRUCTION NO. 38
[Forfeiture – Multiple Bases]
I will soon describe the specific property the government seeks
to forfeit and what the government must prove to forfeit the
property. You will be asked to consider separately whether the
property is subject to forfeiture on multiple grounds. You need not
be concerned with “double-counting” of monetary amounts or
“overlapping” of properties.
Even if you find that a particular property is subject to
forfeiture for more than one reason, that does not mean the
government will receive said property twice. However, it is
important that you indicate on the special verdict form all bases on
which you find any given property is subject to forfeiture.
Any issues of “double-counting” or “overlapping” will be
considered by the Court in imposing sentence.
Fed. R. Crim. P. 32.2(b); 18 U.S.C. § 982.
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COURT’S INSTRUCTION NO. _____
GOVERNMENT’S PROPOSED INSTRUCTION NO. 39
[Property Subject to Forfeiture for Wire Fraud Conviction or
Conspiracy to Commit such Offense]
Under federal law, any defendant convicted of one or more
violations of Title 18, United States Code, Section 1343, shall
forfeit to the government all of the defendant’s right, title and
interest in any and all property, real or personal, constituting, or
derived from, any proceeds obtained, directly or indirectly, as a
result of the offense.
Federal Rule of Criminal Procedure 32.2; 18 U.S.C. § 981(a)(1)(C).
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COURT’S INSTRUCTION NO. _____
GOVERNMENT’S PROPOSED INSTRUCTION NO. 40
[Property Subject to Forfeiture for Bank Fraud Conviction]
Under federal law, any defendant convicted of one or more
violations of Title 18, United States Code, Section 1344, shall
forfeit to the government all of the defendant’s right, title and
interest in any and all property, real or personal, constituting, or
derived from, any proceeds obtained, directly or indirectly, as a
result of the offense.
Federal Rule of Criminal Procedure 32.2; 18 U.S.C. § 981(a)(1)(C).
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COURT’S INSTRUCTION NO. _____
GOVERNMENT’S PROPOSED INSTRUCTION NO. 41
[Property Subject to Forfeiture for Aggravated Identity Theft
Conviction]
Under federal law, any defendant convicted of one or more
violations of Title 18, United States Code, Section 1028A, shall
forfeit to the government all of the defendant’s right, title and
interest in any and all property, real or personal, constituting, or
derived from, any proceeds obtained, directly or indirectly, as a
result of the offense.
Federal Rule of Criminal Procedure 32.2; 18 U.S.C. § 981(a)(1)(C);
United States v. Pollard, 850 F.3d 1038, 1042-1043 (9th Cir. 2017)
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COURT’S INSTRUCTION NO. _____
GOVERNMENT’S PROPOSED INSTRUCTION NO. 42
[Proceeds Defined]
Property subject to forfeiture as proceeds of a scheme to
defraud includes any money obtained as a result of the scheme, and
any property obtained with that money.
Proceeds remain proceeds regardless of how many times the
property may change form. For example, the proceeds of a crime may
start out as money in one bank account, be moved to a second bank
account, be converted to a check, and then used to buy a car. In
that case, each of the items would be considered the proceeds of the
offense, or property derived from such proceeds.
In a case, like this one, involving a scheme to defraud,
property is subject to forfeiture if it is derived from or traceable
to the scheme as a whole; it is not necessary for the Government to
trace the property to a particular execution of the scheme, such as
a particular wire transfer.
United States v. Swanson, 394 F.3d 520, 529 n.4 (7th Cir. 2005) (a
change in the form of the proceeds does not prevent forfeiture;
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property traceable to the forfeitable property is forfeitable as
well); United States v. Lo, 839 F.3d 777, 793 (9th Cir. 2016)
(“[T]he proceeds of the crime of conviction consist of the funds
involved in that fraudulent scheme, including additional executions
of the scheme that were not specifically charged or on which the
defendant was acquitted.”); United States v. Venturella, 585 F.3d
1013, 1015, 1016-17 (7th Cir. 2009) (forfeiture in a mail fraud case
“is not limited to the amount of the particular mailing but extends
to the entire scheme”); 18 U.S.C. § 981(a)(2)(A); United States v.
Boesen, 473 F.Supp.2d 932, 952-953 (S.D. Iowa 2007) (forfeiting the
gross proceeds of a large health care fraud scheme, not just the
proceeds of the 82 executions of the scheme); see also United States
v. Capoccia, 503 F.3d 103, 117-18 (2d Cir. 2007) (distinguishing
scheme offenses such as in Boesen from discrete offenses, for
purposes of determining forfeitable proceeds).
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COURT’S INSTRUCTION NO. _____
GOVERNMENT’S PROPOSED INSTRUCTION NO. 43
[Forfeiture based on Fraud Offenses Under 18 U.S.C. § 981(a)(1)(C)]
The government seeks to forfeit the following property pursuant
to the findings of guilt on each of Counts One through Twenty-Five:
1.
All of Defendant’s right, title and interest in certain
real Property located in Tarzana, California identified by
Assessors Parcel Number 2176-029-031;
2.
All of Defendant’s right, title and interest in certain
real Property located in Glendale, California identified
by Assessors Parcel Number 5663-036-033;
3.
All of Defendant’s right, title and interest in certain
real Property located in Palm Desert, California
identified by Assessors Parcel Number 694-331-008;
4.
$451,185.00 in U.S. Currency seized on November 5, 2020;
5.
$12,520.00 in U.S. Currency seized on November 5, 2020, in
Encino, California, at the residence of defendants Tamara
Dadyan (“Dadyan”) and Artur Ayvazyan (“A. Ayvazyan”);
6.
$74,557.79 in Bank funds seized from Bank of America
account number ending in 7695 held in the name of Allstate
Towing & Transport LLC;
7.
One Audermars Piguet, Royal Oak 18 carat rose gold wrist
watch, model 26331, serial number J52335;
8.
One Rolex Datajust stainless steel wrist watch, model
126334, serial number 4U95Z313;
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9.
One Cartier Chronoscaph 21 stainless steel wrist watch,
model 2424, serial number 880317LX;
10.
One Audemars Piguet, Royal Oak Offshore black ceramic
wrist watch, serial number K23313;
11.
One Audemars Piguet Royal Oak Offshore black ceramic wrist
watch, serial number LU44845K;
12.
Audemars Piguet Royal Oak stainless steel wrist watch,
serial number LW3397N;
13.
One 1979 Gold Bullion Coin;
14.
Two 1980 Gold Bullion Coins;
15.
Ten 1982 Gold Bullion Coins;
16.
Seventeen 1983 Gold Bullion Coins;
17.
Five 1984 Gold Bullion Coins;
18.
Five 1985 Gold Bullion Coins;
19.
Ten 1986 Gold Bullion Coins;
20.
Ten 1987 Gold Bullion Coins;
21.
One 14 carat rose tint gold pendant, cross-shaped; and
22.
One Rolex Yacht-Master II watch, model 116681, serial
number C32K8231;
23.
One Rolex Day-Date 40 watch, model W6685656;
24.
One Rolex Day-Date watch, serial number W44P7238;
25.
One Pair of 14 carat white gold earrings with diamond
studs;
26.
One pair of 18 carat white gold earrings with diamonds;
27.
One 14 carat white gold bracelet with 2 rows of diamonds;
28.
One 14 carat yellow gold 24” neck chain;
29.
One 14 carat yellow gold cross pendant;
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30.
One 14 carat yellow gold 16” neck chain;
31.
One 18 carat white gold bracelet double chain link “Evil
Eye” with diamonds; and
32.
One fabric cord bracelet with 18 carat white gold clasp
and diamond “Evil Eye”;
33.
$3,422.00.00 in U.S. Currency seized on November 20, 2020;
34.
Ledger re Nanos Cryptocurrency Hardware Wallet seized on
November 5, 2020;
35.
$65,990.43 in Bank funds seized from Bank of America
account ending in ‘9700 in the name of Runyan Tax Service
Inc.
The government contends that each property described above
constitutes or is derived from proceeds obtained, directly or
indirectly, as a result of the violation of which Defendant was
found guilty, and is therefore subject to forfeiture to the United
States pursuant to Title 18, United States Code, Section
981(a)(1)(C).
If you conclude that the government has proved by a
preponderance of the evidence that the property listed above
constitutes or is derived from proceeds the Defendant obtained,
directly or indirectly, as a result of the violation(s) of which the
Defendant has been found guilty, you must find that such property is
forfeitable to the United States.
Federal Rule of Criminal Procedure 32.2; 18 U.S.C. § 981(a)(1)(C);
United States v. Lazarenko, 504 F. Supp. 2d 791, 796-97 (N.D. Cal.
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2007) (Rule 32.2(a) requires only that the indictment give notice of
the forfeiture in generic terms; that the Government did not itemize
all of the property subject to forfeiture until much later was of no
moment; older cases holding that property had to be listed in the
indictment are no longer good law); Rule 32.2(b)(2)(A) (The only
question to be determined during the forfeiture phase is whether the
evidence submitted during the guilt phase, together with any
additional evidence received during the forfeiture phase,
establishes by a preponderance of the evidence that there is the
requisite nexus between the underlying crime(s) of conviction and
the property sought to be forfeited by the government. “If the
court finds that the property is subject to forfeiture, it must
promptly enter a preliminary order of forfeiture . . . directing the
forfeiture of specific property . . . .”); United States v.
Monsanto, 491 U.S. 600, 607 (1989) (“Congress could not have chosen
stronger words to express its intent that forfeiture be mandatory in
cases where the statute applied.”); United States v. Newman, 659
F.3d 1235, 1240 (9th Cir. 2011) (following Monsanto: “When the
Government has met the requirements for criminal forfeiture, the
district court must impose criminal forfeiture, subject only to
statutory and constitutional limits”); id. (“[T]he district court
has no discretion to reduce or eliminate mandatory criminal
forfeiture”); Lazarenko, 476 F.3d at 648 (“Upon a finding that the
property involved is subject to forfeiture, a court must promptly
enter a preliminary order of forfeiture without regard to a third
party’s interests in the property”); United States v. Nava, 404 F.3d
1119, 1132 (9th Cir. 2005) (district court properly instructed jury
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that questions of ownership “were not before them”; jury’s return of
special verdict of forfeiture silent on the issue of ownership of
the property); United States v. Yeje-Cabrera, 430 F.3d 1, 15 (1st
Cir. 2005) (explaining that the primary purpose of Rule 32.2(b)(2)
was to preserve the resources of the court and third parties by
deferring the ownership issue to the ancillary proceeding, thus
avoiding duplicative litigation); United States v. Andrews, 530 F.3d
1232, 1236 (10th Cir. 2008) (once forfeitability is determined, the
court does not – “and indeed may not” -- determine ownership; that
issue is deferred to the ancillary proceeding); Lazerenko, 476 F.3d
at 648; Gaskin, 2002 WL 459005, at *9 n.4 (ownership is a question
for the court alone to determine in the ancillary proceeding),
aff’d, 364 F.3d 438 (2d Cir. 2004); United States v. Christensen,
828 F.3d 763 (9th Cir. 2015) (The standard of proof regarding the
criminal forfeitability of property is preponderance of the
evidence) (fraud); United States v. Kalish, 626 F.3d 165, 168 (2d
Cir. 2010); United States v. Garcia-Guizar, 160 F.3d 511, 518 (9th
Cir. 1998) (preponderance standard is constitutional because
criminal forfeiture is not a separate offense, but only an
additional penalty for an offense that was established beyond a
reasonable doubt); United States v. Hernandez-Escarsega, 886 F.2d
1560, 1576-77 (9th Cir. 1989) (interpreting identical language in 21
U.S.C. § 853, the forfeiture statute applicable to most criminal
forfeiture proceedings).
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COURT’S INSTRUCTION NO. _____
GOVERNMENT’S PROPOSED INSTRUCTION NO. 44
[Property Subject to Forfeiture for Money Laundering Conviction]
Under federal law, any defendant convicted of one or more
violations of Title 18, United States Code, Section 1956, shall
forfeit to the government all of the defendant’s right, title and
interest in any and all property, real or personal, involved in such
offense, or any property traceable to such property.
Federal Rule of Criminal Procedure 32.2; 18 U.S.C. § 982(a)(1).
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COURT’S INSTRUCTION NO. _____
GOVERNMENT’S PROPOSED INSTRUCTION NO. 45
[Scope of 18 U.S.C. §982(a)(1)]
Property subject to forfeiture as property involved in a
violation of Section 1956 of Title 18 of the United States Code
(Counts 26 through 32) includes:
1.
Money or other property that was the subject of the
financial transaction that constituted the money
laundering violation;
2.
Any property used to facilitate the money laundering
violation; and
3.
Any fees or commissions paid to the money launderer.
Property may be the subject of the financial transaction in a
number of ways. For example, the property may be the proceeds of
the underlying specified unlawful activity which were used to
conduct the transaction; it may be property that was commingled with
those proceeds at the time the financial transaction took place; or
it may be property that was obtained as part of an exchange or
purchase that constitutes the violation for which a defendant has
been found guilty.
Property that was used to facilitate the money laundering
transaction may include property that was not part of the
transaction itself, but was used to make the money laundering
offense easier to commit or harder to detect.
Property that is traceable to the property described in
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(1) through (3) above in this instruction is also subject to
forfeiture. The phrase “any property traceable to” such property
includes any property which was exchanged for, derived from, or
obtained with any of the property involved in the underlying money
laundering crime. For example, property involved in a money
laundering violation may be used to acquire, improve, or maintain
real or personal property in a transaction that is not a money
laundering violation, but that real or personal property is
forfeitable because it can be traced to property that was involved
in the money laundering violation. Property is forfeitable as
traceable to property that was involved in a money laundering even
if some untainted funds were also used to purchase, improve or
maintain the property.
18 U.S.C. § 982(a)(1); United States v. Cherry, 330 F.3d 658, 669
n.17 (4th Cir. 2003) (court properly instructed jury that it had to
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find that property “fairly represents the property which was
involved in, or is traceable to property involved in” the money
laundering counts); United States v. Huber, 404 F.3d 1047, 1058 (8th
Cir. 2005) (the SUA proceeds involved in a financial transaction, as
well as any clean money commingled with it, constitute the corpus of
the money laundering transaction; both are subject to forfeiture);
United States v. Stewart, 185 F.3d 112, 129-30 (3d Cir. 1999)
(tainted funds traced into account which held untainted funds were
forfeitable as “involved in” and “traceable to” money laundering);
United States v. Nicolo, 597 F. Supp. 2d 342, 355 (W.D.N.Y. 2009)
(if funds in bank account are subject to forfeiture as property
involved in money laundering, then vehicle purchased with those
funds is forfeitable as property traceable to such property); United
States v. Hawkey, 148 F.3d 920, 927-28 (8th Cir. 1998) (property
“traceable to” the laundering violation and any appreciation in
value is forfeitable; entire motor home forfeitable even if
untainted funds added to value of it).
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COURT’S INSTRUCTION NO. _____
GOVERNMENT’S PROPOSED INSTRUCTION NO. 46
[Forfeiture based on Money Laundering Offenses
Under 18 U.S.C. § 982(a)(1)]
The government seeks to forfeit the following property pursuant
to the findings of guilt on each of Counts 26 through 32:
1.
All of Defendant’s right, title and interest in certain
real Property located in Tarzana, California identified by
Assessors Parcel Number 2176-029-031
2.
All of Defendant’s right, title and interest in certain
real Property located in Glendale, California identified
by Assessors Parcel Number 5663-036-033
3.
All of Defendant’s right, title and interest in certain
real Property located in Palm Desert, California
identified by Assessors Parcel Number 694-331-008.
4.
Ledger re Nanos Cryptocurrency Hardware Wallet seized on
November 5, 2020.
The government contends that each property described above was
involved in or traceable to the money laundering violations for
which Defendants were found guilty, and is therefore subject to
forfeiture to the United States pursuant to Title 18, United States
Code, Section 982(a)(1).
If you conclude that the government has proved by a
preponderance of the evidence that the property listed above was
involved in such offense, or traceable to the violation(s) of which
the Defendant has been found guilty, you must find that such
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property is forfeitable to the United States.
Federal Rule of Criminal Procedure 32.2; 18 U.S.C. § 982(a)(1).
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COURT’S INSTRUCTION NO. _____
GOVERNMENT’S PROPOSED INSTRUCTION NO. 47
[Special Verdict Form]
A Special Verdict Form has been prepared for your use. With
respect to the property listed or described, you are asked to decide
whether it is subject to forfeiture to the government based on the
reasons I have explained to you. Your decision must be unanimous.
Indicate on the verdict form whether you find that the property
listed is subject to forfeiture, and then the foreperson should sign
and date the form.
Federal Rule of Criminal Procedure 32.2(b)(1); 18 U.S.C. § 981;
Libretti v. United States, 516 U.S. 29, 133 L. Ed. 2d. 271, 116 S.
Ct. 356, 365 (1995).
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