REPLY In Support of NOTICE OF MOTION AND MOTION for Order for 1362 — USA v. Ayvazyan et al (Dkt. 1370)

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A Reply in Support of Surety Gohar Abelian's Motion to Set Aside Bond Forfeiture, Document 1370 filed 04/24/23 in United States v. Richard Ayvazyan, et al., Case No. 2:20-cr-579-SVW, before Hon. Stephen V. Wilson in the Central District of California, submitted by Carlo Brooks as attorney for the surety. The reply argues that the Court should reject the government's opposition as untimely, saying the government's deadline was April 17, 2023 and it filed its opposition on April 21, 2023. It also argues that Ms. Abelian qualifies for relief under the six non-exclusive factors the Ninth Circuit considers in deciding whether to set aside or remit the forfeiture of a bond. The caption lists a hearing date of May 8, 2023, and the motion was filed under seal on March 28, 2023.

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Carlo Brooks, CA Bar # 316485
3826 Grand View Boulevard, Suite 661472
Los Angeles, CA 90066
(310) 691-9373
carlo@carlobrooks.com
Attorney for Surety,
GOHAR ABELIAN
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
v.
RICHARD AYVAZYAN,
et al.,
Defendants.
Case No.: 2:20-cr-579-SVW
REPLY IN SUPPORT OF
SURETY GOHAR ABELIAN’S
MOTION TO SET ASIDE BOND
FORFEITURE PURSUANT TO
FEDERAL RULE OF CRIMINAL
PROCEDURE 46(f)(2) AND
FEDERAL RULE OF CIVIL
PROCEDURE 60(b)
Judge: Hon. Stephen V. Wilson
Hearing Date: May 8, 2023
Time: 11:00 a.m.
                                                                                                                                
REPLY – MOTION TO SET ASIDE BOND FORFEITURE
Case 2:20-cr-00579-SVW     Document 1370     Filed 04/24/23     Page 1 of 9   Page ID
#:20771

REPLY MEMORANDUM OF POINTS AND AUTHORITIES
The government does not dispute that this Court has considerable latitude in
managing the parties’ motion practice and enforcing local rules by declining to
consider untimely briefs. Yet the government has filed an untimely opposition in
which it requests leave, for no cause shown, to file an untimely motion for entry of
bond forfeiture judgment against Ms. Abelian.
The government also does not seriously dispute that Ms. Abelian qualifies for
relief under the non-exclusive factors the Ninth Circuit considers in determining
whether the court should exercise its discretion to set aside or remit the forfeiture of
a bond. The government’s opposition fails to disturb any of Ms. Abelian’s key
arguments. Accordingly, Ms. Abelian’s arguments should be sustained, and the
Court should ​set aside or remit the forfeiture of the bonds as to Ms. Abelian
I.
THIS
COURT
SHOULD
REJECT
THE
GOVERNMENT’S
OPPOSITION AS UNTIMELY UNDER THE LOCAL RULES
Ms. Abelian filed the Motion under seal on March 28, 2023 and provided
notice to the government that the Motion would be heard by this Court on May 2,
2023, or as soon thereafter as counsel may be heard. (Dkt. 1362 at 1.) On April 6,
2023, the Court issued a Scheduling Notice granting the Application to Seal and
setting the Motion to Set Aside for hearing on May 8, 2023 at 11:00 a.m. (Dkt.
1366.)
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REPLY – MOTION TO SET ASIDE BOND FORFEITURE
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#:20772

Pursuant to Local Rule 7-9, the government was required to file and serve
either an opposition brief or a written statement that the government does not
oppose the Motion no later than twenty-one (21) days before the date designated for
the hearing of the Motion. The government’s deadline was therefore April 17, 2023.
Nevertheless, the government unapologetically filed its opposition on April 21,
2023.
The Court has discretion to decline to consider an untimely opposition and to
deem a failure to file a timely opposition to constitute consent to the granting of a
motion.
See
L.R.
7-12;
LeSter
v.
Safeco
Ins.
Co.
of
Am.,
No.
CV
21-6387-RSWL(Ex), 2022 U.S. Dist. LEXIS 235727, at *2 (C.D. Cal. Aug. 23,
2022); see also Hamilton v. Exec. Process, LLC, 828 F. App’x 415, 415 (9th Cir.
2020) (quoting Christian v. Mattel, Inc., 286 F.3d 1118, 1129 (9th Cir. 2002)) (“The
district court did not abuse its discretion in rejecting Hamilton’s summary judgment
response as untimely under its local rules. . . . [The] ‘district court has considerable
latitude in managing the parties’ motion practice and enforcing local rules’.”)
Therefore, in keeping with its prior decisions in this regard, the Court should
deem the government’s unexcused tardiness as “consent to the granting . . . of the
motion.” Potter v. H & R Block, No. 2:16-cv-00470-SVW-AFM, 2016 U.S. Dist.
LEXIS 204042, at *3-4 (C.D. Cal. Mar. 2, 2016).
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REPLY – MOTION TO SET ASIDE BOND FORFEITURE
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#:20773

II.
MS. ABELIAN HAS SHOWN THAT APPLICATION OF THE NINTH
CIRCUIT’S SIX-FACTOR TEST SUPPORTS SETTING ASIDE THE
BOND JUDGMENT
The Ninth Circuit considers six non-exclusive factors in determining whether
the court should exercise its discretion to set aside or remit the forfeiture of a bond:
1) the defendant’s willfulness in breaching a release condition;
2) the sureties’ participation in apprehending the defendant;
3) the cost, inconvenience, and prejudice suffered by the government;
4) mitigating factors;
5) whether the surety is a professional or a member of the family or a
friend, and
6) the appropriateness of the amount of the bond.
United States v. Amwest Sur. Ins. Co., 54 F.3d 601, 603 (9th Cir. 1995) (citations
omitted); see also United States v. Nguyen, 279 F.3d 1112, 1115-16 (9th Cir. 2002).
Not all of the factors need to be resolved in the surety’s favor in order grant a
request to set aside or remit the bond. Amwest, 54 F.3d at 603; United States v.
Dobadzhyan, 708 F. App’x 915, 916 (9th Cir. 2017) (finding that four factors
weighed in favor of forfeiture, one factor weighed against forfeiture, and one factor
was irrelevant, district court “acted well within its considerable discretion” in
remitting all of the appearance bond and half of the real estate bond secured by
defendant, his ex-wife, and his daughter, based on “the burden on Dobadzhyan’s
family members” and “the consequences a forfeiture may have on the sureties.”) In
weighing the factors, the court is guided by the primary purposes of the Bail
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REPLY – MOTION TO SET ASIDE BOND FORFEITURE
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#:20774

Reform Act: ensuring the defendant’s appearance in court and observance of the
release conditions. United States v. Vaccaro, 51 F.3d 189, 192-93 (9th Cir. 1995).
Ms. Abelian’s family-member status weighs heavily in support of the her
position
The government concedes Ms. Abelian played no role in the defendants’
breach of their release conditions. See Opp. at 4-5. Accordingly, defendants’
willfulness in breaching those conditions is irrelevant as it cannot be imputed to the
Surety. The circumstances in United States v. Nguyen are simply not present here,
and the Surety’s status as a family member and the guardian of defendants’ children
– who are obviously innocent in this affair – must be given full weight.
Tellingly, the government does not dispute this fact; it merely reiterates the
dictum from Nguyen that a bond surety’s status as a family member of the
defendant is not “dispositive.” Id. at 10. However, the government does not dispute
that family-member status weighs heavily in support of the Surety’s position. As
stated in Vaccaro, the primary purpose of the Bail Reform Act is to ensure the
defendant’s appearance in court, not to punish his innocent family members. The
government knows this. As such, the Court should grant relief.
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REPLY – MOTION TO SET ASIDE BOND FORFEITURE
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#:20775

Whether the FBI case agent received assistance from Ms. Abelian is of
little significance
The government appears to make much hay of its claim that the “FBI case
agent did not receive any assistance from Abelian in his efforts to locate
Defendants.” Id. at 5 n. 5. It states it will “obtain a declaration regarding this factual
statement from the FBI case agent.” Id. However, even if the Court were to
consider the government’s untimely opposition, it should reject any attempt by the
government to introduce an 11th hour self-serving declaration into these
proceedings. Aside from its untimeliness, such declaration would serve no purpose,
as there is no indication Ms. Abelian was in any position to help locate the
defendants overseas.
The Surety’s does not claim her lack of financial resources should excuse
the defendants’ liability for any bond violation
The government references several scabrous articles from the press as “factors
that argue in favor of forfeiture.” Id. at 10; id., n. 9, 10. These articles supposedly
support the proposition that the “deterrence value” of “total forfeiture” is
“especially important in high-profile criminal cases.” Id. at 10. Yet whether
defendants’ actions “generated considerable media exposure” is irrelevant to Ms.
Abelian’s qualifications for relief under Ninth Circuit law. Through no fault of her
own, Ms. Abelian has been disserved by negative media exposure, not aided by it;
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as it makes it that much harder for Ms. Abelian to generate the income needed to
care for herself and defendants’ children.
III.
THE COURT SHOULD NOT PERMIT THE GOVERNMENT TO FILE
AN UNTIMELY MOTION FOR ENTRY OF BOND FORFEITURE
JUDGMENT AGAINST MS. ABELIAN
The government admits it “does not object if the Court issues an order
vacating the Bond Forfeiture Judgments without prejudice (as to Abelian only) and
denies her motion without prejudice.” Id. at 14 n. 7. The government thus concedes
it cannot dispute that Ms. Abelian was not served with the bail bond forfeiture
papers. If it could dispute this, it would.
Based upon this key concession, Ms. Abelian should not be held liable for the
bail bond forfeitures. Yet the government seeks leave to file a “new motion” so the
Court can “consider anew whether to enter such judgments against Abelian.” Id.
Yet such a motion for the entry of bond forfeiture judgment was never filed against
Ms. Abelian. The government is untimely to file such a motion now.
Based on the government’s concession, the Court should issue an order
vacating the bond forfeiture judgments as to Ms. Abelian. However, it should estop
the government from filing an untimely – and improper – motion for entry of bond
forfeiture judgment against Ms. Abelian.
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REPLY – MOTION TO SET ASIDE BOND FORFEITURE
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#:20777

IV.
CONCLUSION
For the reasons set forth above, the Court should exercise its discretion to set
aside or remit the forfeiture of the bonds as to Ms. Abelian.
Dated: April 24, 2023
Respectfully submitted,
/s/ Carlo Brooks  
Carlo Brooks, Esq.
3826 Grand View Bl, Ste 661472
Los Angeles, CA 90066
(310) 691-9373
carlo@carlobrooks.com
Attorney for Surety,
Gohar Abelian
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REPLY – MOTION TO SET ASIDE BOND FORFEITURE
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#:20778

CERTIFICATE OF SERVICE
I certify that I served a copy of this document and its attachments on the
Court and all parties by filing this document with the Clerk of the Court through the
CM/ECF system, which will provide electronic notice and an electronic link to this
document to all counsel of record.
DATED: April 24, 2023
Respectfully submitted,
/s/ Carlo Brooks        
Carlo Brooks, Esq.
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REPLY – MOTION TO SET ASIDE BOND FORFEITURE
Case 2:20-cr-00579-SVW     Document 1370     Filed 04/24/23     Page 9 of 9   Page ID
#:20779

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