NOTICE OF MOTION AND MOTION in Limine to Exclude cellphone image (gov.'s proposed… — USA v. Ayvazyan et al (Dkt. 545)

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Marietta Terabelian's Motion in Limine to Exclude Cellphone Image (Gov.'s Proposed Exhibit 16b), Document 545, filed 06/17/21 in Case No. 2:20-cr-579-SVW before Hon. Stephen V. Wilson in the United States District Court, Central District of California. The motion states that Terabelian moves under Federal Rules of Evidence 401-404 to exclude a cellphone image the government proposes to introduce at trial. It argues that the exhibit is a digital image extracted from an iPhone 12 attributed to Terabelian during the November 5, 2020 search, that it shows another phone displaying a photograph, and that it is confusing, prejudicial and prior acts evidence under FRE 404(b). It also states that the government failed to provide FRE 404(b)(3) notice. It is dated June 17, 2021.

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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 
MOTION IN LIMINE TO EXCLUDE 
CELLPHONE IMAGE (GOV.’S 
PROPOSED EXHIBIT 16b) 
 
 
 
 
 
 
 
Case 2:20-cr-00579-SVW     Document 545     Filed 06/17/21     Page 1 of 7   Page ID
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TERABELIAN’S MOTION IN LIMINE TO EXCLUDE GOV.’S PROP. EX. 16b 
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TO THIS HONORABLE COURT, ALL PARTIES, AND ATTORNEYS OF 
RECORD:  
Through counsel, defendant Marietta Terabelian hereby moves, pursuant to 
Federal Rules of Evidence 401–404, to exclude a cellphone image the government  
proposes to introduce at trial as exhibit 16b.  
  
Dated:   June 17, 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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TERABELIAN’S MOTION IN LIMINE TO EXCLUDE GOV.’S PROP. EX. 16b 
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MEMORANDUM OF POINTS AND AUTHORITIES 
I. 
Introduction  
If a picture is worth a thousand words, how many words is a cellphone picture of 
a cellphone displaying a picture (and some of its metadata) worth? That’s the question 
for the government to answer as the proponent of a confusing exhibit with a loose 
connection to the case, but substantial dangers of unfair prejudice and confusion. The 
exhibit also represents “prior acts” evidence that is inadmissible under Federal Rule of 
Evidence (“FRE”) 404(b). Marietta Terabelian moves to exclude the government’s 
proposed exhibit 16b under FRE 401–404. 
II. 
Statement of facts 
Government exhibit 16b consists of the digital image shown below with apparent 
personal identifying information redacted. The exhibit is not a law enforcement 
officer’s photograph of a phone, but rather a digital image extracted from the iPhone 12 
attributed to Terabelian and collected by law enforcement during the November 5, 
2020, search and seizure at her home on Topeka Drive in Tarzana. This image depicts 
another iPhone of unknown model that is displaying another photograph (“the 
Displayed Photograph”). The limited metadata shown just above the Displayed 
Photograph indicate that the Displayed Photograph was taken on September 21 of an 
unspecified year at 10:53 a.m.  
 
 
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TERABELIAN’S MOTION IN LIMINE TO EXCLUDE GOV.’S PROP. EX. 16b 
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TERABELIAN’S MOTION IN LIMINE TO EXCLUDE GOV.’S PROP. EX. 16b 
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Meanwhile, the metadata from the exhibit itself, as reported by the government’s 
Cellebrite digital-forensic technology, show that that photograph was taken in 2018 
using a third phone—an iPhone XS. See Exhibit A. Exhibit 16b appears to have been 
downloaded onto the iPhone 12 in late October or early November 2020 en masse when 
the iPhone was linked with Terabelian’s iCloud account. From a generalized overview 
of the iPhone 12’s approximately 44,000 images, it appears that roughly half or more of 
the iPhone 12’s images share the same date or approximate date of download, which 
strongly suggests an automatic batched download, rather than a user-selected download 
of particular content.  
The government failed to provide FRE 404(b)(3) notice related to exhibit 16(b). 
And exhibit 16b was not discussed in the government’s motion in limine #2 to admit 
inextricably intertwined evidence. 
III. 
Argument 
A. The exhibit lacks foundation and is irrelevant. 
Who took the picture that is exhibit 16b is unknowable, because the metadata 
reveal unambiguously that it originates from 2018 and an otherwise unidentified iPhone 
XS. Because the iPhone 12 was released only in October 2020 and is not the same as 
model XS, it is beyond any reasonable dispute that the image was taken with a different 
iPhone from the one from which the government extracted it. Without additional 
foundational facts, it is impossible to link the exhibit rationally to the allegations against 
Terabelian or other admissible evidence. There is no evidence to show how the 
information displayed relates to anything Terabelian did. Because the jury cannot 
rationally relate the presence of exhibit 16b on Terabelian’s phone to any fact of 
consequence without additional evidence, it is irrelevant. 
B. The exhibit is confusing and unfairly prejudicial. 
The exhibit leaves jurors to wonder who Susanna Mkrtchyan is, but they will 
search this record in vain for an answer. “Fiber One Media” is an entity mentioned in the 
indictment, but exhibit 16b does not show that Terabelian did anything with the name 
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TERABELIAN’S MOTION IN LIMINE TO EXCLUDE GOV.’S PROP. EX. 16b 
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“Fiber One Media,” or what the name itself would have meant to her, even assuming she 
ever saw this image. To the extent the concept that Terabelian must have heard of “Fiber 
One Media” is relevant, the probative value is minimal in comparison to the confusion, 
distraction, and unfairly prejudicial speculation that the exhibit invites from jurors. 
C. The exhibit is inadmissible “prior acts” evidence under FRE 404(b). 
Because the exhibit dates from two years before the superseding indictment’s 
allegations, it is “prior acts” evidence—presumably of Terabelian taking the photograph 
herself or at least knowingly receiving this image—1and not inextricably intertwined with 
the indictment’s claims. But FRE 404(b) has essential preconditions for admission that 
are not satisfied here.  
First, there must be evidence sufficient to support a finding that the defendant 
committed the prior act. E.g., United States v. Bailey, 696 F.3d 794, 799 (9th Cir. 2012). 
Here, there is no evidence that Terabelian took this photograph—it was not taken on a 
phone the government has shown she possessed or used. Nor is there any evidence to 
show that Terabelian ever saw or used this single image among about 44,000 on the 
iPhone 12. Therefore, there is not evidence sufficient to support a finding that Terabelian 
took this picture or knowingly received it. 
Second, the government failed to provide the required written notice before trial. 
In 2020, “Rule 404(b) [was] amended principally to impose additional notice 
requirements on the prosecution in a criminal case.” Committee Notes on 2020 
Amendments. Since this amendment, pursuant to FRE 404(b)(3), the prosecutor in a 
criminal case must provide more robust written pretrial notice to the defense. This is not 
 
1 If neither of those things, the exhibit does not connect rationally to any fact of 
consequence. Admittedly, Terabelian is left to guess at the government’s theory for 
admission. That is because the government failed to provide any pretrial 404(b) notice 
for exhibit 16b or acknowledge before trial that the metadata show it long predates the 
chronological scope of the superseding indictment. See FRE 404(b)(3)(B) (requiring 
government’s written pretrial notice to “articulate in the notice the permitted purpose 
for which the prosecutor intends to offer the evidence and the reasoning that supports 
the purpose”). 
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TERABELIAN’S MOTION IN LIMINE TO EXCLUDE GOV.’S PROP. EX. 16b 
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a mere a formality. The government must “articulate in [its written pretrial] notice the 
permitted purpose for which the prosecutor intends to offer the evidence and the 
reasoning that supports the purpose.” FRE 404(b)(3)(B) (emphasis added). The notice 
requirement is black-and-white: if the evidence is 404(b), then, the notice requirement 
applies as a prerequisite for admission, absent a showing by the government of good 
cause for the failure to give written notice before trial. Here, there was no pretrial 404(b) 
notice related to exhibit 16b whatsoever—oral, written, with or without reasoning, and 
there was no good cause for the failure. 
IV. 
Conclusion  
For any and all these reasons, the Court should exclude government exhibit 16b.  
 
Dated:   June 17, 2021 
 
 
 
Respectfully submitted, 
 
BIENERT KATZMAN LITTRELL 
WILLIAMS LLP 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
/s/ Ryan V. Fraser  
 
 
 
 
 
 
 
 
 
John L. Littrell  
Ryan V. Fraser 
 
Counsel for Defendant Marietta 
Terabelian 
 
 
 
 
 
 
 
 
 
 
Case 2:20-cr-00579-SVW     Document 545     Filed 06/17/21     Page 7 of 7   Page ID
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