REPLY in support of NOTICE OF MOTION AND MOTION to Suppress or Exclude Jail Calls… — USA v. Ayvazyan et al (Dkt. 442)

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Marietta Terabelian's Reply to Government's Opposition to Her Motion to Suppress or Exclude Jail Calls, Document 442, filed 06/07/21 in Case No. 2:20-cr-579-SVW before Hon. Stephen V. Wilson in the United States District Court for the Central District of California, with a Hearing Date of June 14, 2021 and a Trial Date of June 15, 2021. The reply argues that Terabelian made repeated requests for an attorney during her October 19, 2020 encounter with Customs and Border Protection at Miami International Airport, and that her jail calls are inadmissible under Kastigar, McNabb-Mallory, Doyle/Kallin and Federal Rule of Evidence 403. It responds to the government's contention that it already had independent evidence about the Viktoria Kauichko identity. The middle of the brief is elided; it is dated June 7, 2021 with /s/ Ryan V. Fraser.

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John L. Littrell (SBN 221601) 
jlittrell@bklwlaw.com  
Ryan V. Fraser (SBN 272196) 
rfraser@bklwlaw.com  
BIENERT KATZMAN LITTRELL WILLIAMS LLP 
601 W. 5th Street, Suite 720 
Los Angeles, CA 90071 
Telephone: (213) 528-3400 
Facsimile: (949) 369-3701 
 
Attorneys for Defendant MARIETTA TERABELIAN 
 
 
 
 
IN THE UNITED STATES DISTRICT COURT 
FOR THE CENTRAL DISTRICT OF CALIFORNIA  
 
    
UNITED STATES OF AMERICA,  
Plaintiff, 
 
 
v. 
 
 
RICHARD AYVAZYAN, MARIETTA 
TERABELIAN, ARTUR AYVAZYAN, 
TAMARA DADYAN, MANUK 
GRIGORYAN, ARMAN 
HAYRAPETYAN, EDVARD 
PARONYAN, and VAHE DADYAN, 
 
 
Defendants. 
Case No.  2:20-cr-579-SVW 
 
Hon. Stephen V. Wilson   
 
MARIETTA TERABELIAN’S 
REPLY TO GOVERNMENT’S 
OPPOSITION TO HER  
MOTION TO SUPPRESS OR 
EXCLUDE JAIL CALLS 
 
Hearing Date: June 14, 2021 
 
Trial Date: June 15, 2021  
 
 
 
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REPLY MEMORANDUM OF POINTS AND AUTHORITIES 
I. 
Introduction 
Marietta Terabelian made repeated requests for access to an attorney when she was 
being investigated and arrested by Customs and Border Protection (“CBP”) at Miami 
International Airport on Monday afternoon, evening, and night on October 19, 2020. 
CBP ignored or refused them all and arrested her in part based on evidence they obtained 
by coercing her cellphone passcode in violation of the Fifth Amendment. Next, violating 
McNabb-Mallory and Federal Rule of Criminal Procedure 5(a)(1)(A)’s prompt-
presentment requirement, the government held Terabelian in jail until Wednesday 
afternoon. As she waited, she reached out by phone for help securing representation by 
counsel in calls in which she also made ambiguous statements that the government now 
seeks to admit to prove that she is guilty.  
The Court should not allow the government to perfect the denial of so many of 
Terabelian’s rights by admitting these calls at trial. Kastigar, McNabb-Mallory, 
Doyle/Kallin, and Federal Rule of Evidence 403 all call for suppression or exclusion. The 
government’s brief opposing her motion fails to show otherwise. 
II. 
Reply arguments 
A. Because the government arrested Terabelian in part based on the contents 
of her cellphone, her jail calls are inadmissible under Kastigar. 
The government contends Kastigar v. United States, 406 U.S. 441 (1972), does 
not preclude using Terbelian’s jail calls at trial because, before coercing Terabelian’s 
cellphone passcode, it already knew the Viktoria Kauichko identity was involved in the 
apparent scheme under investigation, see Opp. Br. 7 (“the government had developed 
substantial evidence about the use of the fake identity “‘Viktoria Kauichko’”), and 
Terabelian was already suspected of participating. Id. at 8. The Kauichko payment card 
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found in Terabelian’s possession at the airport, created “more than sufficient independent 
probable cause” to arrest Terabelian in Miami, the government says.1 Id.  
The government is mistakenly equating the Kastigar burden with a Fourth 
Amendment fruit-of-the-poisonous-tree analysis. See Brief in Support of Ayvazyan and 
Terabelian’s Joint Motion for Kastigar Hr’g, dkt. 338, at 8–17 (brief’s page numbering) 
(pp. 15–24 of 25 by the CM/ECF ribbon’s page numbering); e.g., Kastigar, 406 U.S. at 
453 (barring “any information directly or indirectly derived from” evidence obtained 
through coercion in violation of the Fifth Amendment), 460 (“heavy burden” on the 
government), 461–62 (requiring the government to prove that all its evidence was 
derived “from legitimate independent sources” that must be “wholly independent” of 
the coercion and coerced evidence). Under Kastigar, “information derived from 
compelled testimony may not [even] be used in . . . ‘interpreting evidence [or] 
otherwise generally [in] planning trial strategy.’”  United States v. Danielson, 325 F.3d 
1054, 1072 (9th Cir. 2003), as amended (May 19, 2003) (Sixth Amendment violation, 
but Ninth Circuit explicitly followed Kastigar framework) (quoting United States v. 
Crowson, 828 F.2d 1427, 1430 (9th Cir. 1987)). 
The government fails to meet this burden with regard to the jail calls because it 
took the action of arresting Terabelian by relying on evidence from her cellphone. After 
 
1 The government’s brief states that Terabelian did not move to suppress the 
Kauichko card found in her possession. Terabelian disagrees. Terabelian previously 
joined the motion filed by Richard Ayvazyan to suppress evidence from the Miami 
International Airport encounter under the Fourth and Fifth Amendments, dkt. 153, 
which the Court acknowledged, dkt. 296 at 3 n.2, but the Court construed Terabelian 
not to have moved to suppress physical evidence from her wallet. Id. at 17 n.14, 19 
n.16.  
To any extent necessary to complete her request and the record, Terabelian 
renews her joinder and moves, pursuant to the Fourth and Fifth Amendments, to 
suppress all physical evidence obtained from her at Miami International Airport, based 
on CM/ECF document numbers 130, 135, 136, 153, 208, 209, and all supporting 
declarations and exhibits thereto. 
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all, it is clear that FBI SA Palmerton and the CBP officers involved in investigating and 
arresting Terabelian at Miami International Airport relied significantly on the evidence 
from Terabelian’s cellphone in justifying her arrest. See Customs and Border Protection 
(“CBP”) Report by Officer Theodora Brewster (“Brewster Report), Ex. D (under seal) at 
p. 3 of 4 to Fraser Decl. in Support of Mot. to Suppress, dkt. 136 (“Information revealed 
during the . . . electronic media inspection confirmed that [Terabelian] was taking on the 
identity of ‘Viktoria Kauichko’ as discovered on the Credit Card in her wallet. This was 
evidence via messages where the subject was referred to as ‘Viktoia Kauichko.’”). That 
is why FBI SA Palmerton made a point of noting it in his Statement of Facts Constituting 
the Offense, filed on October 20, 2020, in support of the Complaint. Dkt. 1 at 17–18 of 
19 (CM/ECF pagination) (“CBP also conducted a manual search of TERABELIAN’s 
cellphone for digital contraband and discovered text messages in which TERABELIAN 
appeared to be using the identity of ‘Viktoria Kauichko’ to communicate with others.”). 
In CBP Officer Theodora Brewster’s report, meanwhile, she noted that Terabelian stated 
during her interrogation that Ayvazyan had put the Kauichko card in her belongings and 
that Terabelian had not used the Kauichko card. That is undoubtedly why, from all the 
cellphone evidence reviewed, Officer Brewster noted only her interpretation that the 
cellphone evidence suggested Terabelian apparently using the Kauichko identity. See 
Brewster Report at p. 3 of 4. Thus, it is evident that, to CBP, the cellphone evidence was 
important to interpret the payment card and link Terabelian with other Kauichko 
evidence.  
Kastigar and its progeny forbid the government from using the coerced cellphone 
evidence in this way. See, e.g., Danielson, 325 F.3d at 1072 (barring the use of evidence 
obtained through a Fifth Amendment violation even in “interpreting [other] evidence”). 
Here, because Terabelian’s coerced cellphone evidence was a substantial contributing 
factor motivating her arrest, her jail calls are inadmissible under Kastigar. 
 
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B. The jail calls should be suppressed under the McNabb-Mallory rule 
because they occurred during an unreasonable presentment delay of 
greater than six hours. 
Opposing suppression under McNabb-Mallory, the government claims that (1) the 
rule does not apply because the calls at issue were not elicited by interrogation; 
(2) Terabelian was not arrested until 3:00 a.m., so the calls occurred within the six-hour 
safe harbor of § 3501(c); and (3) the presentment delay was reasonable. In each respect, 
the government is incorrect. 
1. Because Terabelian was interrogated, 18 U.S.C. § 3501(d) does not 
insulate her jail calls from suppression; moreover, interrogation need 
not immediately precede statements to be suppressed under the 
McNabb-Mallory rule. 
The government asserts that under 18 U.S.C. § 3501(d), there can be no McNabb-
Mallory suppression because no one was interrogating Terabelian during the jail calls. 
Opp. Br. 10. That provision states: “Nothing contained in this section shall bar the 
admission in evidence of any confession made or given voluntarily by any person to any 
other person without interrogation by anyone, or at any time at which the person who 
made or gave such confession was not under arrest or other detention.” § 3501(d).  
First, even assuming for the sake of argument that § 3501(d) did limit the McNabb-
Mallory rule, which it does not, for the reasons explained below, that would not save 
Terabelian’s jail calls from suppression, because by its terms, § 3501(d) only carves out 
“confession[s] made or given voluntarily . . . without interrogation by anyone.” 
Terabelian was interrogated—at great length. See Terabelian Decl., dkt. 139.  Indeed, the 
government subjected her to detention, arrest, and interrogation at Miami International 
Airport that lasted several hours, extending until after regular court hours on October 19, 
2020. Ayvazyan and Terabelian’s flight arrived approximately 3:30 or 3:00 p.m., see 
Order Re Motions to Suppress, dkt. 296 at 2 (“around 3:30 p.m.”); Richard Ayvazyan 
Decl. ¶ 3 (“approximately 3:00 p.m.”), dkt. 134.; yet her interrogation, which began that 
afternoon, see dkt. 296 at 16; Ayvazyan Decl. ¶¶ 15–19 , continued until almost 11:00 
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p.m. See dkt. 136 at 11 (brief’s page numbering), 15 of 20 (CM/ECF page numbering). 
Meanwhile, the business hours of the local United States District Court were from 8:30 
a.m. to 5:00 p.m. U.S. Dist. Ct., S.D. Fla. Website, https://www.flsd.uscourts.gov/court-
hours-holidays (last visited June 6, 2021). Because Terabelian was interrogated, 
§ 3501(d) would not insulate her jail calls from suppression even if § 3501(d) did limit 
the McNabb-Mallory rule. 
But, second, § 3501(d) does not place limitations on McNabb-Mallory claims. See 
Corley v. United States, 556 U.S. 303, 313–14 (2009). In Corley, which directly 
addressed the impact of the entire § 3501 on McNabb-Mallory, the Supreme Court sided 
with the petitioner’s position that only subsection (c) affected McNabb-Mallory. See id. 
(setting forth Corley’s argument that “§ 3501 touches [on McNabb-Mallory] only in 
subsection (c)” and deciding that “Corley has the better argument”). 
Consequently, the pre-Corley out-of-circuit cases the government offers as support 
for the proposition that interrogation must have immediately preceded the confession are 
unavailing. See Opp. Br. 10–11 (citing United States v. Colon, 835 F.3d 27 (2d Cir. 
1987), United States v. Fullwood, 86 F.3d 27, (2d Cir. 1996), and United States v. 
Lambros, 564 F.2d 26 (8th Cir. 1977)). Even before Corley, the Second Circuit did not 
support the government’s position uniformly. See United States v. Perez, 733 F.2d 1026, 
1031 (2d Cir. 1984) (deeming it “clear” under § 3501(c) that “if a defendant confesses 
more than six hours after the time of arrest and has not yet been arraigned, the delay in 
and of itself may justify suppression” unless the delay was reasonable (emphasis added)). 
More importantly, the Ninth Circuit has emphasized repeatedly that the McNabb-
Mallory rule exists not only to avoid secret interrogations and have probable cause 
determined promptly, but also “to insure that a defendant is brought before a judicial 
officer as quickly as possible so that he may be advised of his rights.” United States v. 
Liera, 585 F.3d 1237, 1243 (9th Cir. 2009), quoted in United States v. Torres Pimental, 
755 F.3d 1095, 1104 (9th Cir. 2014). In a felony case such as this, the mandatory judicial 
advisement of rights at the initial appearance includes bail conditions, the right to retain 
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or request the court appoint counsel, the right “not to make a statement, and [to notice 
from the judge] that any statement made may be used against the defendant”; the judge 
also “must allow the defendant reasonable opportunity to consult with counsel.” Fed. R. 
Crim. P. 5(d)(1)(B), (C), (E), (2). Having that information or securing release on bail 
would have prevented Terabelian from making the statements attributed to her in these 
calls. Terabelian was not Mirandized at arrest and so did not receive the admonitions at 
that time, either. Nor did she receive access to counsel even though she requested it 
repeatedly during her post-arrest interrogation.  
Thus, the government’s Miranda violations and unreasonable delay in presentment 
caused the prejudice she would suffer from admitting the call recordings. This very case 
illustrates why limiting the suppression remedy for presentment delay to instances where 
interrogation immediately preceded the statements would undermine a purpose of the 
McNabb-Mallory rule that the Ninth Circuit has repeatedly reinforced. Therefore, 
[t]he rule as it stands today is relatively simple to apply. When a criminal 
defendant brings a suppression motion based on McNabb-Mallory, the 
district court looks to see whether the confession was obtained within six 
hours of arrest. If so, McNabb-Mallory does not bar its admission. (Of 
course, the confession could be inadmissible for other reasons.) If, however, 
the “confession occurred before presentment and beyond six hours, . . . the 
court must decide whether delaying that long was unreasonable or 
unnecessary . . . and if it was, the confession is to be suppressed.” 
United States v. Gowadia, 760 F.3d 989, 993 (9th Cir. 2014) (quoting Corley, 556 U.S. 
at 322); see also United States v. Studley, 783 F.2d 934, 937 n.2 (9th Cir. 1986) (“the 
normal remedy for violation of Rule 5(a) is suppression of evidence obtained during the 
unreasonable delay”); Bayless v. United States, 381 F.2d 67, 70 (9th Cir. 1967) (“All that 
McNabb, and Mallory, decided was that confessions or admissions obtained from a 
prisoner during a period of unnecessary delay could not be used as evidence against him 
at his trial.”). 
Reflecting this, in Torres Pimental, 755 F.3d at 1103–04, the Ninth Circuit 
suppressed statements for unreasonable presentment delay where the defendant 
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requested to give a confession after having invoked the right to counsel when first 
questioned after arrest. See id. at 1099. The government is correct that the opinion refers 
to his second interaction with the agents as interrogation, even though he initiated it and 
even though that is not how the government argued the case to the Ninth Circuit. See 
Appellee’s Br., United States v.  Torres Pimental, 2012 WL 5865617, at, e.g., 15 
(“Nothing Agent Aradanas did was for the purpose of extracting a confession . . . .”). But 
Torres Pimental suppressed for unreasonable presentment delay regardless of 
interrogation. See id. This is evident from its statement of the McNabb-Mallory rule, 
which included no interrogation requirement: “Under the McNabb-Mallory rule, a 
confession is inadmissible if it is ‘given after an unreasonable delay in bringing [an 
arrested person] before a judge.’” Id. at 1099 (quoting Corley, 556 U.S. at 303, 306). And 
it is evident from Torres Pimental explaining its reversal of the denial of the motion to 
suppress by emphasizing that the McNabb-Mallory rule has the purpose of insuring the 
quickest possible judicial advisement of rights. Id. at 1104 (quoting Liera, 585 F.3d at 
1243).  
Therefore, suppression of a statement under McNabb-Mallory does not require that 
interrogation immediately preceded it. Terabelian’s jail calls must be suppressed if the 
occurred during an unreasonable presentment delay, which they did, as explained further 
below. 
2. The calls occurred outside the safe harbor of § 3501(c) because 
Terabelian was arrested more than six hours before the first jail call. 
The government claims that the jail calls—the earlier of which was placed at 8:29 
a.m. on October 20, 2020—occurred within the six-hour safe harbor of § 3501(c). The 
government gets the math to work for this with the conclusory assertion that “Defendant 
was arrested at 3:00 a.m.,” Opp. Br. 13, which comes from an FBI 302 report that two 
FBI agents arrested Terabelian at Miami International Airport “at approximately 3:00 
a.m.” Dkt. 418-2.  
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It should go without saying that the time of an arrest depends on the facts and the 
law, not the conclusory assertions of the officers involved.2 Here, the Court previously 
found—for good reason—that Terabelian was in custody for Miranda purposes under 
Eleventh (as well as Ninth) Circuit law when her cellphone passcode was coerced by 
CBP. See Order, dkt. 296, at 17; dkt. 136 at 11 of 20 (CM/ECF page numbering) 
(discussing custody determination); dkt. 209 at 10–12 of 23 (CM/ECF page numbering) 
(same). The Eleventh Circuit standard for “whether a suspect is in custody turns on 
whether restrictions on the suspect’s freedom of movement are ‘of the degree associated 
with formal arrest.’” United States v. Moya, 74 F.3d 1117, 1119 (11th Cir. 1996) (citation 
omitted); dkt. 296 at 14–15 (citing Moya for this standard). Given that Terabelian was in 
custody for Miranda purposes as of the coercion of the cellphone passcode, she was also 
under arrest then. See id. Objectively assessed, then, she was under arrest long before 
midnight on October 19, 2020. See Brewster Report at p. 4 of 4 (cellphone review was 
complete by approximately 9:00 p.m.). 
Therefore, the jail calls of 8:29 and 8:35 a.m. on October 20, 2020, did not occur 
within six hours of the actual arrest time, which was on October 19. (Terabelian’s motion 
referred to the arrest as having occurred “no later than 1:45 a.m.,” dkt. 393 at 10, because 
the Court’s suppression order referred to “approximately 1:45 a.m.” as the time when the 
defendants were “informed that they were being arrested.” Dkt. 296 at 2. Here, the exact 
time of the arrest is not material because there is no serious argument that it was as late 
as 2:30 a.m. on October 20 so as to fall within the six-hour safe harbor.) This leaves only 
to determine whether the delay in presentment was reasonable. 
 
 
 
2 Many law-enforcement officers are trained to deny suspects are under arrest, in 
a strategem for wider latitude in extracting statements. See Charles D. Weisselberg, 
Mourning Miranda, 96 Cal. L.Rev. 1519, 1542–44 (2008); Charles E. Riley III, 
Finetuning Miranda Policies, FBI Law Enforcement Bull. 23, 24–25 (1985), cited in 
Smith v. Clark, 804 F.3d 983, 986 (9th Cir. 2015) (Fletcher, J., dissenting). 
 
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3. The presentment delay was not reasonable. 
Because the statements in question were made more than six hours after arrest and 
before presentment, under Corley, the Court must next decide whether, “considering the 
means of transportation and the distance to be traveled to the nearest available 
magistrate,” delaying from the night of Monday, October 19, 2020, until the following 
Wednesday afternoon with no intervening holiday was reasonable. United States v. 
Valenzuela-Espinoza, 697 F.3d 742, 749 (9th Cir. 2012).  
The delay in Terabelian’s case was unreasonable. To counter this, the government 
submits an exhibit from the U.S. Attorney’s Office in the Southern District of Florida 
showing that the Southern District of Floria had planned in advance not to conduct initial 
appearances on October 20, 2020.3 This cannot establish reasonableness, any more than 
a 10:30 a.m. paperwork requirement could in Valenzuela-Espinoza.  
There, a Tucson court policy required that “paperwork for initial appearances” be 
available for the duty magistrate by 10:30 a.m. on the morning of the appearance, absent 
“exceptional circumstances” which were not explained. Id. Inability to meet this 
paperwork requirement did not make the defendant’s presentment delay reasonable. Id. 
at 750. The Ninth Circuit explained various ways that such a policy could be manipulated 
to the detriment of the rights protected by Rule 5 and McNabb-Mallory, concluding that 
“[i]t is not the longstanding principle embodied in McNabb-Mallory that must give way 
to local paperwork needs, but the local paperwork policy that must be tailored to the 
requirements of McNabb-Mallory . . . .” Id. at 751. 
 
Similarly here, the Southern District of Florida’s apparently planned dark day on 
the non-holiday of October 20, 2020, was not reasonable. The District has sixteen 
 
3 Pursuant to Federal Rule of Criminal Procedure 26.2, Terabelian requests 
production of all statements of declarant AUSA Paetty and the out-of-court declarant 
from the Southern District of Florida U.S. Attorney’s Office related to the request for 
exhibit 2, its significance, and the Southern District of Florida court schedule. See 
Paetty Decl. ¶ 3 (explaining he obtained the calendar from the Southern District of 
Florida U.S. Attorney’s Office). 
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magistrate 
judges, 
U.S. 
Dist. 
Ct., 
S.D. 
Fla. 
Website, 
https://www.flsd.uscourts.gov/magistrate-judges (last visited June 7, 2021), four federal 
courthouses in Miami, and another courthouse only approximately 28 miles away in Fort 
Lauderdale. Id. at https://www.flsd.uscourts.gov/miami-courthouses. There was no 
disaster or inclement weather involved, and, given the advance planning not to conduct 
initial appearances on October 20, in the words of Valenzuela-Espinoza, the Southern 
District of Florida had the time and obligation to “tailor” its schedule to the requirements 
of McNabb-Mallory to conduct Terabelian’s initial appearance. Indeed, none of the delay 
reasons acknowledged by the caselaw in the government brief at page 15 comes close to 
a magistrate planning a day off in advance and failing to get coverage from any of fifteen 
colleagues. The more than thirty-six-hour delay in presenting Terabelian to a magistrate 
was unreasonable.  
C. Alternatively, the calls should be excluded under Federal Rule of 
Evidence 403 because of unfair prejudice and the fact that admitting the 
calls would necessitate a time-consuming mini-trial over the ambiguous 
phrases the government seeks to use. 
The government argues the jail calls should be admitted over Terabelian’s Rule 
403 objections because of the purportedly high probative value of the reference to getting 
“caught” and the requests to “clean the house.” The government also says ambiguity goes 
to weight, not admissibility. Both premises are wrong.  
First, the ambiguity does go to admissibility because it creates the need for 
extrinsic evidence. Given the extremely damning interpretation advocated by the 
government—which is all that Terabelian “acknowledge[d] in her motion,” Opp. Br. 
18—a mini-trial with multiple defense witnesses who can shed light on the intended 
meaning of these phrases would be the only way to prevent extreme and unfair prejudice 
to Terabelian from the possibility of the jury adopting the government’s interpretation 
without considering other evidence of the intended meaning. See Fed. R. Evid. 403 
(dangers counting against admission include “unfair prejudice, confusing the issues, 
misleading the jury, undue delay, [and] wasting time”). These witnesses would be in 
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11 
MARIETTA TERABELIAN’S REPLY TO THE GOVERNMENT’S OPPOSITION  
TO HER MOTION TO SUPPRESS OR EXCLUDE JAIL CALLS 
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addition to the government witnesses already required to lay the foundation that 
Terabelian made the calls as a precondition to relevance and to establish the proper 
translation from Armenian into English.  
Second, the ambiguity does reduce the remarks’ probative value. Because the 
remarks are not clearly an admission or a request to conceal or destroy evidence, the jury 
has no way to draw the inference of consequence—Terabelian’s actual subjective 
intent—without significant extrinsic evidence. If the remarks were unambiguous, that 
would not be so. Further, although the government suggests that probative value is 
discounted for other available evidence only when the adverse party offers to stipulate to 
an element, that is not the law. See, e.g., United States v. Sine, 493 F.3d 1021, 1035 (9th 
Cir. 2007) (admitting the evidence that led to judicial findings of fact counted against 
admitting the judicial opinion itself). Here, the government’s purported evidence of 
Terabelian putting cash in the bushes at her home as the search warrant was about to be 
executed accomplishes a substantially similar evidentiary purpose to the jail calls. See 
Gov.’s Opp. to Mot. to Suppress, dkt. 188, at 1 (brief page numbering) (government’s 
description of event). 
To the extent the Court is left with a balance between the risk of mini-trial, on the 
one hand, and the calls’ discounted probative value, on the other, the additional unfair 
prejudice from exposing to the jury Terabelian’s detention in jail tips the decision against 
admitting the jail calls. Of course Terabelian could not be made to stand trial in jail 
clothes because of the unfair prejudice that would create, even though courts can give the 
same instruction to the jury to disregard the jail clothing. See Estelle v. Williams, 425 
U.S. 501, 503–04 (1976) (“To implement the presumption [of innocence], courts must 
be alert to factors that may undermine the fairness of the fact-finding process”; therefore, 
“[c]ourts have, with few exceptions, determined that an accused should not be compelled 
to go to trial in prison or jail clothing because of the possible impairment of the 
presumption so basic to the adversary system” (footnote omitted)). Here, similarly, 
admitting calls that show she was in jail shortly after the Miami airport encounter with 
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MARIETTA TERABELIAN’S REPLY TO THE GOVERNMENT’S OPPOSITION  
TO HER MOTION TO SUPPRESS OR EXCLUDE JAIL CALLS 
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CBP leads to a strong inference of guilt on an impermissible basis, which undermines the 
presumption of innocence in a way that a limiting instruction cannot cure because of 
human psychology. 
In addition, with Terabelan’s requests for assistance finding an attorney redacted, 
as the government proposes to address the Doyle and Kallin error the calls would 
otherwise entail,4 see Opp. Br. 20, the edited calls will give the jury the false and unfairly 
prejudicial impression that Terabelian was calling only or almost only to convey the 
“clean the house” request. It is worth noting that the government created this problem by 
repeatedly denying Terabelian’s requests for access to counsel and delaying her 
presentment to a magistrate judge.  
For all these reasons, the calls’ 403 dangers substantially outweigh their probative 
value and they should be excluded. 
D. Doyle and redactions 
The government’s brief offers no counterargument against Terabelian’s position 
that the calls as originally proposed would result in Doyle / Kallin error. Gov. Br. 20. The 
government posits that the error can be corrected with redactions, but the redactions 
would only amplify the unfair prejudice, as explained in the previous subsection. 
\\\ 
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4 See Doyle v. Ohio, 426 U.S. 610, 619 (1976); United States v. Kallin, 50 F.3d 
689, 693 (9th Cir. 1995), as amended (Mar. 17, 1995) (Doyle extends to comments on a 
defendant’s decision to retain counsel). 
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MARIETTA TERABELIAN’S REPLY TO THE GOVERNMENT’S OPPOSITION  
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III. 
Conclusion  
The Court should suppress or exclude evidence of Terabelian’s jail calls.  
 
Dated:   June 7, 2021 
 
 
 
Respectfully submitted, 
 
BIENERT KATZMAN LITTRELL 
WILLIAMS LLP 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
/s/ Ryan V. Fraser  
 
 
 
 
 
 
 
 
 
John L. Littrell  
Ryan V. Fraser 
 
Counsel for Defendant Marietta 
Terabelian 
 
 
 
 
 
 
 
 
 
 
 
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MARIETTA TERABELIAN’S REPLY TO THE GOVERNMENT’S OPPOSITION  
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CERTIFICATE OF SERVICE 
 
I declare that I am a citizen of the United States and I am a resident and employed 
in Los Angeles, California; that my business address is 601 W. 5th Street, Suite 720, Los 
Angeles, CA 90071; that I am over the age of 18 and not a party to the above-entitled 
action.  
 
I am admitted to practice before the United States District Court for the Central 
District of California. I caused service of the foregoing document entitled 
“MARIETTA TERABELIAN’S REPLY TO GOVERNMENT’S OPPOSITION TO 
HER MOTION TO SUPPRESS OR EXCLUDE JAIL CALLS” on all interested parties 
as follows:  
 
[X] 
BY ELECTRONIC TRANSMISSION: by electronically filing the foregoing 
with the Clerk of the District Court using its CM/ECF System pursuant to the 
Electronic Case Filing provision of the United States District Court General Order 
and the E-Government Act of 2002, which electronically notifies all parties in this 
case.  
 
I declare under penalty of perjury under the laws of the United States of America 
that the foregoing is true and correct. Executed on June 7, 2021 at Los Angeles, 
California.  
 
/s/ Ryan Fraser 
 
Case 2:20-cr-00579-SVW     Document 442     Filed 06/07/21     Page 15 of 15   Page ID
#:5057

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