RESPONSE IN OPPOSITION to Joinder (Motion Related), 347 , Joinder (Motion Related),… — USA v. Ayvazyan et al (Dkt. 352)

Summary

The Government's Memorandum in Opposition to Motions for Joinder [ECF 346, 347, 348 and 350], Document 352, filed 05/20/21 in No. CR 20-579(A)-SVW in the United States District Court for the Central District of California. The memorandum opposes motions by Manuk Grigoryan, Vahe Dadyan, Edvard Paronyan, Artur Ayvazyan and Tamara Dadyan to join Richard Ayvazyan and Marietta Terabelian's Motion for a Kastigar Hearing, to Disqualify the Prosecution Team, and to Dismiss. It states that Ayvazyan and Terabelian moved on May 17, 2021 and that the joinder motions do not allege that the moving defendants were compelled to make any statement. It argues that the Court should reject the joinder motions because criminal defendants lack standing to assert a violation of another individual's Fifth Amendment rights.

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

Record facts

Full text

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
TRACY L. WILKISON 
Acting United States Attorney 
BRANDON D. FOX 
Assistant United States Attorney 
Chief, Criminal Division 
SCOTT PAETTY (Cal. Bar No. 274719) 
CATHERINE AHN (Cal. Bar No. 248286) 
BRIAN FAERSTEIN (Cal. Bar No. 274850) 
Assistant United States Attorneys 
Major Frauds/Environmental and Community Safety Crimes Sections 
1100/1300 United States Courthouse 
312 North Spring Street 
Los Angeles, California 90012 
Telephone: (213) 894-6527/2424/3819 
Facsimile: (213) 894-6269/0141 
E-mail: 
Scott.Paetty@usdoj.gov 
 
Catherine.S.Ahn@usdoj.gov 
 
Brian.Faerstein@usdoj.gov 
 
DANIEL S. KAHN 
Acting Chief, Fraud Section 
Criminal Division, U.S. Department of Justice 
CHRISTOPHER FENTON 
Trial Attorney, Fraud Section 
Criminal Division, U.S. Department of Justice 
1400 New York Avenue NW, 3rd Floor 
Washington, DC 20530 
Telephone: (202) 320-0539 
Facsimile: (202) 514-0152 
E-mail: 
Christopher.Fenton@usdoj.gov 
 
Attorneys for Plaintiff 
UNITED STATES OF AMERICA 
 
UNITED STATES DISTRICT COURT 
 
FOR THE CENTRAL DISTRICT OF CALIFORNIA 
 
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, 
  aka “Mike Grigoryan,” and 
No. CR 20-579(A)-SVW 
GOVERNMENT’S MEMORANDUM IN 
OPPOSITION TO MOTIONS FOR JOINDER 
[ECF 346, 347, 348 AND 350]   
Case 2:20-cr-00579-SVW     Document 352     Filed 05/20/21     Page 1 of 5   Page ID
#:3547

 
 
2 
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
      “Anton Kudiumov,” 
ARMAN HAYRAPETYAN, 
EDVARD PARONYAN, 
aka “Edvard Paronian” and 
    “Edward Paronyan,” and 
VAHE DADYAN, 
 
Defendants. 
 
The United States hereby submits this memorandum in opposition 
to defendants Manuk Grigoryan’s, Vahe Dadyan’s, Edvard Paronyan’s, 
Artur Ayvazyan’s, and Tamara Dadyan’s (collectively, the “moving 
defendants”) motions to join defendants Richard Ayvazyan and Marietta 
Terabelian’s “Motion for a Kastigar Hearing, to Disqualify the 
Prosecution Team, and to Dismiss.”  (ECF 346, 347, 348, and 350.) 
I. 
Introduction 
On May 17, 2021, Ayvazyan and Terabelian moved the Court for a 
Kastigar hearing premised on the Court’s finding that they were 
coerced into providing border agents with their cellular telephone 
pass codes.  (ECF 338.)  See Kastigar v. United States, 406 U.S. 441 
(1972).  On May 19 and 20, 2021, the moving defendants applied to 
join Ayvazyan and Terabelian’s motion.  (ECF 346, 347, 348, and 350.)  
The motions for joinder do not allege that the moving defendants were 
compelled to make any statement to law enforcement – much less a 
testimonial statement compelled by a grant of immunity.  Instead, 
they argue that the government should be required to prove that they 
were not prejudiced by what the Court found to be a violation of 
Ayvazyan’s and Terabelian’s Fifth Amendment rights.  As set forth 
below, the Court should reject the moving defendants’ motions for 
Case 2:20-cr-00579-SVW     Document 352     Filed 05/20/21     Page 2 of 5   Page ID
#:3548

 
 
3 
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
joinder because criminal defendants lack standing to assert a 
violation of another individual’s Fifth Amendment rights.1  
II. 
Argument 
The moving defendants should not be permitted to participate in 
any Kastigar hearing relating to statements made by Ayvazyan and 
Terabelian because “[i]t has long been settled that the privilege 
against self-incrimination is personal to the witness.”  Bowman v. 
United States, 350 F.2d 913, 915 (9th Cir. 1965) (denying standing to 
raise objection to improper denial of another’s right to “take the 
Fifth”); see also Moran v. Burbine, 475 U.S. 412, 433 n.4 (1986) 
(noting “the elemental and established proposition that the privilege 
against compulsory self-incrimination is, by hypothesis, a personal 
one that can only be invoked by the individual whose testimony is 
being compelled”).   
In In re Grand Jury Subpoena Dated August 14, 2019, the Eighth 
Circuit rejected the same argument advanced by the moving defendants 
when it held that the Fifth Amendment did not prohibit the government 
from offering statements compelled by several police officers in an 
excessive force investigation of another officer.  964 F.3d 768 (8th 
Cir. 2020).  Specifically, the court held “the privilege [against 
self-incrimination] only prohibits the use of compelled statements 
and their fruits against the person making the compelled statements.  
Therefore it does not prohibit a grand jury or government 
 
1 The government hereby incorporates by reference the arguments 
that it raised in its motion for reconsideration. (ECF 344.)  The 
government submits that the motions for joinder should be denied 
because no Kastigar hearing should be held as to any defendant.  
While preserving the argument that no Kastigar hearing should be 
held, this submission addresses the moving defendants’ lack of 
standing even if a Kastigar hearing for defendants Ayvazyan and 
Terabelian is held.   
Case 2:20-cr-00579-SVW     Document 352     Filed 05/20/21     Page 3 of 5   Page ID
#:3549

 
 
4 
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
investigators from using compelled statements of other officers 
against the target of the investigation.”  Id. at 772 (emphasis in 
original).2  Kastigar itself made clear that its independent source 
doctrine applied only to statements made by a defendant who was 
compelled to make a statement under a grant of immunity: “Immunity 
from the use of compelled testimony, as well as evidence derived 
directly and indirectly therefrom, affords this protection.  It 
prohibits the prosecutorial authorities from using the compelled 
testimony in any respect, and it therefore insures that the testimony 
cannot lead to the infliction of criminal penalties on the witness.”  
Kastigar, 406 U.S. at 453 (emphasis added).   
The unstated premise of the moving defendants’ argument is that 
the government is prohibited from using compelled testimony – or 
investigative leads derived from compelled testimony – in any 
criminal investigation of any person.  That proposition is perfectly 
at odds with 18 U.S.C. §§ 6002 and 6003, which permit courts, upon an 
application of the Attorney General, to immunize and compel a witness 
to testify in a criminal case.3  Kastigar emphasized the important 
and legitimate law enforcement functions that these statutes serve: 
“[a]mong the necessary and most important of the powers of the States 
as well as the Federal Government to assure the effective functioning 
of government in an ordered society is the broad power to compel 
residents to testify in court or before grand juries or agencies.”  
406 U.S. at 444.  Requiring the government to make a Kastigar showing 
 
2 Grigoryan’s motion cites United States v. Montoya, but that 
case made clear that its decision did not address the Fifth Amendment 
standing of the defendant who did not make a statement under 
compulsion.  45 F.3d 1286, 1291 n.4 (9th Cir. 1995).   
3 Why would Congress create a procedure for prosecutors to 
obtain evidence which they could never use? 
Case 2:20-cr-00579-SVW     Document 352     Filed 05/20/21     Page 4 of 5   Page ID
#:3550

 
 
5 
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
in any case in which it exercised 18 U.S.C.§§ 6002 and 6003 would 
render these important powers meaningless.      
III. Conclusion 
For the foregoing reasons, the Court should deny the motions to 
join filed as ECF 346, 347, 348 and 350.     
 Dated: May 20, 2021 
Respectfully submitted, 
 
TRACY L. WILKISON 
Acting United States Attorney 
 
BRANDON D. FOX 
Assistant United States Attorney 
Chief, Criminal Division 
 
 
      /s/ 
 
SCOTT PAETTY 
CATHERINE AHN 
BRIAN FAERSTEIN 
Assistant United States Attorneys 
CHRISTOPHER FENTON 
Department of Justice Trial Attorney 
 
Attorneys for Plaintiff 
UNITED STATES OF AMERICA 
 
 
 
Case 2:20-cr-00579-SVW     Document 352     Filed 05/20/21     Page 5 of 5   Page ID
#:3551

File and source

File

gov.uscourts.cacd.802533.352.0.pdf

Size

123,207 bytes

SHA-256

caf0cc1b9affc6d3247d2c2014873189290d52e26ab9e44af7a14807bebd5343

Our copy

gov.uscourts.cacd.802533.352.0.pdf

Original

PACER (login required)