Court filing
TRIAL MEMORANDUM filed by Plaintiff USA as to Defendant Richard Ayvazyan, Marietta… — USA v. Ayvazyan et al (Dkt. 475)
Record facts
| Court | U.S. District Court for the Central District of California |
|---|---|
| Filed | 2021-06-09 |
U.S. District Court for the Central District of California · No. 2:20-cr-00579-SVW · Doc. 475 · 2021-06-09 · Docket on CourtListener
Summary
The government's trial memorandum 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 9, 2021 as Doc. 475. It states that trial is set for June 15, 2021 and that the government expects its case-in-chief to take eight to ten days; a footnote reports that Manuk Grigoryan entered guilty pleas on June 7, 2021 and that Edvard Paronyan filed a plea agreement. The government says its evidence will show PPP and EIDL applications supported by stolen or fictitious identities, fake payroll reports and false tax forms, with proceeds used to buy at least three residential properties. The memorandum also covers the charges, pretrial motions and evidentiary issues such as co-conspirator statements, summary exhibits and reciprocal discovery. The 44-page filing carries the /s/ signature of Catherine S. Ahn.
Summary drafted by a model from the document's text below and checked by script against that text before publication. It is a navigation aid, not a reading of what the document proves. Where AI is used
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TRACY L. WILKISON
Acting United States Attorney
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) 302-0539
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,
No. CR 20-579(A)-SVW
GOVERNMENT’S TRIAL MEMORANDUM
Trial Date:
June 15, 2021
Location:
Courtroom of the
Hon. Stephen V.
Wilson
Case 2:20-cr-00579-SVW Document 475 Filed 06/09/21 Page 1 of 44 Page ID
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aka “Mike Grigoryan,” and
“Anton Kudiumov,”
ARMAN HAYRAPETYAN,
EDVARD PARONYAN,
aka “Edvard Paronian” and
“Edward Paronyan,” and
VAHE DADYAN,
Defendants.
Plaintiff the 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 trial
memorandum.
The government respectfully requests leave of the Court to
supplement or modify this memorandum as may be appropriate.
Dated: June 9, 2021
Respectfully submitted,
TRACY L. WILKISON
Acting United States Attorney
SCOTT M. GARRINGER
Assistant United States Attorney
Chief, Criminal Division
/s/
CATHERINE S. AHN
SCOTT PAETTY
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
TABLE OF CONTENTS...................................................1
TABLE OF AUTHORITIES................................................1
MEMORANDUM OF POINTS AND AUTHORITIES................................1
I.
STATUS OF THE CASE.............................................1
II.
STATEMENT OF FACTS.............................................1
III. STATEMENT OF CHARGES...........................................6
A.
Conspiracy................................................7
1.
Conspiracy to Commit Bank Fraud and/or Wire Fraud....7
2.
Conspiracy to Engage in Money Laundering.............7
B.
Wire Fraud................................................8
C.
Bank Fraud................................................8
1.
Bank Fraud...........................................8
2.
Attempted Bank Fraud.................................9
D.
Aggravated Identity Theft................................10
E.
Money Laundering.........................................10
IV.
TRIAL STATUS / PRETRIAL MOTIONS / PRETRIAL FILINGS............11
A.
Trial Status.............................................11
B.
Pretrial Motions.........................................11
1.
Motions to Suppress.................................11
2.
Motions to Dismiss..................................12
C.
Motions in Limine........................................13
D.
Stipulations.............................................15
E.
Trial Indictment.........................................15
F.
Other Pretrial Filings...................................16
V.
TRIAL EVIDENCE................................................17
VI.
WITNESSES.....................................................19
VII. LEGAL AND EVIDENTIARY ISSUES..................................20
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A.
Text Messages, Emails, and Call Recordings...............20
1.
Opposing Party Admissions...........................21
2.
Co-Conspirator Statements...........................22
B.
Business Records and Absence of Public Records...........24
1.
Business Records....................................24
2.
Absence of Public Records...........................26
C.
Defendants May Not Introduce Their Own Statements,
Texts, Email Messages, or Call Recordings................28
1.
Defendants may not introduce their own statements
unless a hearsay exception applies..................28
2.
The “rule of completeness” does not allow
defendants to introduce inadmissible statements.....29
D.
Cross-Examination of Defendants and Defense Witnesses....30
1.
Cross-Examination of Defendants.....................30
2.
Cross-Examination of Defense Witnesses..............31
E.
Summary Exhibits.........................................32
F.
Summary Witnesses........................................35
G.
Affirmative Defenses.....................................36
H.
Reciprocal Discovery.....................................37
VIII.
CONCLUSION...............................................37
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TABLE OF AUTHORITIES
CASES
Barsky v. United States,
339 F.2d 180 (9th Cir. 1964)..................................34
Bourjaily v. United States,
483 U.S. 171 (1987)...........................................23
Crawford v. Washington, 541 U.S. 36 (2004).........................23
Diamond Shamrock Corp. v. Lumbermens Mut. Cas. Co.,
466 F.2d 722 (7th Cir. 1972)..................................35
Goldberg v. United States,
789 F.2d 1341 (9th Cir. 1986).................................34
La Porte v. United States,
300 F.2d 878 (9th Cir. 1962)..................................24
McGautha v. California,
402 U.S. 183 (1971)...........................................30
Ohio v. Roberts,
448 U.S. 56 (1980)............................................24
Ohler v. United States,
529 U.S. 753 (2000)...........................................30
U-Haul Int’l v. Lumbermans Mutual Casualty Co.,
576 F.3d 1040 (9th Cir. 2009).................................25
United States v. Aubrey,
800 F.3d 1115 (9th Cir. 2015).................................33
United States v. Baker,
855 F.2d 1353 (8th Cir. 1988).................................24
United States v. Black,
767 F.2d 1334 (9th Cir. 1985).................................31
United States v. Bonallo,
858 F.2d 1427 (9th Cir. 1988).................................25
United States v. Catabran,
836 F.2d 453 (9th Cir. 1988)..................................25
United States v. Cisneros,
No. 217CR00229ACAS1, 2018 WL 3702497
(C.D. Cal. 2018)..............................................30
United States v. Cohen,
631 F.2d 1223 (5th Cir. 1987).................................29
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United States v. Collicott,
92 F.3d 973 (9th Cir. 1996)...............................29, 30
United States v. Crespo de Llano,
838 F.2d 1006 (9th Cir. 1987).................................23
United States v. Crosgrove,
637 F.3d 646 (6th Cir. 2011)..................................30
United States v. Cuozzo,
962 F.2d 945 (9th Cir. 1992)..................................31
United States v. Emmert,
829 F.2d 805 (9th Cir. 1987)..................................29
United States v. Fernandez,
839 F.2d 639 (9th Cir. 1988)..................................22
United States v. Harry,
816 F.3d 1268 (10th Cir. 2016)................................28
United States v. Hegwood,
977 F.2d 492 (9th Cir. 1992)..................................32
United States v. Johnson,
594 F.2d 1253 (9th Cir. 1979).................................33
United States v. Larson,
460 F.3d 1200 (9th Cir. 2006).................................23
United States v. Lemire,
720 F.2d 1327 (D.C. Cir. 1983)............................34, 35
United States v. Mendoza-Prado,
314 F.3d 1099 (9th Cir. 2002).................................32
United States v. Miranda-Uriarte,
649 F.2d 1345 (9th Cir. 1981)............................30, 31
United States v. Norton,
867 F.2d 1354 (11th Cir. 1989)................................24
United States v. Ortega,
203 F.3d 675 (9th Cir. 2000)..............................21, 22
United States v. Pree,
408 F.3d 855 (7th Cir. 2005)..................................34
United States v. Rizk,
660 F.3d 1125 (9th Cir. 2011).............................33, 34
United States v. Safavian,
435 F. Supp. 2d 36 (D.D.C. 2006)..............................22
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United States v. Scales,
594 F.2d 558 (6th Cir. 1979)..............................33, 34
United States v. Scholl,
166 F.3d 964 (9th Cir. 1999)..................................24
United States v. Shirley,
884 F.2d 1130 (9th Cir. 1989).................................35
United States v. Siddiqui,
235 F.3d 1318 (11th Cir. 2000)................................22
United States v. Torres,
794 F.3d 1053 (9th Cir. 2015).................................29
United States v. Vallejos,
742 F.3d 902 (9th Cir. 2014)..............................29, 30
United States v. Zavala-Serra,
853 F.2d 1512 (9th Cir. 1988).................................23
STATUTES
Fed. R. Evid. 104(a)...............................................23
Fed. R. Evid. 106..................................................29
Fed. R. Evid. 403..................................................28
Fed. R. Evid. 404(a)(2)(A).........................................32
Fed. R. Evid. 801(d)(2)....................................22, 23, 28
Fed. R. Evid. 802..................................................28
Fed. R. Evid. 803..............................................passim
Fed. R. Evid. 902..............................................passim
OTHER AUTHORITIES
Federal Rule of Criminal Procedure 12.1............................37
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MEMORANDUM OF POINTS AND AUTHORITIES
I.
STATUS OF THE CASE
The criminal trial of defendants RICHARD AYVAZYAN, a.k.a.
“Richard Avazian,” a.k.a. “Iulia Zhadko” (“R. AYVAZYAN”), MARIETTA
TERABELIAN, a.k.a. “Marietta Abelian,” a.k.a. “Viktoria Kauichko”
(“TERABELIAN”), ARTUR AYVAZYAN, a.k.a. “Arthur Ayvazyan” (“A.
AYVAZYAN”), TAMARA DADYAN (“T. DADYAN”), ARMAN HAYRAPETYAN
(“HAYRAPETYAN”), and VAHE DADYAN (“V. DADYAN”) (collectively,
“defendants”) is scheduled for June 15, 2021 at 8:30 a.m., before the
Honorable Stephen V. Wilson, United States District Judge.1 The
government anticipates that its case-in-chief will require eight to
ten days. Jury trial has not been waived. Defendants are on bond.
II.
STATEMENT OF FACTS
The government has described the facts and details underlying
the charges in this case in its recently-filed motions in limine,
including its motion in limine #2 (ECF 384), as well as in its
responses to defendants’ numerous motions brought throughout the
course of this case. The government provides here a summary of the
facts and evidence it intends to adduce at trial.
As the trial evidence will show, defendants R. AVAYZYAN,
TERABELIAN, A. AYVAZYAN, T. DADYAN, GRIGORYAN, HAYRAPETYAN, PARONYAN,
and V. DADYAN conspired to submit or cause to be submitted fraudulent
loan applications through both the Paycheck Protection Program
1 On June 7, 2021, defendant MANUK GRIGORYAN (“GRIGORYAN”)
entered guilty pleas to two counts in the superseding indictment,
which pleas were accepted by the Court. (ECF 454.) His sentencing
hearing is scheduled for September 13, 2021. On June 9, 2021,
defendant EDVARD PARONYAN (“PARONYAN”) and the government filed a
plea agreement with the Court. Defendant PARONYAN’s change of plea
hearing currently is scheduled for June 11, 2021, at 10:00 a.m. (ECF
472.)
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(“PPP”) and the Economic Injury Disaster Loan program (“EIDL”), and
then launder the fraudulent proceeds of these loans. Congress
authorized the PPP and EIDL programs through the Coronavirus Aid,
Relief, and Economic Security Act of 2020 (“CARES Act”) to make
emergency economic funds available to, among other things, small
businesses to keep their businesses operating and employees on
payroll as a result of the onset of the COVID-19 pandemic. A witness
from the United States Small Business Administration (“SBA”) will
testify about the background and operation of these programs,
including the process for applying and eligibility for obtaining
COVID-19 disaster relief loans.
The trial evidence will show that defendants used, or caused to
be used, stolen or fictitious individual and business information in
submitting materially false and misleading information to the SBA,
banks, and lenders regarding the business’ eligibility for these PPP
and EIDL loans. The evidence will demonstrate that defendants lied
or caused other defendants to lie, among other things, about the
applying business’ monthly payroll expenses, number of employees,
and, in many cases, the names, status, and contact information for
the businesses and their purported representatives. As reflected in
many of the loan applications that will be offered into evidence,2
defendants submitted or caused other defendants to submit fraudulent
information and documentation in support of the loans, including fake
2 The government filed its MIL #4 seeking to admit these and
other business records under the self-authentication provision of
Federal Rule of Evidence 902(11). In addition, to expedite the
presentation of evidence, the government plans on presenting
information through summary chart exhibits and summary witnesses
based on admissible records certified in accordance with Fed. R. of
Evid. 902(11) and 803.
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identification cards, false or fictitious payroll reports purportedly
prepared by the payroll servicing company “Gusto,” false or
fictitious federal employer tax identification numbers (“EINs”), and
fraudulent IRS tax forms. In some cases, defendants submitted
fictious payroll reports and IRS tax forms virtually identical in
substance, reflecting their common use of fraudulent forms across
multiple loan applications. The government will present evidence
through the IRS, California Employment Development Department,
California Department of Motor Vehicles, Department of Homeland
Security, and Gusto, of the falsity of the information in and
documentation supporting these PPP and EIDL loan applications.
In many cases, defendants also used the stolen names and
identifying information of real victims in support of the fraudulent
loan applications, as trial testimony from several of those victims
will reflect. In some cases, defendants submitted or caused to be
submitted applications in the names of those individuals or their
actual businesses without lawful authority; in others, defendants
fraudulently listed actual tax preparers as having prepared
fraudulent IRS tax forms or other fictitious supporting documentation
submitted in support of loan applications.
The trial evidence will further show that, following receipt of
the fraudulent loan proceeds, defendants shared and transferred the
proceeds between them, specifically through bank accounts that they
controlled either in their own names or stolen or synthetic3
3 The government will present testimony at trial explaining that
a “synthetic” identity is an identity created by combining both
stolen and fictitious personally identifiable information, such as
names, dates of birth, and social security, to create new synthetic
identities that could be used to perpetrate the fraud.
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individual and business names. Bank records offered at trial will
reflect defendants’ control and use of these bank accounts to send
and receive fraudulent loan proceeds between each other and to use
those proceeds for expenses prohibited by the PPP and EIDL loan
programs. These expenses included the purchase of at least three
residential properties in Tarzana, Glendale, and Palm Desert, as well
as expenditures on luxury items such as jewelry and high-end
furnishings, as will be reflected in escrow account records and other
records obtained from a number of retailers.
The trial evidence will further show that, in furtherance of the
bank fraud, wire fraud, and money laundering conspiracies summarized
above, defendants used and shared numerous synthetic and false
identities to carry out their fraudulent activities. The government
will offer evidence of defendants’ possession of significant amounts
of synthetic and false identifying information, including information
that was used in submitting the fraudulent loan applications charged
in this case. This evidence will include, among other things,
documents and information obtained pursuant to the execution of
residential search warrants at several locations on November 5, 2020,
including the residence of defendants R. AYVAZYAN and TERABELIAN on
Topeka Drive in Tarzana, the residence of defendants A. AYVAZYAN and
T. DADYAN on Weddington Street in Encino, and an apartment under the
control of defendant GRIGORYAN on Canoga Avenue in Woodland Hills.
During the searches, the government found significant amounts of
fraudulent identification documents including drivers licenses and
Social Security cards, as well as fraudulently obtained credit cards.
The government further intends to present text messages
extracted from a phone (the “T. DADYAN phone”) seized from the
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Weddington Street residence in Encino, pursuant to a federal search
warrant. The T. DADYAN phone contains text messages between T.
DADYAN and R. AVAZYAN, who are identified in the T. DADYAN phone as
“tammy” and “Rich New,” respectively. The “Rich New” contact is
associated with a phone number that, according to certified business
records, is subscribed to “Iulia Zhadko.” The text messages will
establish that defendants R. AYVAZYAN and T. DADYAN agreed to work
together to knowingly prepare and submit PPP and EIDL loan
applications with false and materially misleading representations,
including purported numbers of employees, payroll records, and the
identities of the business applicant and its purported owner. The
text messages will further show how T. DADYAN and R. AYVAZYAN
provided false documentation, exchanged personal identification cards
and information for purported business owners, attempted to convince
PPP lenders and banks to release fraudulent PPP and EIDL proceeds,
and transferred funds to co-conspirators as payment for their role in
the conspiracy.
The government further intends to present images and evidence of
web history searches conducted by defendants who owned or were
identified as the users of four iPhones – the T. DADYAN phone
referenced above, a phone associated with A. AYVAZYAN, a phone
associated with R. AYVAZYAN, and a phone associated with TERABELIAN.
The presence of the same identification cards across multiple
devices, images of checks, and account information associated with
transfers to launder fraudulent proceeds, will further establish
knowledge and participation in the charged conspiracies.
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III. STATEMENT OF CHARGES
Defendants are charged with one count of conspiracy to commit
bank fraud and wire fraud, in violation of 18 U.S.C. § 1349 (Count
1); eleven counts of wire fraud, in violation of 18 U.S.C. § 1343
(Counts 2-124); eight counts of bank fraud, in violation of 18 U.S.C.
§ 1344(2) (Counts 13-205); and one count of conspiracy to engage in
money laundering, in violation of 18 U.S.C. § 1956(h) (Count 26). In
addition, defendant R. AYVAZYAN is charged with two counts of
aggravated identity theft, in violation of 18 U.S.C. § 1028A(a)(1)
(Counts 21-22), and defendants TERABELIAN (Count 22), A. AYVAZYAN
(Count 24), T. DADYAN (Count 24), GRIGORYAN (Count 23), and
HAYRAPETYAN (Count 25) are each charged with one count of aggravated
identity theft. Defendant V. DADYAN also is charged with money
laundering, in violation of 18 U.S.C. § 1956(a)(1)(B)(i) (Count 27).
Finally, two defendants -- defendant R. AYVAZYAN and defendant T.
DADYAN –- are charged with crimes allegedly committed while they were
on pretrial release in this case: Defendant R. AYVAZYAN is charged
with money laundering while on pretrial release, in violation of 18
U.S.C. §§ 1956(a)(1)(B)(i) and 3147 (Counts 28-32), and defendant T.
DADYAN is charged with attempted bank fraud while on pretrial
release, in violation of 18 U.S.C. §§ 1344(2) and 3147 (Count 33).
(See First Superseding Indictment (“FSI”) (ECF 154).)
4 Defendant V. DADYAN is charged only in Counts 7 through 12,
whereas the other defendants are charged in all eleven wire fraud
counts.
5 Defendant V. DADYAN is charged only in Counts 18 through 20,
whereas the other defendants are charged in all eight bank fraud
counts.
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A.
Conspiracy
1.
Conspiracy to Commit Bank Fraud and/or Wire Fraud
In order for a defendant to be found guilty of the charge of
conspiracy to commit bank fraud and/or wire fraud as charged in Count
1 of the FSI, the government must prove each of the following
elements beyond a reasonable doubt:
First, beginning no later than in or around March 2020, and
continuing until at least in or around August 2020, there was an
agreement between two or more persons to commit at least one of the
following crimes: (1) bank fraud, in violation of 18 U.S.C.
§ 1344(2); and (2) wire fraud, in violation of 18 U.S.C. § 1343 –-
with all jurors agreeing as to the particular crime which the
coconspirators agreed to commit; and
Second, the defendant became a member of the conspiracy knowing
of at least one of its objects and intending to help accomplish it.
2.
Conspiracy to Engage in Money Laundering
In order for a defendant to be found guilty of the charge of
conspiracy to engage in money laundering as charged in Count 26 of
the FSI, the government must prove each of the following elements
beyond a reasonable doubt:
First, beginning no later than in or around March 2020 and
continuing until at least in or around October 2020, there was an
agreement between two or more persons to commit at least one of the
following crimes: (1) money laundering, in violation of 18 U.S.C.
§ 1956(a)(1)(B)(i); and (2) engaging in monetary transactions in
property derived from specified unlawful activity, in violation of 18
U.S.C. § 1957 -- with all jurors agreeing as to the particular crime
which the conspirators agreed to commit; and
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Second, the defendant became a member of the conspiracy knowing
of at least one of its objects and intending to help accomplish it.
B.
Wire Fraud
In order for a defendant to be found guilty of wire fraud as
charged in Counts 2-12 of the FSI, the government must prove each of
the following elements beyond a reasonable doubt:
First, the defendant knowingly participated in or devised a
scheme or plan to defraud, or a scheme or plan for obtaining money or
property by means of false or fraudulent pretenses, representations,
or promises. Deceitful statements of half-truths may constitute
false or fraudulent representations;
Second, the statements made or facts omitted as part of the
scheme were material; that is, they had a natural tendency to
influence, or were capable of influencing, a person to part with
money or property;
Third, the defendant acted with the intent to defraud, that is,
the intent to deceive and cheat; and
Fourth, the defendant used, or caused to be used, an interstate
wire communication to carry out or attempt to carry out an essential
part of the scheme.
C.
Bank Fraud
1.
Bank Fraud
In order for a defendant to be found guilty of bank fraud as
charged in Counts 13-20 of the FSI, the government must prove each of
the following elements beyond a reasonable doubt:
First, for each Count, the defendant knowingly carried out a
scheme or plan to obtain money or property from the financial
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institution specified in the Count by making false statements or
promises;
Second, the defendant knew that the statements or promises were
false;
Third, the statements or promises were material; that is, they
had a natural tendency to influence, or were capable of influencing,
a financial institution to part with money or property;
Fourth, the defendant acted with the intent to defraud; and
Fifth, the specified financial institution was federally
insured.
2.
Attempted Bank Fraud
In order for defendant T. DADYAN to be found guilty of attempted
bank fraud as charged in Count 33 of the FSI, the government must
prove each of the following elements beyond a reasonable doubt:
First, the defendant knowingly attempted to execute a scheme to
obtain money or property from Capital One, N.A. by false promises or
statements;
Second, the promises or statements were material; that is, they
had a natural tendency to influence, or were capable of influencing,
a financial institution to part with money or property;
Third, the defendant acted with the intent to defraud;
Fourth, the defendant did something that was a substantial step
toward carrying out the plan or scheme and that strongly corroborated
the defendant’s intent to commit that crime; and
Fifth, Capital One, N.A. was federally insured.
Defendant T. DADYAN is charged with committing the offense
charged in Count 33 while released pursuant to the Bail Reform Act.
If the jury finds beyond a reasonable doubt that defendant T. DADYAN
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committed the charged attempted bank fraud offense, the jury must
also determine whether the government has proven beyond a reasonable
doubt that she committed the offense while on release.
D.
Aggravated Identity Theft
In order for a defendant to be found guilty of aggravated
identity theft as charged in Counts 21-25 of the FSI, the government
must prove each of the following elements beyond a reasonable doubt:
First, the defendant knowingly transferred, possessed, or used
without legal authority a means of identification of another person,
as specified in each Count;
Second, the defendant knew that the means of identification
belonged to a real person; and
Third, the defendant did so during and in relation to a specific
bank fraud or wire fraud offense charged in the indictment, as
specified in each Count.
To act “without legal authority” means to act in a way that is
contrary to law. Thus, the government need not establish that the
means of identification of another person was stolen or used without
that person’s consent or permission.
E.
Money Laundering
In order for a defendant to be found guilty of laundering money
as charged in Counts 27-32 of the FSI, the government must prove each
of the following elements beyond a reasonable doubt:
First, the defendant conducted a financial transaction involving
property that represented the proceeds of conspiracy to commit bank
fraud and wire fraud, in violation of 18 U.S.C. § 1349; wire fraud,
in violation of 18 U.S.C. § 1343; or bank fraud, in violation of 18
U.S.C. § 1344(2);
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Second, the defendant knew that the property represented the
proceeds of some form of unlawful activity; and
Third, the defendant knew that the transaction was designed in
whole or in part to conceal or disguise the nature, location, source,
ownership, and/or control of such proceeds.
Defendant R. AYVAZYAN is charged with committing the offenses
charged in Counts 28-32 while released pursuant to the Bail Reform
Act. If the jury finds beyond a reasonable doubt that defendant R.
AYVAZYAN committed any of the charged money laundering offenses, the
jury must also determine whether the government has proven beyond a
reasonable doubt that he committed the offense while on release.
IV.
TRIAL STATUS / PRETRIAL MOTIONS / PRETRIAL FILINGS
A.
Trial Status
As described above, the trial is set to commence June 15, 2021.
Defendants R. AYVAZYAN and TERABELIAN have requested a three-week
continuance of trial in connection with their most recently filed
motion to dismiss, requesting the Court reconsider its ruling that a
Kastigar hearing be held after, not before, trial. (ECF 381.) The
government opposes defendants’ motion and request for a trial
continuance. (ECF 416.)
B.
Pretrial Motions
1.
Motions to Suppress
Defendants have filed numerous motions to suppress evidence, all
of which the government has opposed, and most of which the Court has
ruled upon. We briefly note the relief sought in each motion and the
Court’s ruling, where applicable:
Defendant R. AYVAZYAN filed two motions to suppress physical and
digital evidence, statements, and the fruits thereof relating to a
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border stop in Miami on October 19-20, 2020. (ECF 130, 135.)
Defendant TERABELIAN similarly moved to suppress digital evidence and
statements relating to the same border stop. (ECF 136.) The Court
granted their motions in part with respect to suppressing certain
digital evidence as the fruit of a Fifth Amendment violation, but
denied the other grounds for relief in their motions. (ECF 296.)
Defendant TERABELIAN also filed a motion to suppress recorded
telephone calls she made from Broward County Jail after her arrest at
the Miami Airport. (ECF 393, 442.) The government opposed the
motion (ECF 418), which remains pending.
Defendants R. AYVAZYAN and TERABELIAN moved to suppress physical
and digital evidence seized during the execution of a federal search
warrant at their residence. (ECF 146.) The Court denied their
motion but ordered the return of certain items. (ECF 296.)
Defendants A. AYVAZYAN and T. DADYAN moved to suppress physical
and digital evidence seized during the execution of a federal search
warrant at their residence. (ECF 149.) The Court denied their
motion but ordered the return of one item. (ECF 297.)
Defendants R. AYVAZYAN, TERABELIAN, A. AYVAZYAN, and T. DADYAN
moved to suppress digital evidence seized during the execution of
federal search warrants at their residences. (ECF 363.) The
government filed an opposition (ECF 391), and the motion remains
pending.
2.
Motions to Dismiss
Defendant R. AYVAZYAN, and in some cases other defendants, have
filed numerous motions to dismiss the indictments in this case in
multiple forms, all of which the government has opposed, and most of
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which the Court has ruled upon. We briefly note the alleged basis
for each motion and the Court’s ruling, where applicable:
Defendant R. AYVAZYAN moved to “enforce the Court’s December 22,
2020 Discovery Order,” seeking an order of dismissal or in the
alternative excluding certain discovery. (ECF 248.) The Court
denied defendant’s motion. (ECF 343.)
Defendant R. AYVAZYAN moved to dismiss on the alleged basis of
prosecutorial misconduct. (ECF 289.) The Court denied defendant’s
motion. (ECF 343.)
Defendants R. AYVAZYAN and TERABELIAN moved for a Kastigar
hearing, seeking an order disqualifying the prosecution team and
dismissing the case. (ECF 338.) Defendants A. AYVAZYAN, T. DADYAN,
GRIGORYAN, PARONYAN, and V. DADYAN joined in the motion. (ECF 346-
48, 350.) The Court ultimately ordered that a Kastigar hearing would
be scheduled for a date to be determined after trial but limited that
hearing to defendants R. AYVAZYAN and TERABELIAN, denying the other
defendant’s joinder requests. (ECF 356.)
Defendants R. AYVAZYAN and TERABELIAN moved once again to
dismiss the case based on Kastigar, seeking in the alternative a
continuance of trial and a pretrial Kastigar hearing. (ECF 381.)
The government filed an opposition (ECF 416), and the motion remains
pending.
C.
Motions in Limine
The government has filed four motions in limine. The first
motion (“MIL #1”) seeks to exclude as a defense any evidence and
arguments concerning alleged victim negligence as well as any
reference to loan guarantees that specific victims in this case,
specifically lenders and loan processors for the PPP, may have been
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provided by the United States Small Business Administration (“SBA”).
(ECF 358.) MIL #2 seeks a ruling from the Court that evidence of
defendants’ possession and creation of stolen or synthetic
identities, which were colocated with stolen or synthetic identities
directly used to obtain fraudulent COVID-19 disaster relief loans,
are inextricably intertwined with the charged offenses. (ECF 384.)
The third motion (“MIL #3”) seeks to exclude evidence and argument
that the border search in Miami or subsequent residence searches in
this case were unlawful or violated defendants’ constitutional
rights. (ECF 390.) One or more defendants have filed oppositions to
each of the government’s first three motions in limine, and each
remains pending as of the date of this filing. In addition, on June
9, 2021, the government filed a fourth motion in limine (“MIL #4”)
seeking to admit certain business records pursuant to the self-
authentication provision of Federal Rule of Evidence 902(11), which
also remains pending.
Defendants R. AYVAZYAN and TERABELIAN filed a motion in limine
seeking to preclude the government’s use of their prior federal bank
fraud conspiracy convictions under Federal Rule of Evidence 404(b)
and to limit the information the government can reveal about these
convictions under Federal Rule of Evidence 609 on cross-examination
of defendants, should they testify. (ECF 340.) The government has
filed an opposition to this motion, and it remains pending as of the
date of this filing.
Defendants R. AYVAZYAN, TERABELIAN, A. AYVAZYAN, T. DADYAN, and
V. DADYAN filed a motion in limine seeking to preclude testimony from
a non-expert summary witness who will describe the flow of PPP and
EIDL funds between and amongst defendants and how those funds were
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used. (ECF 451.) The government intends to file an opposition to
this motion.
D.
Stipulations
To streamline the trial, the government has proposed
stipulations to defendants regarding a number of factual issues the
government believes not to be genuinely in dispute. These issues
include the fact of interstate wire transfers, the federally-insured
status of relevant financial institutions, the authenticity of
business and public records pursuant to certifications obtained from
relevant entities, the authenticity of jail call recordings, and the
authenticity of the forensic data from iPhones seized from certain
defendants. To date, certain of the defendants have not yet agreed
to stipulate to any of these issues, but the government will continue
to seek to meet and confer with defendants on stipulations to any or
all of these or other issues.
E.
Trial Indictment
The government has filed a motion to redact the superseding
indictment for use at trial. (ECF 422.) In an effort to streamline
its case for presentation at trial, the government proposes to
proceed at trial on a redacted version of the superseding indictment
that removes one paragraph specifying the total number of loans (151)
that were part of the charged conspiracies and streamlining the
attempted bank fraud count against defendant T. DADYAN. Defendant R.
AYVAZYAN has opposed the government’s motion and filed a cross-motion
to strike certain allegations regarding the PPP and EIDL programs
from the indictment. (ECF 426.) The government filed a reply in
support of its motion to redact (ECF 450), and the motion remains
pending.
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F.
Other Pretrial Filings
On May 23, 2021, the government provided defendants with a draft
of proposed jury instructions in an effort to meet and confer on a
set of joint proposed jury instructions, with respective objections
noted pursuant to the Court’s Standing Order. Defendants provided
the government with a draft of their proposed jury instructions on
May 26, 2021, and proposed that the parties file separate proposed
jury instructions with the Court. On May 27, 2021, the government
filed its proposed jury and forfeiture instructions. (ECF 373.) The
same day, six of the eight defendants (defendants R. AYVAZYAN,
TERABELIAN, A. AYVAZYAN, T. DADYAN, GRIGORYAN, and V. DADYAN) filed a
joint set of proposed jury instructions on behalf of those
defendants. (ECF 372.) The Court has not yet ruled on the parties’
competing requested instructions.
On June 6, 2021, the government provided defendants with a draft
of a proposed verdict form for each defendant in an effort to meet
and confer on joint proposed verdict forms to file with the Court.
Counsel for defendant R. AYVAZYAN stated they intended to file a
separate proposed verdict form on behalf of defendant R. AYVAZYAN.
The government received comments from defendants TERABELIAN, V.
DADYAN, and HAYRAPETYAN, and implemented some requests but were not
able to agree on another, as described in the preface to the
government’s proposed verdict forms filed on June 8, 2021.
The government submitted its exhibits list and witness list to
defendants, in accordance with this Court’s order, on June 1, 2021,
and filed the exhibits and witness lists with the Court on June 9,
2021, per the Court’s Order. (ECF 449.)
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The government has also filed its proposed voir dire. (ECF
453.)
V.
TRIAL EVIDENCE
The evidence at trial will include the following types of
evidence:
Business Records: The government will offer a significant
amount of business records, including through Rule 902(11)
certifications as self-authenticating business records as described
further herein, as part of its case-in-chief. These business records
were obtained from banks, lenders, real estate and escrow companies,
brokerage and cryptocurrency trading firms, jewelry stores and other
retailers (such as high-end furnishings and timepiece distributors),
telecommunications companies, and other business entities. These
records include, among other things, bank records (including records
for the accounts opened and used by defendants to receive and launder
the fraudulent loan proceeds), loan applications and supporting
materials, loan files, telephone records, Internet Protocol address
records, certificates of authenticity from the FDIC, escrow records,
receipts and business records relating to the sale of goods and
services, brokerage and cryptocurrency account records, and apartment
leasing records and security video.
Public Records (and the absence thereof): The government also
will offer evidence obtained from governmental and public entities
regarding certain individual and/or business identifying information
relevant to the charged conspiracies and schemes as well as
documentation submitted in connection with fraudulent loan
applications. As discussed further herein, that evidence will
include certifications from these public entities of the absence of
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records regarding identifying information or documentation (i.e., the
information was fictitious or otherwise does not exist) that was
submitted with loan applications or associated with bank accounts
relevant to the charges.
Materiality Witnesses: The government intends to call a witness
from the Small Business Administration who will provide brief facts
about the PPP and EIDL programs, the application, and the importance
of certain information in the application. The witness is also an
SBA custodian of record. The government further intends to call a
witness from a PPP lender, who can testify as to the importance of
certain information and representations in the PPP application.
Physical Evidence Seized Pursuant to Searches: The government
will offer physical evidence, documentation, and photographs
pertaining to information seized as part of searches conducted in
this case pursuant to search warrants as well as other physical
evidence seized during the course of the investigation, including
through trash pulls and physical credit cards seized from defendants
R. AYVAZYAN and TERABELIAN in Miami. Among other things, these
materials relate to the significant amount of stolen or synthetic
identifying information and other underlying fraudulent documentation
and instrumentalities used in furtherance of the charged conspiracies
and schemes.
Data extracted from Seized Digital Devices: The government
intends to call two FBI forensic examiners, one of whom extracted the
data from three of the iPhones whose content the government intends
to admit into evidence, and a second examiner that extracted data
from a fourth iPhone. The primary purpose of these witnesses is to
establish authenticity for the basis of the government’s trial
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exhibits. The examiners are expected to testify that they received
the devices, extracted data from the devices in a manner consistent
with forensic methodology, and then provided the data in a readable
report for review (a “Cellebrite report”), that became the basis for
the government’s trial exhibits. A testifying agent is then expected
to testify that the trial exhibits contain a true and accurate
representation of the extracted data in the Cellebrite report, and
introduce into evidence the data extracted from the four iPhones.
The testifying agent is further expected to identify PPP and EIDL
applications, wire transfers, identification cards, and other
evidence referenced in text messages or images found on the iPhones.
Call Recordings: The government seeks to admit two recordings
of jail calls defendant TERABELIAN made after her arrest in Miami
while in custody at the Broward County Jail. The government also
seeks to admit recorded phone calls defendant T. DADYAN made to
Capital One Bank in connection with the attempted bank fraud charge
against her.
VI.
WITNESSES
The government anticipates calling around 25 witnesses in its
case-in-chief, including:
• a witness from the SBA and one SBA-approved PPP lender to
testify about the program and materiality of the false and
misleading statements;
• individual victims whose identities or business names were
stolen and used as part of the fraud;
• witnesses from state and federal agencies and Gusto (a
payroll processor) to establish the falsity of the
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information included in the PPP and EIDL applications
submitted as part of the fraud;
• percipient witnesses who witnessed defendant R. Ayvazyan
using synthetic identities;
• a summary witness to describe the flow of PPP and EIDL loan
funds between defendants and use of the funds;
• forensic examiners to testify about the authenticity of
digital evidence seized from certain defendants’ iPhones;
• foundation witnesses, including case agents, to testify
about evidence seized from certain defendants’ residences
and the agents’ investigation of the crimes charged in the
indictment; and
• law enforcement officers to authenticate physical evidence
seized at Miami International Airport and jail calls, and
an Armenian-language translator to translate those calls.
In the event that defendants do not agree to stipulate to
certain facts such as the interstate nature of the wires underlying
the wire fraud counts or the FDIC-insured status of banks underlying
the bank fraud counts, and/or if defendants are not willing to
stipulate to the authenticity of certain documents (and the Court
does not rule on the government’s motion in limine before trial), the
government may also call witnesses to testify to these facts.
The government reserves the right to call additional witnesses
as necessary and rebuttal witnesses should defendants present a case.
VII. LEGAL AND EVIDENTIARY ISSUES
A.
Text Messages, Emails, and Call Recordings
The government intends to introduce at trial text messages that
defendants exchanged with each other and others in the course of the
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charged conspiracies and schemes, and emails that defendants sent to
third-parties to whom they sent fraudulently-obtained PPP and EIDL
loan funds. The government also intends to introduce at trial
recordings of telephone calls that certain defendants made during the
course of the charged conspiracies and schemes. These text messages,
emails, and call recordings fall into three main categories:
(1) admissions by an opposing party; (2) co-conspirator statements;
and (3) business records. The first and second categories consist
mostly of: text message conversations between co-conspirators during
and in furtherance of the conspiracy, along with files and images
sent to each other as part of the text message conversation, as well
as recorded telephone calls T. DADYAN made to Capital One Bank and
TERABELIAN made while detained at the Broward County Jail. The third
category consists primarily of text messages between R. AYVAZYAN
(using a telephone number associated with synthetic identity, Iuliia
Zhadko) and a vendor of luxury watches and text messages between R.
AYVAZYAN and a real estate broker to arrange the purchase of a house
for synthetic identity, Anton Kudiumov.
1.
Opposing Party Admissions
Many of the texts, emails, and call recordings discussed above
are admissible as party admissions. Statements by a defendant, when
offered by the government, are admissions by a party-opponent and are
therefore not hearsay under Federal Rule of Evidence 801(d)(2).
United States v. Ortega, 203 F.3d 675, 682 (9th Cir. 2000). For
example, this would include a text message exchanged between co-
conspirators R. AYVAZYAN and T. DADYAN in which they explicitly
discuss changing EIN numbers by one digit in PPP or EIDL
applications. This would also include text messages exchanged
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between R. AYVAZYAN and the luxury watch salesman discussing the
purchase of an expensive watch for Viktoria Kauichko, and between R.
AYVAZYAN and the real estate broker discussing the purchase of a
house for Anton Kudiumov.
Courts routinely admit electronic evidence, like text messages
and emails, as party admissions in criminal cases. See, e.g., United
States v. Safavian, 435 F. Supp. 2d 36, 43 (D.D.C. 2006) (“The
statements attributed directly to [defendant] come in as admissions
by a party opponent under Rule 801(d)(2)(A)”); United States v.
Siddiqui, 235 F.3d 1318, 1323 (11th Cir. 2000) (“Those [emails] sent
by [defendant] constitute admissions of a party”).
As discussed in a separate section below, however, the rule does
not go both ways. A defendant’s statements offered by him or her are
inadmissible hearsay. United States v. Ortega, 203 F.3d 675, 682
(9th Cir. 2000); see also United States v. Fernandez, 839 F.2d 639,
640 (9th Cir. 1988).
2.
Co-Conspirator Statements
The government will also seek to introduce texts and emails from
R. AYVAZYAN, T. DADYAN, and other co-conspirators in its case-in-
chief as co-conspirator statements. Texts and emails that R.
AYVAZYAN, T. DADYAN, and others sent during the course of and in
furtherance of the charged conspiracies and schemes are co-
conspirator statements admissible as non-hearsay under Fed. R. Evid.
801(d)(2)(E).
Statements of one co-conspirator during the course of and in
furtherance of the conspiracy may be used against another conspirator
because such statements are not hearsay. See Fed. R. Evid.
801(d)(2)(E). Further, the Supreme Court has held in Crawford v.
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Washington, 541 U.S. 36, 56 (2004), that statements made in
furtherance of a conspiracy are “not testimonial” such that their
admission does not violate the Confrontation Clause. As such, the
introduction of co-conspirator statements pursuant to Fed. R. Evid.
801(d)(2)(E) requires only a foundation that: (1) the declaration was
made during the course of the conspiracy; (2) it was made in
furtherance of the conspiracy; and (3) there is, including the co-
conspirator’s statement itself, sufficient proof of the existence of
the conspiracy and of the defendant’s connection to it. Bourjaily v.
United States, 483 U.S. 171, 173, 181 (1987); United States v.
Larson, 460 F.3d 1200, 1211 (9th Cir. 2006).
The government must prove by a preponderance of the evidence
that a statement is a co-conspirator statement in order for the
statement to be admissible under Rule 801(d)(2)(E). Bourjaily, 483
U.S. at 176; United States v. Crespo de Llano, 838 F.2d 1006,
1017(9th Cir. 1987). Whether the government has met its burden is to
be determined by the trial judge, not the jury. United States v.
Zavala-Serra, 853 F.2d 1512, 1514 (9th Cir. 1988). The Court may
rely on inadmissible evidence, such as a co-conspirator’s plea
agreement, in determining whether the 801(d)(2)(E) exception applies.
Cf. United States v. Gil, 58 F.3d 1414, 1420 (9th Cir. 1995) (the
preliminary determination of whether Fed. R. Evid. 801(d)(2)(E)
applies is to be made “by the court, not the jury, pursuant to Fed.
R. Evid. 104(a)); Fed. R. Evid. 104(a) (“the court must decide any
preliminary question about whether . . . evidence is admissible. In
so deciding, the court is not bound by evidence rules, except those
on privilege”).
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B.
Business Records and Absence of Public Records
1.
Business Records
As described more fully in its MIL #4, the government will seek
to admit documents and records that were obtained from banks,
lenders, real estate and escrow companies, brokerage and
cryptocurrency trading firms, jewelry stores and other retailers
(such as high-end furnishings and timepiece distributors),
telecommunications companies, and other business entities. These
records include, among others, the records described in Section V
(Trial Evidence) above.
Challenges to the accuracy or completeness of business records
ordinarily go to the weight of the evidence and not its
admissibility. See United States v. Scholl, 166 F.3d 964 (9th Cir.
1999), as amended on denial of reh'g (Mar. 17, 1999); La Porte v.
United States, 300 F.2d 878, 880—82 (9th Cir. 1962). Because Rule
803(6) represents a firmly rooted hearsay exception, if non-
testimonial evidence meets the requirements for admission under the
Rule, no further showing of reliability is necessary for admission
under the Confrontation Clause. See Ohio v. Roberts, 448 U.S. 56, 66
n.8 (1980), overruled on other grounds by Crawford v. Washington, 541
U.S. 36 (2004); Ray, 930 F.2d at 1371; United States v. Norton, 867
F.2d 1354, 1363 (11th Cir. 1989); United States v. Baker, 855 F.2d
1353, 1360 (8th Cir. 1988).
Moreover, computer printouts that are compilations of data
regularly maintained by a business, such as printouts from a bank’s
internal accounting systems or other systems that business entities
maintain in the ordinary course of its business, are admissible as
records of regularly conducted activity pursuant to Fed. R. Evid.
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803(6). See United States v. Catabran, 836 F.2d 453, 458 (9th Cir.
1988) (“Any question as to the accuracy of the printouts, whether
resulting from incorrect data entry or the operation of the computer
program, as with inaccuracies in any other type of business records,
would have affected only the weight of the printouts, not their
admissibility.”); United States v. Bonallo, 858 F.2d 1427, 1436 (9th
Cir. 1988) (“The fact that it is possible to alter data contained in
a computer is plainly insufficient to establish untrustworthiness.
The mere possibility that the logs may have been altered goes only to
the weight of the evidence not its admissibility.”); U-Haul Int’l v.
Lumbermans Mutual Casualty Co., 576 F.3d 1040, 1043-44 (9th Cir.
2009) (computer records kept in the regular course of business
activity properly admitted under Rule 803(6)).
Certified records of regularly conducted activity or records
generated by an electronic process or system (such as subscriber
records and IP address information from a telecommunications company
or internet service provider) as well as certified data copied from
an electronic device, storage medium, or file (such as data obtained
from a bank’s internal systems), are self-authenticating when
accompanied by a written certification satisfying the requirements of
Fed. R. Evid. 902(11), 902(13), or 902(14). The government has
obtained and produced 902(11) certifications for numerous banks’
business records (including bank account information and loan files).
The government has produced all of the underlying documents and the
certifications in discovery and given advance notice regarding its
intent to seek to admit these types of documents under the relevant
rules, and, through its forthcoming motion in limine, will be seeking
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to admit a number of exhibits as self-authenticating records under
these rules.
2.
Absence of Public Records
Similarly, the government will seek to admit as self-
authenticating documents under Federal Rule of Evidence 902(4)
certifications obtained from several federal and state governmental
or public entities reflecting the absence of certain public records
directly relevant to the charges in this case. The information
obtained from these public entities, including the IRS, California
Employment Development Department (“CA EDD”), California Department
of Motor Vehicles (“CA DMV”), and United States Department of
Homeland Security (“DHS”), reflect that individual and business
identifying information or fictitious documentation submitted in
connection with the fraudulent loan applications did not in fact
exist. A certification of (or testimony from a custodian regarding)
the absence of public records from these entities is admissible under
Federal Rule of Evidence 803(10).
Rule 803(10) provides, in relevant part, that “[t]estimony — or
a certification under Rule 902 — that a diligent search failed to
disclose a public record or statement” constitute exceptions to the
rule against hearsay “if the testimony or certification is admitted
to prove that the record or statement does not exist; or a matter did
not occur or exist, if a public office regularly kept a record or
statement for a matter of that kind.” Fed. R. Evid. 803(10)(A). The
Rule further provides that, “in a criminal case, a prosecutor who
intends to offer a certification provides written notice of that
intent at least 14 days before trial, and the defendant does not
object in writing within 7 days of receiving the notice — unless the
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court sets a different time for the notice or the objection.” Fed.
R. Evid. 803(10)(B); see also Fed. R. Evid. 803, Committee Notes on
Rules – 2013 Amendment (explaining that “notice-and-demand” procedure
satisfies Confrontation Clause following Melendez-Diaz v.
Massachusetts, 557. U.S. 305 (2009)).
In compliance with Rule 803(10)(B), the government provided
notice to defense counsel on May 18, 2021, of the government’s intent
to introduce certain evidence of the absence of public records
through testimony and/or pursuant to certifications under Rule 902.
The notice explained that the government would be producing
certifications with respect to the non-existence of public records
pertaining to information from the IRS, CA EDD, CA DMV, and DHS that
had previously been produced in discovery. The government did not
receive an objection from any defendant. The government thereafter
produced the certifications of the absence of public records, which
it obtained pursuant to trial subpoenas, in discovery. The
government intends to move these certifications into evidence at
trial under Federal Rules of Evidence 803(10) and 902.6
6 The government also may offer testimony about the absence of
public records through a witness “familiar with both the process of
searching the records and the government's recordkeeping practices
with regard to the database.” United States v. Diaz–Lopez, 625 F.3d
1198, 1200 (9th Cir. 2010). The Ninth Circuit has recognized that,
“[u]nlike Rule 803(6), which governs the admissibility of business
records, Rule 803(10) does not specify ‘the testimony of the
custodian or another qualified witness.’” United States v. Parker,
761 F.3d 986, 992 (9th Cir. 2014) (quoting Fed. R. Evid. 803(6)(D)).
“Rather, Rule 803(10) simply requires ‘testimony’ that a diligent
search did not turn up a public record.” Id. However, because it
has satisfied the notice-and-demand procedure of Rule 803(10)(B), and
in the interest of streamlining its trial presentation, the
government may also seek to offer the evidence of absence of public
records through the self-authenticating certifications produced in
discovery.
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C.
Defendants May Not Introduce Their Own Statements, Texts,
Email Messages, or Call Recordings
Defendants engaged in numerous text message conversations with
each other. The government does not intend to introduce all of these
communications, but will instead introduce selected portions in its
case-in-chief. The portions that the government intends to introduce
are relevant to guilt or innocence, and exclude irrelevant
communications that might be misleading or confusing to the jury or
otherwise excludable under Fed. R. Evid. 403 (such as references to
watching political events associated with a particular candidate that
might otherwise be probative as to defendants’ monitoring of the
availability of COVID-19 relief funds and COVID-19 relief programs).
As discussed above, because statements by a party are not hearsay
when offered by the opposing party, see Fed. R. Evid. 801(d)(2), the
prosecution can properly admit defendants’ texts, emails, and calls
into evidence as party admissions.
1.
Defendants may not introduce their own statements
unless a hearsay exception applies
Defendants, however, cannot admit their own statements, texts,
email messages, or call recordings unless a hearsay exception
applies. See Fed. R. Evid. 802; United States v. Harry, 816 F.3d
1268, 1279 (10th Cir. 2016). The Court should be wary of any attempt
that defendants may make to introduce their own statements using
narrowly-tailored hearsay exceptions that do not apply. For example,
any attempt by defendant to introduce their own statements under the
“state of mind” exception to the hearsay rule, Fed. R. Evid. 803(3),
should be viewed with skepticism. Rule 803(3) “narrowly limit[s]
those admissible statements to declarations of condition-‘I'm
scared’-and not belief-‘I'm scared because [someone] threatened me.’”
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United States v. Emmert, 829 F.2d 805, 810 (9th Cir. 1987) (citing
United States v. Cohen, 631 F.2d 1223, 1225 (5th Cir. 1987).
Similarly, the “effect on a listener” exception does not allow
defendants to admit all of their statements under the theory that the
statements are not offered for the truth, but merely to show what she
did in response or why she did what she did. Any attempt to admit
defendants’ statements on this basis would be an improper end run
around the hearsay rule. United States v. Torres, 794 F.3d 1053,
1061 (9th Cir. 2015) (upholding exclusion of statements that
defendant sought to admit under “effect on the listener” exception as
defendant “offered the statements for the truth of the defense
asserted” and for the “implied assertions” in the statements that
another person sent defendant unwittingly on a drug importation
mission).
2.
The “rule of completeness” does not allow defendants
to introduce inadmissible statements
Moreover, any “rule of completeness” argument based on Federal
Fed. R. Evid. 106 (“Rule 106”) is applicable only when one party
seeks to introduce a misleadingly tailored excerpt of a statement.
Fed. R. Evid. 106. Rule 106 “does not, however, require the
introduction of any unedited writing or statement merely because an
adverse party has introduced an edited version.” United States v.
Vallejos, 742 F.3d 902, 905 (9th Cir. 2014). It is proper to admit
segments of a conversation without including the entire conversation,
and adverse parties are not entitled to offer additional statements
just because they exist and the proponent has not offered them. See
United States v. Collicott, 92 F.3d 973, 983 (9th Cir. 1996). If the
statements offered by the defendant do not clarify a misleading
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impression, the district court should exclude them. Vallejos, 742
F.3d at 905; see also United States v. Crosgrove, 637 F.3d 646, 661
(6th Cir. 2011) (finding that defendant could not introduce text
messages under Rule 106 because messages were too far removed in time
to correct any misleading impression). Finally, Rule 106 does not
make otherwise inadmissible evidence admissible. Collicott, 92 F.3d
at 983; United States v. Cisneros, No. 217CR00229ACAS1, 2018 WL
3702497, at *11 (C.D. Cal. 2018) (“[D]efendant’s exculpatory
statements to law enforcement are inadmissible hearsay and thus
cannot be introduced pursuant to Rule 106.”).
D.
Cross-Examination of Defendants and Defense Witnesses
1.
Cross-Examination of Defendants
The government does not know whether any of the defendants
intend to testify at trial or call any witnesses as part of a defense
case. If one or more of the defendants do testify, the government
should be permitted fully to cross-examine them because a defendant
who testifies at trial waives their right against self-incrimination
and subjects themself to cross-examination concerning all matters
reasonably related to the subject matter of their testimony. See
Ohler v. United States, 529 U.S. 753, 759 (2000) (“It has long been
held that a defendant who takes the stand in his own behalf cannot
then claim the privilege against cross-examination on matters
reasonably related to the subject matter of his direct examination.”)
(quoting McGautha v. California, 402 U.S. 183, 215 (1971), vacated in
part on other grounds by Crampton v. Ohio, 408 U.S. 941 (1972)).
A defendant has no right to avoid cross-examination on matters
that call into question his or her credibility or any claim of
innocence. United States v. Miranda-Uriarte, 649 F.2d 1345, 1353-54
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(9th Cir. 1981). The scope of a defendant’s waiver is co-extensive
with the scope of relevant cross-examination. United States v.
Cuozzo, 962 F.2d 945, 948 (9th Cir. 1992); United States v. Black,
767 F.2d 1334, 1341 (9th Cir. 1985) (“What the defendant actually
discusses on direct does not determine the extent of permissible
cross-examination or his waiver. Rather, the inquiry is whether ‘the
government’s questions are reasonably related’ to the subjects
covered by the defendant’s testimony.”).
As previously noted, defendants R. AYVAZYAN and TERABELIAN have
filed a motion in limine to preclude the use of their prior federal
bank fraud conspiracy convictions under Federal Rule of Evidence
404(b) and to limit the information the government can reveal about
these convictions under Federal Rule of Evidence 609. (ECF 340.)
The government has opposed this motion (ECF 357), and, pending the
Court’s ruling, intends to introduce evidence as to the name and
nature of the offense for which defendants R. AYVAZYAN and TERABELIAN
were convicted -- not just the date and fact of the felony conviction
-- on cross-examination of these defendants.7 (See ECF 357 at 15-
17.)
2.
Cross-Examination of Defense Witnesses
Similarly, if any defendant calls a character witness, the
government should be allowed to cross examine that witness with
information pertaining to how the witness’s opinion of defendant’s
7 As set forth in its opposition to defendants R. AYVAYZAN’s and
TERABELIAN’s motion in limine regarding their prior convictions, the
government separately seeks to admit evidence of their prior bank
fraud conspiracy conviction under Federal Rule of Evidence 404(b)(2)
as highly probative, among other things, of their knowledge and
intent with respect to the bank fraud conspiracy and substantive
counts charged in this case. (See ECF 357 at 6-15.)
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character would change if the witness were confronted with a specific
instance of defendant’s conduct that rebuts that opinion. A
character witness who offers an opinion on or discusses defendant’s
reputation for good character on direct examination can be cross
examined with relevant specific instances of conduct. Under Fed. R.
Evid. 404(a)(2)(A), character evidence is admissible when offered by
the prosecution to rebut “evidence of a pertinent trait” of character
offered by a defendant. See also Fed. R. Crim. P. 405(a). “[W]hen
the defendant ‘opens the door’ to testimony about an issue by raising
it for the first time himself, he cannot complain about subsequent
government inquiry into that issue.” United States v. Mendoza-Prado,
314 F.3d 1099, 1105 (9th Cir. 2002) (quoting United States v.
Hegwood, 977 F.2d 492, 496 (9th Cir. 1992)). Such cross examination
can be properly phrased in the form of “have you heard” or “did you
know” questions regarding defendant’s criminal conduct. See United
States v. Scholl, 166 F.3d 964, 974 (9th Cir. 1999).
E.
Summary Exhibits
This case involves a large number of documents, including
voluminous bank and financial records and loan files. To assist the
jury’s understanding of the case, the government intends to present
charts and summaries that will aid the jury in understanding the
evidence, including summary exhibits that summarize: (a) information
related to the many PPP and EIDL loans submitted by defendants,
including in the names of their aliases; (b) the bank accounts that
defendants owned and controlled and used to receive and transfer PPP
and EIDL loan funds; and (c) defendants’ use of the PPP and EIDL loan
proceeds.
Federal Rule of Evidence 1006 provides:
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The proponent may use a summary, chart, or calculation to
prove the content of voluminous writings, recordings, or
photographs that cannot be conveniently examined in court.
The proponent must make the originals or duplicates
available for examination or copying, or both, by other
parties at a reasonable time and place. And the court may
order the proponent to produce them in court.
Fed. R. Evid. 1006.
The Advisory Committee Notes to Rule 1006 add that “[t]he
admission of summaries of voluminous books, records, or documents
offers the only practicable means of making their contents available
to judge and jury. The rule recognizes this practice, with
appropriate safeguards.” Fed. R. Evid. 1006, 1972 Advisory Committee
Notes; see also United States v. Johnson, 594 F.2d 1253, 1255 (9th
Cir. 1979) (“The purpose of Rule 1006 is to allow the use of
summaries when the volume of documents being summarized is so large
as to make their use impractical or impossible; summaries may also
prove more meaningful to the judge and jury.”).
A summary chart may be admitted as substantive evidence when the
proponent establishes that the underlying documents upon which the
summary is based are voluminous, admissible, and available for
inspection. Johnson, 594 F.2d at 125-26; see also United States v.
Rizk, 660 F.3d 1125, 1130 (9th Cir. 2011); United States v. Aubrey,
800 F.3d 1115, 1130 (9th Cir. 2015). Although the materials
underlying the summary must be admissible, they need not themselves
be admitted into evidence. Rizk, 660 F.3d at 1130—31. In addition,
the summary chart must be accurate, authentic, and properly
introduced. United States v. Scales, 594 F.2d 558, 563 (6th Cir.
1979) (affirming introduction of summary charts presenting an
organization of undisputed objective evidence in terms of relevant
counts of the indictment). Any contention that the chart may contain
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inaccuracies or omissions goes to the weight of the evidence, not its
admissibility. Rizk, 660 F.3d at 1131 at n.2.
Rule 1006 does not require that a jury’s examination of the
underlying records be literally impossible before a summary or a
chart may be utilized. “All that is required for the rule to apply
is that the underlying writings be ‘voluminous’ and that in court
examination not be convenient.” Scales, 594 F.2d at 562. Nor does
the large size of, or other complexity to, a summary chart render it
inadmissible when it contains otherwise unobjectionable evidence.
Id. at 563. Where a chart does not contain complicated calculations
that would require an expert for accuracy, authentication of the
chart requires only that the witness (1) have properly catalogued the
exhibits and records upon which the chart is based; and (2) have
knowledge of the analysis of the records referred to in the chart.
Id.; see Goldberg v. United States, 789 F.2d 1341, 1343 (9th Cir.
1986) (upholding district court’s determination that the testimony of
a revenue agent as to summaries of voluminous tax records did not
include any expert opinions or conclusions); United States v. Pree,
408 F.3d 855, 869 (7th Cir. 2005) (“When a summary witness simply
testifies as to what the government's evidence shows, he does not
testify as an expert witness.”). The use of other persons in the
preparation of summary evidence goes to the weight of the evidence,
not its admissibility. See United States v. Soulard, 730 F.2d 1292,
1299 (9th Cir. 1984).
Finally, summary charts need not contain the defendant’s version
of events. See United States v. Lemire, 720 F.2d 1327, 1349 (D.C.
Cir. 1983); Barsky v. United States, 339 F.2d 180, 181 (9th Cir.
1964) (rejecting defendant’s argument that summary should be excluded
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because it did not contain his version of the case; accepting that
argument “would be to hold that if a defendant had an alibi, no
matter how improbable, then no expert could prepare a summary of the
evidence tending to prove guilt”).
Defendant R. AYVAZYAN has filed a motion in limine seeking to
exclude the government’s introduction of summary charts (ECF 451), to
which the government will be filing an opposition.
F.
Summary Witnesses
The government will seek to introduce some of the above summary
charts through Marylee Robinson, a Managing Director at Stout Risius
Ross, LLC. A summary witness may properly testify about, and use a
chart to summarize, evidence that is voluminous and complex. The
court and jury are entitled to have a witness “organize and evaluate
evidence which is factually complex and fragmentally revealed.”
United States v. Shirley, 884 F.2d 1130, 1133-34 (9th Cir. 1989)
(agent’s testimony regarding her review of various telephone records,
rental receipts, and other previously offered testimony held to be
proper summary evidence, as it helped jury organize and evaluate
evidence; summary charts properly admitted); accord United States v.
Lemire, 720 F.2d 1327, 1348 (D.C. Cir. 1983). Further, a summary
witness may be assisted by others in the preparation of summary
evidence; the assistance provided by other people in the preparation
of summary evidence goes to its weight, not its admissibility. See
United States v. Soulard, 730 F.2d 1292, 1299 (9th Cir. 1984);
Diamond Shamrock Corp. v. Lumbermens Mut. Cas. Co., 466 F.2d 722, 727
(7th Cir. 1972) (“It is not necessary . . . that every person who
assisted in the preparation of the original records or the summaries
be brought to the witness stand.”).
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Defendant R. AYVAZYAN has filed a motion in limine seeking to
exclude the government’s summary witness (ECF 451), to which the
government will be filing an opposition.
G.
Affirmative Defenses
None of the defendants have given notice of any affirmative
defenses or an intent to rely on any affirmative defense, including
mental incapacity, entrapment, or duress, or an alibi defense, in
response to the government’s requests for such notice. Therefore, to
the extent defendant may attempt to rely on such a defense, the
government reserves the right to object and to move to preclude the
defendant from asserting such a defense.
In addition, as previously noted, the government filed MIL #1
seeking to exclude as a defense any evidence and arguments concerning
alleged victim negligence as well as any reference to loan guarantees
that specific victims in this case, specifically lenders and loan
processors for the PPP, may have been provided by the SBA. (ECF
358.) Defendant GRIGORYAN, joined by defendant R. AYVAZYAN, oppose
MIL #1, seeking to inquire into and/or introduce evidence regarding
these issues at trial. (ECF 383, 386.) For the reasons set forth
more fully in its MIL #1, which remains pending, the government
submits that “a victim’s negligence is not a defense to . . . fraud,”
and “[e]vidence of lender negligence is thus not admissible as a
defense . . .” United States v. Lindsey, 850 F.3d 1009, 1014 (9th
Cir. 2017). For similar reasons, as explained in MIL #1, evidence or
argument regarding the SBA’s guarantees to PPP lenders is irrelevant
to the charges in this case and would be a waste of time and tend to
confuse and mislead the jury as to the issues of guilt. Fed. R.
Evid. 401-403.
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H.
Reciprocal Discovery
To date, none of the defendants have produced any discovery to
the government despite the government’s requests for reciprocal
discovery pursuant to Federal Rule of Criminal Procedure 16(b). The
reciprocal discovery requirements of Federal Rule of Criminal
Procedure 16(b) require the defendant to produce (A) information
pertaining to “books, papers, documents, data, photographs, [or]
tangible objects . . . [if] the defendant intends to use the item in
the defendant’s case-in-chief at trial;” (B) Reports of Examinations
and Tests; and (C) “a written summary of any testimony that the
defendant intends to use under Rules 702, 703, or 705 of the Federal
Rules of Evidence” pertaining to expert witnesses. Fed. R. Crim. P.
16(b). To the extent any defendant attempts to introduce or use any
documents (including texts, emails, or other electronic evidence) at
trial that has not been produced and to which the government is
entitled under Federal Rules of Criminal Procedure 12.1, 12.2, 16(b),
or 26.2, or seeks to rely on an undisclosed affirmative defense, the
government reserves the right to object and to request that the Court
exclude the documents or the affirmative defense.
VIII.
CONCLUSION
The government respectfully requests leave to file such
supplemental memoranda as may become necessary during trial.
Case 2:20-cr-00579-SVW Document 475 Filed 06/09/21 Page 44 of 44 Page ID
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