Court filing
NOTICE OF MOTION AND MOTION for Order for MOTION TO REDACT SUPERSEDING INDICTMENT… — USA v. Ayvazyan et al (Dkt. 422)
Record facts
| Court | U.S. District Court for the Central District of California |
|---|---|
| Filed | 2021-06-04 |
U.S. District Court for the Central District of California · No. 2:20-cr-00579-SVW · Doc. 422 · 2021-06-04 · Docket on CourtListener
Summary
The government's motion to redact the superseding indictment for use at trial in United States v. Richard Ayvazyan et al., No. 2:20-cr-00579-SVW, in the U.S. District Court for the Central District of California, filed June 4, 2021 (Doc. 422). It asks to delete paragraph 32, which alleges at least 151 fraudulent PPP and EIDL loan applications, and the allegation that Tamara Dadyan devised and participated in bank fraud. The government states that it does not intend to prove these allegations at the June 15, 2021 trial and has received no objection from any defendant. It cites United States v. Lorefice and United States v. Miller on narrowing an indictment without prejudice. A declaration of Assistant United States Attorney Scott Paetty attaches the proposed redacted indictment, the Superseding Indictment and a redlined version.
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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 S. 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 MOTION TO REDACT
SUPERSEDING INDICTMENT FOR USE AT
TRIAL; DECLARATION OF SCOTT
PAETTY; EXHIBITS
Trial Date:
June 15, 2021
Trial Time:
8:30 a.m.
Location:
Courtroom of the
Hon. Stephen V.
Wilson
Case 2:20-cr-00579-SVW Document 422 Filed 06/04/21 Page 1 of 10 Page ID
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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 its Motion To Redact
The Superseding Indictment For Use at Trial. The government’s
proposed redactions pertain to allegations that the government does
not intend to prove up or submit to the jury at the upcoming trial in
this matter, which is set to proceed on June 15, 2021.
Prior to filing this Motion, government counsel advised counsel
for defendants of the government’s intention to proceed at trial on a
redacted indictment as described in this Motion. Counsel for
defendant Marietta Terabelian, John Littrell, inquired as to the
reason the government was filing a redacted trial indictment.
Government counsel responded that the purpose of the redacted trial
indictment is to streamline the government’s case at trial. As of
the date of this filing, the government has not received an objection
to use of a redacted indictment at trial from any of the defendants.
This Motion is based upon the attached memorandum of points and
authorities, the declaration of Scott Paetty and attached exhibits,
//
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the files and records in this case, and such further evidence and
argument as the Court may permit.
Dated: June 4, 20121
Respectfully submitted,
TRACY L. WILKISON
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
Department of Justice Trial Attorney
Attorneys for Plaintiff
UNITED STATES OF AMERICA
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MEMORANDUM OF POINTS AND AUTHORITIES
I.
BACKGROUND
In submitting this motion, the government hereby seeks
permission to redact from the Superseding Indictment certain
allegations against RICHARD AYVAZYAN (“R. AYVAZYAN”), MARIETTA
TERABELIAN, ARTUR AYVAZYAN (“A. AYVAZYAN”), TAMARA DADYAN (“T.
DADYAN”), MANUK GRIGORYAN, ARMAN HAYRAPETYAN, EDVARD PARONYAN, and
VAHE DADYAN (“V. DADYAN”) (collectively, “defendants”) that will not
be essential to the presentation of the government’s case-in-chief at
trial, and to file a Redacted Trial Superseding Indictment for use at
trial in the above-entitled matter.
In paragraph thirty-two of the Superseding Indictment, the
government alleges as follows:
As part of the conspiracy, between in or around March 2020
and in or around August 2020, defendants R. AYVAZYAN,
TERABELIAN, A. AYVAZYAN, T. DADYAN, GRIGORYAN, HAYRAPETYAN,
PARONYAN, and V. DADYAN, together with other
coconspirators, submitted and caused the submission of at
least 151 fraudulent PPP and EIDL loan applications seeking
a total of at least $21.9 million in PPP and EIDL proceeds
from the SBA and at least 11 financial institutions, and
received a total of at least $18 million in PPP and EIDL
loan proceeds from the SBA and financial institutions.
In paragraph sixty-one of the Superseding Indictment, the government
alleges as follows:
Beginning no later than in or around January 2021 and
continuing until at least in or around February 2021, in
Los Angeles County, within the Central District of
California, and elsewhere, defendant T. DADYAN, together
with others known and unknown to the Grand Jury, knowingly
and with intent to defraud, attempted to execute a scheme
to obtain moneys, funds, credits, assets, and other
property owned by and in the custody and control of Bank 8,
a federally-insured financial institution, by means of
material false and fraudulent pretenses, representations,
and promises, and the concealment of material facts
To streamline the presentation of the evidence at trial, the
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government intends to redact the entirety of paragraph 32, and the
allegations in paragraph sixty-one that, defendant T. DADYAN,
“devised, [and] participated in” bank fraud as alleged in count
thirty-three of the Superseding Indictment because the government
does not intend to prove up these allegations at trial.
Therefore, referring to the pagination of the Superseding
Indictment (ECF 154), the government’s proposed redactions are as
follows:
(1) at p. 11, lines 3 to 11 are deleted; and
(2) at p. 46, line 11 to 12 “devised, participated in, and” is
deleted.
A copy of the proposed Redacted Trial Superseding Indictment,
incorporating the alterations identified above with the paragraphs
renumbered to incorporate the redactions, is attached to the
declaration of Scott Paetty (“Paetty Decl.”) as Exhibit A. A true
and correct copy of the Superseding Indictment is attached to the
Paetty Decl. as Exhibit B, and a redlined version of the Superseding
Indictment, showing the changes resulting in the Redacted Trial
Superseding Indictment, is attached to the Paetty Decl. as Exhibit C.
As noted, the grounds for these proposed redactions of the
Superseding Indictment are that the redactions contain allegations
that the government does not intend to prove up at trial and because
it assists the government in streamlining the presentation of
evidence at trial. Paetty Decl. ¶ 4.
Prior to filing this Motion, government counsel advised counsel
for defendants of the government’s intention to proceed at trial on a
redacted indictment as described in this Motion. Counsel for
defendant Marietta Terabelian, John Littrell, inquired as to the
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reason the government was filing a redacted trial indictment.
Government counsel responded that the purpose of the redacted trial
indictment is to streamline the government’s case at trial. That was
the only response the government received regarding this Motion. As
of the date of this filing, the government has not received an
objection to use of a redacted Superseding Indictment at trial from
any of the defendants.
II.
ARGUMENT
It is well-settled that, where a redaction has the effect of
narrowing the indictment, makes no material change in the charges and
does not result in prejudice to the defendant, it is permissible. In
United States v. Lorefice, 192 F.3d 647 (7th Cir. 1999), the Seventh
Circuit addressed precisely the issue of the propriety of the
district court’s allowing the government to redact allegations from
the indictment without resubmitting the matter to the grand jury, and
it ruled as follows:
There was nothing wrong in the district court’s actions.
An indictment may be altered without resubmission to the
grand jury as long as the alteration makes no material
change and there is no prejudice to the defendant [citation
omitted]. Indeed, in United States v. Miller, 471 U.S. 130
(1985), the Supreme Court expressly held that to drop from
an indictment allegations that are unnecessary to an
offense clearly contained within it does not
unconstitutionally amend the indictment. Id. at 144,
overruling part of Ex parte Bain, 121 U.S. 1 (1887).
Lorefice, 192 F.3d at 653. Ninth Circuit authority is wholly
consistent with the Seventh Circuit’s ruling in Lorefice.1 See
1 The Seventh Circuit also correctly held in Lorefice that the
district court’s redaction of the indictment, based on the
government’s motion, was not a proper subject for exploration at
trial, because “[e]vidence about the government’s drafting decisions
is not relevant for the jury’s consideration, and it is potentially
(footnote cont’d on next page)
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United States v. Aquilar, 756 F.2d 1418, 1432 (9th Cir. 1985)
(correction of clerical errors and “reading out” of surplusage
to an indictment is permitted without resubmission to the grand
jury, as long as defendant is not prejudiced thereby); United
States v. Abascal 564 F.2d 821, 832 (9th Cir. 1977) (same).
Given that: (1) the proposed redactions to the Superseding
Indictment contain allegations that the government does not
intend to prove up at trial, and (2) redaction of these
allegations makes no adverse material changes in the charges and
does not prejudice defendants, the Court should grant the
government’s motion to redact the Superseding Indictment in the
manner indicated for use at trial.
III. CONCLUSION
For all the foregoing reasons, the government hereby requests
permission form the Court to redact the Superseding Indictment
//
confusing.” Lorefice, 192 F.3d at 653. Accordingly, in the event
that the Court grants the government’s instant motion, it should also
preclude defendants from introducing evidence at trial about the
redaction itself because it is immaterial to the charges at issue
during the trial. Id. at 652-53.
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as set forth in Exhibit A to the Paetty Declaration and to have
Exhibit A filed as the Redacted Trial Superseding Indictment in
this matter.
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
Department of Justice Trial Attorney
Attorneys for Plaintiff
UNITED STATES OF AMERICA
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DECLARATION OF SCOTT PAETTY
I, Scott Paetty, hereby state and declare:
1. I am an Assistant United States Attorney (“AUSA”) in the
Central District of California and, along with AUSAs Catherine Ahn
and Brian Faerstein, and Department of Justice Trial Attorney
Christopher Fenton, am responsible for handling the prosecution of
the case of United States v. Richard Ayvazyan, et al., CR 20-579(A)-
SVW. I make this declaration based upon personal knowledge and, if
called upon to do so, could and would so testify.
2. A copy of the government’s proposed Redacted Trial
Superseding Indictment is attached to this declaration as Exhibit A.
A copy of the Superseding Indictment in this case is attached to this
declaration as Exhibit B. A redlined version of the Superseding
Indictment, showing the changes made to the Indictment that resulted
in the proposed Redacted Trial Superseding Indictment, is attached to
this declaration as Exhibit C.
3. Referring to the pagination of the Superseding Indictment,
the government’s proposed redactions are as follows:
(1) at p. 11, lines 3 to 11 are deleted; and
(2) at p. 46, line 11 to 12 “devised, participated in, and” is
deleted.
4. The grounds for these proposed redactions are that they
contain allegations that the government does not intend to prove up
at trial, and redaction of these allegations makes no adverse
material changes in the charges and does not prejudice defendants.
5. Before filing this motion, government counsel sent an email
to counsel for all defendants seeking their position regarding this
motion. Counsel for defendant Marietta Terabelian, John Littrell,
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inquired as to the reason the government was filing a redacted trial
indictment. That was the only response the government received
regarding this Motion. Government counsel responded that the purpose
of the redacted trial indictment is to streamline the government’s
case at trial. As of the date of this filing, the government has not
received an objection to use of a redacted indictment at trial from
any of the defendants.
I declare under penalty of perjury that the foregoing is true and
correct to the best of my knowledge. Executed at Los Angeles,
California on June 4, 2021.
SCOTT PAETTY
Case 2:20-cr-00579-SVW Document 422 Filed 06/04/21 Page 10 of 10 Page ID
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