OPPOSITION to Joint NOTICE OF MOTION AND MOTION to Dismiss Case or to Continue Trial… — USA v. Ayvazyan et al (Dkt. 416)

Summary

Filed June 4, 2021 as Document 416 in Case 2:20-cr-00579-SVW (C.D. Cal.), this is the government's memorandum in opposition to Richard Ayvazyan and Marietta Terabelian's motion to dismiss under Fed. R. Crim. P. 12(b) or continue the trial to hold a pre-trial Kastigar hearing (ECF No. 381). The government argues the motion repackages the earlier Kastigar motion (ECF No. 338) and rests on speculation and unfounded inferences, including about 58 individuals and entities. It contends the Ninth Circuit has held that dismissal is not the remedy for this kind of challenge and that a pre-trial Kastigar hearing would be inefficient and unworkable. It cites the Court's order (ECF 356) setting the hearing after trial. These are the government's positions.

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TRACY L. WILKISON 
Acting United States Attorney 
SCOTT M. GARRINGER 
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 
No. CR 20-579(A)-SVW 
 
GOVERNMENT’S MEMORANDUM IN 
OPPOSITION TO MOTION TO DISMISS 
UNDER FED. R. CRIM. P. 12(B) OR 
CONTINUE THE TRIAL TO HOLD A PRE-
TRIAL KASTIGAR HEARING 
 
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      “Anton Kudiumov,” 
ARMAN HAYRAPETYAN, 
EDVARD PARONYAN, 
aka “Edvard Paronian” and 
    “Edward Paronyan,” and 
VAHE DADYAN, 
 
Defendants. 
 
Plaintiff United States of America, by and through its counsel 
of record, the Acting United States Attorney for the Central District 
of California, Assistant United States Attorneys Scott Paetty, 
Catherine S. Ahn, and Brian Faerstein, and Department of Justice 
Trial Attorney Christopher Fenton, hereby files this memorandum in 
opposition to defendants Richard Ayvazyan and Marietta Terabelian’s 
motion to dismiss or for a pre-trial Kastigar hearing.  (ECF No. 
381.) 
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This opposition is based upon the attached memorandum of points 
and authorities and exhibits, the files and records in this case, and 
such further evidence and argument as the Court may permit.   
Dated: June 4, 2021 
Respectfully submitted, 
 
TRACY L. WILKISON 
Acting United States Attorney 
 
SCOTT M. GARRINGER 
Assistant United States Attorney 
Chief, Criminal Division 
 
 
 
   /s/    
 
SCOTT PAETTY 
CATHERINE S. AHN 
BRIAN FAERSTEIN 
Assistant United States Attorneys 
 
CHRISTOPHER FENTON 
Trial Attorney, Department of 
Justice 
 
 
Attorneys for Plaintiff 
UNITED STATES OF AMERICA 
 
 
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TABLE OF CONTENTS 
DESCRIPTION 
PAGE 
 
MEMORANDUM OF POINTS AND AUTHORITIES ................................ 1 
I. 
INTRODUCTION .................................................... 1 
II. 
ARGUMENT ........................................................ 1 
A. 
The Court Should Deny the Defendants’ Motion to 
Dismiss Pursuant to Rule 12(b) Because Defendants Do 
Not Allege Structural Error in the Grand Jury 
Proceedings ................................................ 1 
B. 
Holding Any Portion of the Kastigar Inquiry Pre-trial 
Would Be Inefficient and Unworkable. ...................... 5 
III. CONCLUSION ...................................................... 9 
 
 
 
 
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TABLE OF AUTHORITIES 
DESCRIPTION 
 
 
 
 
 
 
 
 
 
 
PAGE 
Federal Cases 
United States v. Allen, 
530 U.S. 27 (2000)  .................................................  4 
United States v. Bingham, 
653 F.3d 983 (9th Cir. 2011)  ....................................  3 
United States v. Carozza, 
608 Fed. Appx. 532 (9th Cir. 2015)  ..............................  4 
United States v. Connolly, 16-cr-0370, 
2019 WL 2120523 (May 2, 2019)  ...................................  7 
United States v. Dudden, 
65 F.3d 1461 (9th Cir. 1995)  ....................................  6 
United States v. Gallo, 
859 F.2d 1078 (2nd Cir. 1988)  ...................................  7 
United States v. Hubbell, 
864 F.3d 63 (2nd Cir. 2017)  .......................................  4 
United States v. Kaplan, 
554 F.2d 958 (9th Cir. 1977)  ....................................  4 
United States v. Montoya, 
45 F.3d 1286 (9th Cir. 1995)  ....................................  5 
United States v. Rogers, 
722 F.2d 557 (9th Cir. 1983)  .................................  6, 8 
United States v. Serrano, 
870 F.2d 1 (9th Cir. 1989)  ......................................  6 
 
 
 
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MEMORANDUM OF POINTS AND AUTHORITIES 
I. 
INTRODUCTION 
Relying on conjecture, hyperbole, and false claims that the 
government has conceded indisputable facts, defendants now ask the 
Court to bypass the Kastigar hearing they requested and instead 
dismiss the indictment outright.  Alternatively, defendants ask the 
Court to reconsider its prior decision to hold the Kastigar hearing 
post-trial, and rearrange its schedule to continue the trial and hold 
the Kastigar hearing beforehand.  Defendants base this request, in 
part, on Fed. R. Crim. P. 12(b).  The Court should deny defendants’ 
motion in its entirety.  As set forth below, the Ninth Circuit has 
held that dismissal is not the remedy for the sort of challenge that 
defendants lodge pursuant to Fed. R. Crim. P. 12(b).  Moreover, given 
the circumstances of this case, a pre-trial Kastigar hearing would be 
inefficient and unworkable.     
II. 
ARGUMENT 
A. 
The Court Should Deny the Defendants’ Motion to Dismiss 
Pursuant to Rule 12(b) Because Defendants Do Not Allege 
Structural Error in the Grand Jury Proceedings 
Having previously moved to dismiss the indictment on Kastigar 
grounds (ECF No. 338), defendants have now filed another motion to 
dismiss that repackages these same arguments, this time under the 
ill-fitting guise of Fed. R. Crim. P. 12(b)(3)(A) (allegations 
relating to a defect in the institution of the prosecution) and 
12(b)(3)(B) (allegations relating to a defect in the indictment). 
(ECF No. 381.)  The essence of defendants’ motion is that the Court 
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should dismiss the indictment because the grand jury was exposed to 
compelled information.1  
Defendants’ motion is based on speculation and unfounded 
inferences, not facts.  For example, defendants claim they found 
references in tainted evidence to 58 individuals and entities 
associated with loans charged in the indictment and conclude “[t]he 
grand jury [therefore] heard evidence and argument about each of 
these 58 individuals or entities and that evidence and argument 
violated the defendants’ Fifth Amendment rights.”  (ECF 381 at 6.)  
The reality, however, is that defendants merely speculate about these 
58 individuals and entities, and what evidence, if any, the 
government presented to the grand jury about them.2  Similarly, 
defendants infer that government investigators did not know about the 
links between defendants and Iuliia Zhadko or Viktoria Kauichko until 
after the border stop because these alter egos were not listed as 
“known associates” in the FBI’s request to CBP for secondary 
screening.  (See, e.g., ECF 381 at 9-10.)  Defendants are wrong and 
the government will address these and other facts necessary to carry 
its burden at the Kastigar hearing when so ordered by the Court.3  
 
1 Defendants’ brief does not identify the specific sub-section 
of Rule 12(b)(3)(A) and (B) under which they proceed.  As to 
subsection 12(b)(3)(A), the government construes the defendants’ 
motion as proceeding under 12(b)(3)(A)(v), which pertains to “an 
error in the grand-jury proceeding.”  As to Rule 12(b)(3)(B), none of 
the prongs are applicable.   
2 Defendants’ claim that they found “obvious” examples of 
tainted evidence presented to the grand jury is similarly meritless.  
(See ECF 381 at 7-8 (referencing Annandale Nursery, Camilo Amaya, 
Lilia Turcan, Gevorg Boyrazyan, and Bayview Consulting).)  None of 
these names are mentioned in the indictment.   
3 Defendants argue that “[i]f the indictment was untainted, the 
government would respond to this motion with a declaration to the 
Court, swearing under penalty of perjury that each of the above-
(footnote cont’d on next page) 
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Even if defendants’ incorrectly assumed facts were true, it is 
far from clear that the use of compelled testimony amounts to an 
“error in the grand-jury proceeding” for the purposes of Rule 
12(b)(3)(A)(v).  The defendants cite no cases that use this rule as a 
vehicle to pursue a Kastigar violation and the fact that their 
previous motion to dismiss on Kastigar grounds did not mention Rule 
12 suggests that they did not hold this view when the issue was first 
raised. (ECF No. 338.) 
Furthermore, even if we assume for the sake of argument that a 
Kastigar violation occurred (which it did not), and that the 
violation amounts to an “error in the grand-jury proceeding” (which 
it does not), pre-trial dismissal is not the appropriate remedy 
because these errors would be cured with a conviction by the petit 
jury.  In United States v. Bingham, the Ninth Circuit recognized that 
non-structural defects in the grand jury process – specifically, 
allegedly misleading statements in the grand jury presentation - are 
harmless if followed by a conviction at trial: 
[Defendant] claims that the government engaged in 
outrageous conduct during the grand jury proceedings and 
that the district court erred in denying [his] motion to 
this effect.  The scope of our review is quite narrow, 
because the petite jury convicted [the defendant] on all 
charges.  Thus, any error in the grand jury proceeding 
connected with the charging decision is deemed harmless 
beyond a reasonable doubt.  After a conviction, only a 
structural error that renders the grand jury proceedings 
fundamentally unfair may be corrected.  The only structural 
errors the Supreme Court has recognized are racial and 
gender discrimination in the selection of the grand jurors. 
 
referenced allegations was proven to the grand jury solely by 
untainted evidence. But the government will not provide that 
declaration because it cannot.”  (ECF 381 at 6-7.)  Defendants are 
wrong.  The government declines to provide such a declaration because 
doing so would be inconsistent with the Court’s order (ECF 356), 
which has directed that the Kastigar hearing will be held after the 
trial, not before, pursuant to a process set by the Court, not 
defendants.     
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653 F.3d 983, 998 (9th Cir. 2011) (internal quotations and 
citations omitted).  Notably, in United States v. Carozza, which 
held that “any misstatements by the DEA agents before the grand 
jury were rendered harmless by the petit jury’s guilty verdict,” 
the Ninth Circuit made clear that the district court may rule on  
a related motion to dismiss “before or after trial.”  608 Fed. 
Appx. 532, 536 (9th Cir. 2015); see also United States v. 
Kaplan, 554 F.2d 958, 970 n.7 (9th Cir. 1977) (court may defer 
ruling on dispositive motions).4 
Because the defendants do not allege a structural defect in 
the grand jury process, the harmless error standard applies to 
their Rule 12 motion.  Dismissal of an indictment is an extreme 
remedy and the government submits that it should be given the 
opportunity to demonstrate, by convincing a petit jury to 
convict, that the purported violations of which the defendants 
complain are not prejudicial. 
Moreover, pre-indictment dismissal makes little sense as a 
matter of policy.  Although it is impossible to say with 
certainty what steps the government would take in response to a 
dismissal, given the strength of evidence against the 
defendants, and the fact that the Court has already determined 
 
4 In United States v. Allen, the Second Circuit relied on United 
States v. Hubbell in holding that “harmless error review applies to 
violations of non-structural constitutional rights, if the government 
has presented immunized testimony to the grand jury, the indictment 
should be dismissed unless the government establishes that the grand 
jury would have indicted even absent that testimony.”  864 F.3d 63, 
99-100 (2d Cir. 2017) (reviewing evidence developed during a post-
trial Kastigar hearing) (citing 530 U.S. 27 (2000)).  The defendants’ 
argument in Allen was presented as a Kastigar challenge, not a Rule 
12(b) challenge as the defendants do in the instant motion.  And 
under Ninth Circuit precedent, conviction at trial would cure any 
non-structural error alleged under Rule 12(b).      
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that the United States had probable cause to conduct a premises 
search without the offending information (ECF No. 296), re-
indictment on similar charges is a likely outcome. 
 
B. 
Holding Any Portion of the Kastigar Inquiry Pre-trial Would 
Be Inefficient and Unworkable.   
On May 21, 2021, the Court determined that, given the 
circumstances of this case, it made sense to defer resolution of 
the defendants’ Kastigar claims until after the trial: “[g]iven 
the volume of evidence in this case, a pre-trial Kastigar 
hearing may require the Court to make findings about evidence, 
witness interviews, and prosecutorial decisions that ultimately 
will have no bearing at trial.”  (ECF No. 356 at 4.)  The 
defendants’ motion to reconsider this decision provides no 
indication that any of the underlying circumstances have 
changed.  Instead, they argue that litigating some aspects of 
their Kastigar claims pre-trial would be tactically advantageous 
to the defense and that the issue of whether the indictment was 
“tainted” by compelled information should be resolved before 
trial.5  (ECF No. 381 at 11.) 
Whether, and how, to conduct a Kastigar hearing is left to the 
discretion of the district court and a trial court’s findings 
regarding the “use” of compelled information will not be disturbed 
absent clear error.  United States v. Montoya, 45 F.3d 1286, 1295 
(9th Cir. 1995).  These deferential standards recognize that the most 
 
5 As in prior submissions, defendant Richard Ayvazyan 
incorrectly states here that the government “conceded” facts and 
arguments that the government did not actually concede.  (See, e.g., 
ECF 381 at 11 (“Unlike cases in which non-evidentiary use is in 
question, here, the government has conceded such use under oath 
….”).)  The government made no such concessions.   
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prudent way to proceed in Kastigar litigation depends on the unique 
circumstances of the case at hand.  Given the dynamics of this case, 
a pre-trial hearing on any aspect of the defendants’ Kastigar 
challenge would be inefficient and unworkable.  This is so for five 
reasons. 
First, a trial will clarify whether the government made the 
“non-evidentiary” uses of the compelled statements, as 
defendants allege.  Specifically, defendants indicate an 
intention to explore whether the government used compelled 
statements to “uncover other incriminating evidence, focus the 
investigation, decide to initiate prosecution, interpret other 
evidence, or otherwise plan trial strategy.”  (ECF 381 at 13.)6  
It stands to reason that, if the government used compelled 
testimony to focus its investigation or plan trial strategy, 
then these uses would manifest at trial, and could be 
adjudicated at a post-trial hearing.   
Second, even if there was pre-trial “use” of a compelled 
statement, a trial will help clarify whether that use mattered.  
Pretrial uses of compelled testimony, including use during a 
grand jury presentation, are subject to a harmless error 
analysis.  United States v. Rogers, 722 F.2d 557, 560 (9th Cir. 
 
6 The Ninth Circuit has not been entirely clear on the types of 
non-evidentiary uses of compelled information which are permitted.  
Compare United States v. Dudden, 65 F.3d 1461, 1467 (9th Cir. 1995) 
(“The government may not use the statements to uncover other 
incriminating evidence, focus the investigation, decide to initiate 
prosecution, interpret other evidence, or otherwise plan trial 
strategy”) with United States v. Serrano, 870 F.2d 1, 17-18 (9th Cir. 
1989) (“[W]e agree with the Second Circuit that a prosecution is not 
foreclosed merely because the immunized testimony might have 
tangentially influenced the prosecutor’s thought processes in 
preparing the indictment and preparing for trial”) (internal 
quotations omitted).   
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1983).  Because the objective of the Kastigar standard is to put 
the defendant in the same position as he was in prior to 
compulsion, courts evaluating pre-trial use of compelled 
statements have looked to whether the violation impacted the 
course of subsequent proceedings – including trial – in 
evaluating whether to grant relief.  In United States v. 
Connolly, for example, the Court concluded that evidence 
compelled from the defendant through his employer was never used 
in a way that necessitated dismissal of the indictment.  16-cr-
0370, 2019 WL 2120523 at *23 (May 2, 2019).  Importantly, the 
court’s analysis of this question explicitly relied on the 
government’s trial presentation: “the Court having sat through a 
lengthy trial and reviewed the evidence on numerous occasions – 
does not doubt that Black would have been indicted and convicted 
even if [the defendant were not compelled to testify].”  Id.  
Similarly, the concurrence in United States v. Gallo credited 
the district court’s observation that pretrial use of compelled 
testimony did not impact the proceedings writ large in affirming 
its ruling that use of the testimony in a wire tap application 
did not justify dismissal of the indictment: “The district court 
found that the use of Miron’s testimony had ‘no effect at all on 
events’; that, instead, it was like ‘a leaf dropping unobserved 
in a deep forest’ and Miron was ‘left in precisely the same 
position as if he had never testified.’”  859 F.2d 1078, 1091 
(2d Cir. 1988) (Van Graafeiland, J., concurring). 
Third, pretrial litigation of a Kastigar issue is 
unworkable where, as here, defendants are challenging non-
evidentiary uses of compelled testimony such as making strategic 
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decisions and preparing for trial.  As this Court has already 
recognized, any hearing held before trial will necessarily 
involve a fluid record.  This is because the government’s trial 
preparation (and the strategic decisions attendant to trial 
preparation) will continue up to and during any pre-trial 
Kastigar hearing.  This issue is particularly acute given the 
scope of the discovery sought by the defense.  (See ECF No. 353 
(setting forth 10 discovery demands purportedly related to 
Kastigar, including demands for privileged communications, 
attorney work product, and secret grand jury materials).)  While 
the government concedes no duty to produce the discovery that 
defendants have requested, ongoing trial preparation efforts 
will surely generate more of the types of documents that they 
seek.  Discovery under these circumstances would be 
unmanageable. 
Fourth, the defendants’ claim that a pretrial Kastigar 
hearing will save them from having “to sit through a federal 
criminal trial that may ultimately prove unnecessary” employs 
wishful thinking.  Under the harmless error doctrine, a motion 
to dismiss the indictment on Kastigar grounds should be 
dismissed if the government shows that the grand jury heard 
“adequate untainted evidence to support the indictment.”  
Rogers, 722 F.2d at 560.  The Court already found that a search 
warrant for defendants’ residence was supported by probable 
cause after excising all references to the evidence obtained 
during the border stop. (ECF 296 at 18-22.)  Specifically, the 
Court found that, even without the evidence from the border 
stop, “there was ample evidence linking Defendants to Zhadko and 
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Kauichko.”  (Id.)  That search warrant was obtained on November 
3, 2020, ten days before the case agents first accessed the 
digital devices obtained during the border stop.  At the 
Kastigar hearing, the government will show that the indictments 
were not obtained based on tainted evidence.  However, even if 
tainted evidence was presented to the grand jury, there is good 
cause to believe that the other evidence presented to the grand 
jury similarly amounted to probable cause such that there was 
harmless error.7 (See, e.g., ECF 310, 311.) 
Finally, defendants’ request for a continuance – despite 
their prior insistence on proceeding expeditiously - is 
infeasible.  Pandemic-related trial constraints substantially 
limit the number of jury trials that may occur simultaneously in 
order to protect public health and safety.  Defendants have no 
constitutional right to a pretrial Kastigar hearing and should 
not be permitted to disrupt the Central District of California’s 
trial calendar merely so that they may continue to multiply 
pretrial proceedings. 
Under these circumstances, even if Rule 12(b)(3)(A) or (B) 
applies to defendants’ Kastigar contentions, there is ample 
“good cause to defer a ruling” until after trial.  Fed. R. Crim. 
P. 12(d).  The Court should stand by its prior order and conduct 
any necessary Kastigar proceedings after trial. 
III. CONCLUSION 
For the foregoing reasons, the government respectfully requests 
that the Court deny defendants’ motion in its entirety. 
 
7 Of course, if defendants are acquitted at trial, there would 
be no need for a Kastigar hearing at all.   
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