Court filing
REPLY in support of Third MOTION in Limine to Exclude Evidence Or Argument That… — USA v. Ayvazyan et al (Dkt. 438)
Record facts
| Court | U.S. District Court for the Central District of California |
|---|---|
| Filed | 2021-06-07 |
U.S. District Court for the Central District of California · No. 2:20-cr-00579-SVW · Doc. 438 · 2021-06-07 · Docket on CourtListener
Summary
The government's reply in support of its Motion in Limine #3 (ECF 390) 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 June 7, 2021 as Doc. 438. The motion seeks to exclude evidence or argument that the October 19-20, 2020 border stop at Miami International Airport and the November 5, 2020 premises searches were unlawful. The reply accepts that Richard Ayvazyan's defense may question the quality of the investigation within limits, but argues that claims about how the searches were carried out concern suppression issues the court already decided. It also asks the court to bar arguments of vindictive prosecution, outrageous government conduct or tainted evidence, noting that the court has ordered a post-trial Kastigar hearing. The reply runs 12 pages.
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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
RICHARD AYVAZYAN,
aka “Richard Avazian” and
“Iuliia Zhadko,”
MARIETTA TERABELIAN,
aka “Marietta Abelian” and
“Viktoria Kauichko,”
ARTUR AYVAZYAN,
aka “Arthur Ayvazyan,” and
TAMARA DADYAN,
MANUK GRIGORYAN,
aka “Mike Grigoryan,” and
“Anton Kudiumov,”
ARMAN HAYRAPETYAN,
EDVARD PARONYAN,
aka “Edvard Paronian” and
“Edward Paronyan,” and
VAHE DADYAN,
No. CR 20-579(A)-SVW
GOVERNMENT’S REPLY IN SUPPORT OF
ITS MOTION IN LIMINE #3 TO EXCLUDE
EVIDENCE OR ARGUMENT THAT OCTOBER
19-20, 2020 MIAMI BORDER STOP AND
NOVEMBER 5, 2020 PREMISES SEARCHES
WERE UNLAWFUL
Hearing Date: June 14, 2021
Hearing Time: 1:30 p.m.
Trial Date: June 15, 2021
Location: Courtroom of the
Hon. Stephen V.
Wilson
Case 2:20-cr-00579-SVW Document 438 Filed 06/07/21 Page 1 of 12 Page ID
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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 reply in support
of its motion in limine #3 to exclude evidence and arguments,
including on cross examination of government witnesses, that the
border stop on October 19-20, 2020 at the Miami International Airport
and the premises searches conducted on November 5, 2020 were unlawful
(ECF 390). This reply is based upon the attached memorandum of
points and authorities, the files and records in this case, and such
further evidence and argument as the Court may permit.
Dated: June 7, 2021
Respectfully submitted,
TRACY L. WILKISON
Acting United States Attorney
SCOTT M. GARRINGER
Assistant United States Attorney
Chief, Criminal Division
/s/
SCOTT PAETTY
CATHERINE 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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REPLY MEMORANDUM OF POINTS AND AUTHORITIES
The government’s motion in limine no. 3 seeks to exclude
evidence and argument at trial that the border search in Miami or
subsequent residence searches in this case were unlawful or violated
defendants’ constitutional rights. (ECF 390.) The legality of these
searches and attendant conduct have been litigated extensively and
ruled upon by the Court, and such issues are improper and irrelevant
to the jury’s consideration of guilt in this case.
Defendant Richard Ayvazyan’s (“defendant”) opposition states
that he will not “argue to the jury that the investigatory activities
were illegal but rather that they were emblematic of a shoddy
investigation by law enforcement officials who had already concluded
the defendants were guilty.” (ECF 417 at 1.) But defendant
realleges factual matters, including purported “military-style raids”
and accusations of “being a terrorist,” that pertain solely to the
legality of the searches in this case and not to any issues at trial,
while also insinuating his intent to raise other due process
allegations for the jury’s consideration.
This reply addresses defendant’s mistaken contentions as to the
permissible bounds of questioning the government’s investigation at
trial. The government also responds to what it perceives to be
defendant’s intention to make arguments at trial sounding in
vindictive or discriminatory prosecution or outrageous government
conduct, or arguing issues related to the purported “taint” of the
government’s evidence to the jury, all of which are improper as a
matter of law.
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I.
EVIDENCE OR ARGUMENT AT TRIAL REGARDING THE ALLEGED UNLAWFULNESS
OF GOVERNMENT SEARCHES UNDER THE GUISE OF QUESTIONING THE
QUALITY OF THE INVESTIGATION IS IMPROPER
Defendant contends that he will ask the jury “to assess critical
questions regarding the completeness and efficacy of the government’s
investigation,” relying, in substantial part, on United States v.
Sager, 227 F.3d 1138 (9th Cir. 2000). (ECF at 4, 5, 6.) The
government does not dispute that the defense may, within prescribed
limits and with adequate foundation, question at trial the “quality
of the [government’s] investigation,” alleged defects in the
evidence, or the credibility and potential bias of the government’s
witnesses. Sager, 227 F.3d at 1145, 1146.
Inquiries about the government’s investigation are not without
limits, however. As the Sager court observed, “[i]n circumstances
different from these, a court may properly decide that such a line of
investigation is to be limited for some independent evidentiary
reason, such as that the evidence would be cumulative.” Id. at 1146
(citing United States v. Miller, 874 F.2d 1255, 1266 (9th Cir.
1989)). Similarly, in United States v. Yagman, this Court recognized
that “Sager does not give Defendant carte blanche to attack all
aspects of the [government’s] investigation,” including where “the
relevance of such evidence would be substantially outweighed by the
risk of jury confusion, undue delay, and prejudice.” United States
v. Yagman, CR 06-227(A)-SVW, 2007 WL 9724391, at *6 (C.D. Cal. May
16, 2007); see also United States v. Yagman, 345 F. App’x 312, 314
n.1 (9th Cir. 2009) (affirming court’s exclusion of defense proposed
“framing” evidence and noting “none of the proffered testimony would
have raised any concerns over the credibility or validity of any of
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the documentary evidence produced during the government’s
investigation”).
Here, in elaborating on the anticipated scope of his inquiry
about the government’s investigation, defendant states his intention
to raise with the jury allegations pertaining to the execution of the
searches in this case that have no relevance to the issues at trial.
For instance, defendant once again contends that he was “wrongfully
accused of being a terrorist” and “l[ied] to . . . about whether he
was entitled to a lawyer.” (ECF 417 at 2, 4.) He also points once
again to purported “military-style raids of the defendants’ homes
that involved the harassment of the defendants’ children.” (Id. at
2.) Putting aside the inaccuracy and exaggeration of these
allegations, which the parties litigated extensively in pretrial
motions, these and other potential claims relating to the manner and
execution of the border search and premises warrants are irrelevant
to the jury’s consideration of the evidence at trial, including any
purported gaps in the government’s investigation.
Among other things, these issues pertain (and pertained) solely
to the Court’s evaluation of defendants’ suppression arguments. As
noted in the government’s moving brief, United States v. Reed, 575
F.3d 900 (9th Cir. 2009), is instructive. There, the district court
excluded defense expert testimony at trial where the defense “sought
to present the same evidence adduced at the hearings on the renewed
motion to suppress” relating to alleged “‘anomalies’ in the wiretap
that could indicate that the Government was conducting illegal
wiretaps.” Id. at 919. The Ninth Circuit affirmed the district
court’s exclusion of the evidence, reasoning that the “legality of a
wiretap and the question of whether the Government had a warrant for
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a wiretap is not a question for the jury to consider, because it is
not immediately relevant to the question of guilt.” Id. (citing
Jones v. United States, 362 U.S. 257, 264 (1960)); see also Jones,
362 U.S. at 264 (requirement that motions to suppress “be made before
trial . . . is designed to eliminate from the trial disputes over
police conduct not immediately relevant to the question of guilt”).
The legality of the searches in this case and purported
constitutional violations relating thereto are not “immediately
relevant to the question of guilt” and thus are irrelevant and carry
no probative value at trial.
Defendant’s anticipated arguments about the conduct of Customs
and Border Protection (“CBP”) officers in Miami and law enforcement
executing the premises search warrants in this District similarly are
irrelevant to issues of guilt. Defendant has not proffered any
credible information, other than repeated broad and baseless attacks
leveled at law enforcement and government personnel, calling into
question the validity and integrity of the actual admissible evidence
obtained as a result of the border and premises searches. See
Yagman, 345 F. App’x at 314 n.1.
Moreover, any alleged deficiencies in CBP’s questioning of
defendant or its border search procedures have already been litigated
and ruled upon by the Court. CBP’s role in the investigation was
minimal in any event. The investigation was conducted primarily by
the United States Small Business Administration, Federal Bureau of
Investigation, and Internal Revenue Service Criminal Investigation
Division. These agencies, not CBP, directed the course of the
investigation. CBP became involved only briefly by virtue of
defendant’s decision to fly through Miami on the way back from Turks
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& Caicos, and CBP’s involvement was limited to conducting its border
search procedures during this limited window of time. In his
opposition, defendant identifies the government’s strategic choices
and guiding theories of culpability as the primary purported bases of
relevance for introducing evidence about the government’s
investigation. (See generally ECF 417.) But details about CBP’s
activities, while relevant to the Court’s earlier rulings on the
border search, are irrelevant to these broader issues or to any fact
of consequence at trial. Fed. R. Evid. 401, 402.
Nor is information relating to law enforcement’s tactical
preparation and safety precautions for the premises search warrants
on November 5, 2020 relevant to issues pertaining to the government’s
broader investigatory strategy. Defendant takes issue with the
government’s potential need to introduce rebuttal evidence regarding
law enforcement’s belief about defendant’s and several codefendants’
association with Armenian Power and possession of numerous firearms.
(ECF 417 at 7-8.) Defendant challenges the factual foundation for
this information, which the government has explained in multiple
filings in this case. (See ECF 188 at 4-6; ECF 207 at 4-6; ECF 310
at 13-15). Defendant also posits that the government would be
seeking to obtain convictions based on his and his codefendants’
“shared Armenian ethnicity.” (Id. at 7.) The government intends to
do nothing of the kind, but defendant misses the larger point. The
government does not intend to introduce any evidence regarding
Armenian Power or any of the defendants’ possession or suspected
possession of firearms. But it would be required to do so if
defendant opens the door to issues of law enforcement safety and
tactics by injecting irrelevant issues regarding “military-style
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raids” into trial. See, e.g., United States v. Wales, 977 F.2d 1323,
1326 (9th Cir. 1992) (evidence about false driver’s licenses
admissible where defense “opened the door” on cross-examination);
United States v. Segall, 833 F.2d 144, 148 (9th Cir. 1987) (evidence
about bank account funds admissible where defense “opened the door”
and created “false impression” on cross-examination).
Balanced against the lack of any probative value of evidence or
arguments regarding the purported unlawfulness of the searches in
this case, defendant’s retreaded attacks on this basis would pose a
substantial danger of unfair prejudice, confusing the issues,
misleading the jury, undue delay, and wasting time. Fed. R. Evid.
403. The Court already has considered and ruled upon the factual
contentions pertaining directly to the suppression motions in this
case, as is required. Fed. R. Evid. 104(a). Allowing the jury to
hear evidence relating to admissibility issues but untethered to any
credible information calling into question the actual integrity of
the evidence obtained from the searches would only mislead and
confuse the jury. It also would unnecessarily delay trial and waste
time by requiring the government to put in rebuttal evidence
otherwise not relevant to issues of guilt.
II.
DEFENDANT SHOULD BE PRECLUDED FROM OFFERING EVIDENCE OR ARGUMENT
AT TRIAL REGARDING ALLEGATIONS OF DUE PROCESS VIOLATIONS
In his opposition, and consistent with his approach of casting
baseless accusations against the government throughout this case,
defendant insinuates that he may seek to raise, directly or
indirectly, improper arguments at trial premised on vindictive or
discriminatory prosecution or outrageous government conduct. The
government’s instant motion initially focused on the impropriety of
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defense arguments at trial regarding the unlawfulness or
unconstitutionality of the searches in this case. However, in light
of defendant’s previous unfounded claims of prosecutorial misconduct,
which the Court has rejected, and the tenor of his current filing,
defendant once again puts at issue the impropriety of potential
defense arguments bearing on purported due process violations at
trial.
Defendant contends that, “[e]arly in the investigation, the
government decided that defendant Richard Ayvazyan and a group of
other people of Armenian descent were involved in a single conspiracy
and/or scheme to secure” fraudulent COVID-19 disaster relief loans.
(ECF 417 at 1-2.) Defendant describes the government’s development
of evidence against him as a “pre-existing conclusion,” “find[ing]
evidence that would support the government’s unfounded suspicions,”
“find[ing] evidence to support its preferred theory,” and seeking to
“ramrod through a conviction rather than to discover the truth.”1
(Id. at 2, 6, 7.)
1 Defendant claims, as he has previously, that the government
“failed to follow leads that other people used the identities alleged
to have applied for PPP and EIDL loans -- leads that were apparent in
the government’s own evidence.” (ECF 417 at 2.) Defendant provides
one example of “an October 13, 2020 purchase at Lamps Plus in
California” reflected in a Chase bank statement for an account in the
name of “Turing Info Solutions, Inc.” controlled by “Iuliia Zhadko.”
(See Exhibit 3 (Under Seal) to the Declaration of Brian Faerstein,
ECF 219-1, at DOJ_PROD_0000099291.) Defendant claims that he could
not have been using the “Zhadko” alias because he was in Turks &
Caicos at that time. The evidence demonstrates just the opposite.
Not only does defendant disregard the ubiquity and ease of online or
over-the-phone purchases, but also the Chase bank account statement
in question reflects that the purchase was made through a “Card
Purchase,” specifying “Card 3537.” (Id.) When defendant was stopped
by CBP in Miami, officers seized, among other things, a physical
Chase credit card in the name of “Iuliia Zhadko, Turing Info
Solutions,” with an account number ending in -3537. (See Exhibit 3
(Under Seal) to the Declaration of Scott Paetty, ECF 152-1, at
DOJ_PROD_0000023739.)
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Defendant’s allegations echo, in type if not in degree, his
numerous baseless accusations about government misconduct throughout
this case. For instance, in defendant’s filings seeking to dismiss
the case for prosecutorial misconduct, defendant made the following
unfounded allegations:
• “[T]he government assumed that [defendant Ayvazyan] too
must be culpable. But there was a hole in that
assumption: Ayvazyan was not involved in Zhadko’s
allegedly fraudulent application. In an effort to fill
that hole, the government began a pattern of misconduct
that has plagued this case,” (ECF 289 at 1);
• “[T]he government attempted to amplify the misimpression
it had created that Ayvazyan was some sort of ‘ring
leader’ instead of someone who merely received funds from
an array of friends and associates including several
people who had allegedly submitted fraudulent PPP loan
applications,” (id. at 3);
• “While shocking the universal sense of justice is a high
standard, the government’s determination to trample the
civil liberties while cloaking itself in ‘terrorism’ and
‘national security’ is so outrageous as to merit
dismissal, particularly when combined with the consequent
deletion of evidence and pattern of misconduct,” (id. at
19);
• “As a result of its erroneous conclusion based on
unlawfully seized evidence, the government became
convinced that Ayvazyan was somehow the leader of what
the government continuously characterizes as a ‘fraud
ring.’ The government therefore acted on the unlawfully
seized evidence to turn Ayvazyan’s life upside down,”
(id. at 21);
• “The government has committed flagrant misconduct in
violation of ethical rules, the Fourth Amendment, assault
and battery laws, destruction of property laws, the
Federal Rules of Criminal Procedure and the Court’s
discovery order. As a result Ayvazyan has suffered...,”
(id. at 23); and
• “The government’s misconduct began with the unlawful
interrogation of Ayvazyan at Miami International Airport
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on October 19, 2020 and has continued into new misconduct
as recently as the last two weeks.” (ECF 329 at 1.)
The Court rejected defendant’s allegations of prosecutorial
misconduct and should not allow defendant to make such claims to the
jury.
To the extent defendant intends to argue at trial that he was
the victim of vindicative or discriminatory prosecution or outrageous
government conduct (all of which are wholly without merit), he should
be precluded from doing so. See, e.g., United States v. Sotelo-
Murillo, 887 F.2d 176, 182 (9th Cir. 1989) (“Whether the government’s
conduct is sufficiently outrageous to violate due process is a
question of law reviewed de novo. It is not an issue for the jury
and Sotelo was not entitled to a jury instruction on the issue.”)
(internal citation omitted); United States v. Wylie, 625 F.2d 1371,
1378 (9th Cir. 1980) (“The question of the outrageous involvement of
government agents is a question of law for the court.”); United
States v. Berrigan, 482 F.2d 171, 174-75 (3d Cir. 1973) (“question of
discriminatory prosecution relates not to the guilt or innocence of
appellants, but rather addresses itself to a constitutional defect in
the institution of the prosecution”); see also Yagman, 2007 WL
9724391, at *4 (“Defendant cannot cloak vindicative prosecution
arguments under the guise of a defense that he has been framed.”).
III. DEFENDANT SHOULD BE PRECLUDED FROM OFFERING EVIDENCE OR ARGUMENT
AT TRIAL REGARDING PURPORTED “TAINT” OF GOVERNMENT EVIDENCE
Defendant raises another argument in his opposition not
addressed initially in the government’s motion in limine but that
warrants a response. Specifically, defendant contends numerous times
that he should be entitled to “probe the government’s investigation”
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to prevent the government from “further benefit[ing] from the taint
that has infected the government’s indictment and evidence.” (ECF
417 at 1; see also id. at 2 (“government has relied on tainted
evidence to form and repeatedly confirm its flawed central theory of
the case”); id. at 9 (“the indictments in this case are already
tainted”); id. (“cut[ting] off questioning regarding its
investigation tactics gives the government the opportunity to
directly and indirectly use tainted evidence with abandon”).
The Court has ordered that a Kastigar hearing be held post-trial
to determine the extent, if any, to which the government has used
purportedly tainted evidence in investigating and prosecuting this
case. That hearing, not trial, will be the appropriate time and
place for defendant to explore his theories about allegedly tainted
evidence. These legal issues are irrelevant to the jury’s
consideration of guilt and pose a substantial danger of confusing the
issues and misleading the jury, and defendant should be precluded
from raising them at trial. Fed. R. Evid. 401-403.
IV.
CONCLUSION
For the foregoing reasons, and the reasons set forth in its
motion (ECF 390), the government respectfully requests that this
Court exclude defense evidence and arguments that the border stop on
October 19-20, 2020 in Miami and the residence searches conducted on
November 5, 2020 were unlawful or that the manner in which law
enforcement agents engaged in these searches violated defendants’
constitutional rights. The government further requests that this
Court exclude defense evidence and arguments regarding alleged due
process violations or allegedly “tainted” evidence.
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