Opposition to Joint Notice of Motion and Motion to Exclude — USA v. Ayvazyan et al. (Dkt. 391, C.D. Cal.)

Record facts

U.S. District Court for the Central District of California · No. 2:20-cr-00579-SVW · Doc. 391 · 2021-05-31 · Docket on CourtListener

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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) 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 MOTION TO EXCLUDE 
DIGITAL DEVICE FILES FROM DEVICES 
OBTAINED ON NOVEMBER 5, 2020    
(ECF 363) 
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      “Anton Kudiumov,” 
ARMAN HAYRAPETYAN, 
EDVARD PARONYAN, 
aka “Edvard Paronian” and 
    “Edward Paronyan,” and 
VAHE DADYAN, 
 
Defendants. 
 
Plaintiff 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 this memorandum in 
opposition to defendants Richard Ayvazyan, Marietta Terabelian, Artur 
Ayvazyan, and Tamara Dadyan’s “motion to exclude digital device files 
from devices obtained on November 5, 2020.” (ECF 363.) 
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This opposition is based upon the attached memorandum of points 
and authorities and exhibits, the files and records in this case, and 
such further evidence and argument as the Court may permit.   
Dated: May 31, 2021 
Respectfully submitted, 
 
TRACY L. WILKISON 
Acting United States Attorney 
 
SCOTT M. GARRINGER 
Assistant United States Attorney 
Chief, Criminal Division 
 
 
 
   /s/    
 
SCOTT PAETTY 
CATHERINE S. AHN 
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 
DESCRIPTION 
PAGE 
 
TABLE OF AUTHORITIES...............................................ii 
MEMORANDUM OF POINTS AND AUTHORITIES................................1 
I. 
Introduction...................................................1 
II. 
Statement of Facts.............................................2 
A. 
The Search Warrants.......................................2 
B. 
The Government’s Review and Production of Evidence 
from Digital Devices, Including the Four Digital 
Devices Subject to Defendants’ Motion.....................3 
C. 
Defendants’ Prior Motions to Exclude Digital Evidence.....7 
III. Argument.......................................................7 
A. 
The Length of the Government’s Examination of the 
Digital Devices Was “Reasonable” under the Fourth 
Amendment.................................................8 
B. 
The Defendants’ Process Argument Fails Because the 
Warrant Authorized Prosecutors to Participate in the 
Search of the Digital Devices............................13 
C. 
Defendants’ Request for Exclusion Based on Rule 16 and 
the Court’s Orders Is Frivolous..........................15 
D. 
The Court has Already Ordered a Post-trial Kastigar 
Hearing..................................................18 
IV. 
Conclusion....................................................18 
 
 
 
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TABLE OF AUTHORITIES 
DESCRIPTION 
PAGE 
CASES 
United States v. Aboshady, 951 F.3d 1 (1st Cir. 2020)..........14, 15 
United States v. Burns, No. 07 CR 556, 2008 WL 4542990                   
(N.D. Ill. Apr. 29, 2008)..............................9, 11, 12 
United States v. Gorrell, 360 F. Supp. 2d 48 (D.D.C. 2004)..........9 
United States v. Mutschelknaus, 564 F. Supp. 2d 1072                
(D.N.D. 2008).................................................10 
United States v. Nepstead, 424 F.2d 269 (9th Cir. 1970)............10 
United States v. Stefanson, 648 F.2d 1231 (9th Cir. 1981)..........11 
United States v. Syphers, 426 F.3d 461 (1st Cir. 2005).............10 
United States v. Triumph Capital Group, Inc., 211 F.R.D. 31            
(D. Conn. 2002).......................................10, 11, 12 
STATUTES 
Fed R. Crim. P. 41.................................................11 
 
 
 
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MEMORANDUM OF POINTS AND AUTHORITIES 
I. 
Introduction 
There is overwhelming evidence of defendants’ guilt contained in 
four smartphones that were lawfully seized from defendants’ 
residences pursuant to warrants that this Court has already found to 
be constitutionally valid.  The evidence includes digital photographs 
of fake identification documents and fraudulently obtained credit 
cards in the names of synthetic identities used to commit fraud; 
digital photographs of fraudulently submitted COVID-19 disaster 
relief loan applications; text messages between certain of the 
defendants detailing the manner and means of the charged conspiracies 
and schemes; and digital photographs of the templates used by 
defendants to create the fake identification documents, payroll 
reports, and tax forms used in furtherance of the fraud. (See, e.g., 
Declaration of Christopher Fenton (“Fenton Decl.”) ¶¶ 1-4, Exs. 1-7 
(examples of digital photographs seized from defendants’ 
smartphones).) 
The government produced a complete forensic copy of the four 
smartphones to the four defendants approximately four and a half 
months prior to the current trial so that the four defendants and 
their counsel could conduct their own examination of the smartphones.  
The government has also produced to all eight defendants summary 
reports of the contents that are searchable and organize the data by 
file type. The government has now completed its responsiveness 
review, approximately five weeks early, and produced to all eight 
defendants a follow-up report, showing which of the previously-
disclosed discovery materials the government seized from these four 
smartphones.  Tomorrow the government is producing to defendants, two 
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weeks before trial, a copy of the trial exhibits that the government 
created using the evidence from the four smartphones belonging to 
these four defendants, which are a subset of the materials that they 
received in discovery months ago.   
Facing overwhelming evidence and decades of imprisonment, 
defendants resort to their now familiar tactic of demanding the Court 
impose the drastic sanction of exclusion based on frivolous 
allegations of prosecutorial misconduct.  Defendants also ask the 
Court to reconsider its prior opinions and orders finding that the 
search warrants for the smartphones were constitutionally valid (ECF 
296, 297), without providing a legitimate basis for the request or a 
compelling reason for the Court to reconsider and reverse itself.  
Defendants’ motion is frivolous and meritless and should be denied. 
II. 
Statement of Facts 
A. 
The Search Warrants 
On November 3, 2020, the United States obtained warrants to 
search defendants’ respective residences in Tarzana and Encino.  (See 
ECF 363, Ex. A, 2:20-MJ-05282, Ex. B, 2:20-MJ-05286.)  Attachment B 
to the warrants set forth detailed categories of items authorized to 
be seized, including digital devices.  The “search procedure” laid 
out in the fourth paragraph of Attachment B authorized executing 
parties to either search the digital devices on-site or “seize and 
transport the device(s) and/or forensic image(s) thereof to an 
appropriate law enforcement laboratory or similar facility to be 
searched at that location.”  The “search procedure” also stipulated 
that “[t]he search team shall complete the search as soon as is 
practicable but not to exceed 120 days from the date of execution of 
the warrant.  The government will not search the digital device(s) 
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and/or forensic image(s) thereof beyond this 120-day period without 
obtaining an extension of time order from the Court.” 
Of particular relevance to the defendants’ motion, paragraph 5 
of Attachment B specifically authorized prosecutors to participate in 
the search of the electronic devices: “[t]he review of the electronic 
data obtained pursuant to this warrant may be conducted by any 
government personnel assisting in the investigation, who may include, 
in addition to law enforcement officers and agents, attorneys for the 
government, attorney support staff, and technical experts.”  
(emphasis added).   
On November 5, 2020, federal agents executed the warrant and 
recovered, among other things, dozens of digital devices, including 
the four cellular telephones that are the subject of this motion 
(hereinafter “the Four Digital Devices”).  Rather than reviewing the 
electronic materials on the premises, agents seized the devices, and 
the FBI’s Computer Analysis and Response Team (“CART”) made digital 
copies, which the warrants authorized.   
B. 
The Government’s Review and Production of Evidence from 
Digital Devices, Including the Four Digital Devices Subject 
to Defendants’ Motion. 
The government produced a complete forensic copy of each of the 
digital devices to these four defendants so that their respective 
counsel had timely access to all of the data on the devices and could 
conduct their own review and examination.  At the time the government 
began producing these complete forensic copies to defendants, counsel 
asked if the government had generated “reports” (e.g., using software 
called Cellebrite) of the data contained on the devices.  On January 
4, 2021, the government explained that, after it produced to 
defendants a copy of the complete forensic image, it would follow up 
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with a copy of any such Cellebrite reports if the government 
generated such information: “We have not yet produced any of these 
types of reports because the government has prioritized providing the 
defense with complete forensic copies of the devices and therefore 
has not yet completed its own review of the devices.  We will produce 
any discoverable reports generated as part of the government’s review 
of the devices once the government’s review is complete and such 
reports are generated.”  (Fenton Decl. ¶ 5, Ex. 8.)  Defendants did 
not seek any relief from this Court at that time. 
When, in February 2021, the government began to produce these 
Cellebrite reports to defendants (as the government said it would), 
it explained that it had asked an independent filter team to review 
the Cellebrite reports first for potentially privileged material 
before they were made available to the prosecution team.  (Fenton 
Decl. ¶ 6, Ex. 9 (Feb. 26, 2021 Letter).)  The government used an 
independent filter team to review certain of the defendants’ digital 
devices, including the Four Digital Devices, both in an abundance of 
caution and in recognition of defendant Richard Ayvazyan’s claim 
following the execution of a search warrant at his residence that he 
possessed potentially privileged information.  Because some of the 
potentially privileged communications might have been in Armenian, 
the independent filter team used an Armenian speaker to conduct the 
review.  Again, defendants did not seek any relief from this Court at 
that time.  
On March 4, 2021 the government sought and received its first 
and only request for an extension of time to complete its search, 
which allowed the government to continue searching up to and 
including July 3, 2021.  (See ECF 363, Ex. C, 2:20-MJ-05282.)  The 
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government sought the extension using the same method it had used to 
obtain the search warrants, namely by submitting an ex parte 
application to the magistrate judge.  In its submission, the 
government explained that it had seized dozens of digital devices and 
that more time was needed to complete its responsiveness review 
because: 
• as of that time, only three devices had been completely 
processed and filter reviewed for privilege, and the 
remaining digital devices were still being imaged and 
processed by CART and reviewed by the filter team; 
 
• the forensic review of digital devices was time consuming and 
required specialized computer software and training, and, in 
some cases, required additional time to decrypt encrypted 
devices; 
 
• the filter review process involved a thorough review of the 
data contained on the devices to ensure that the 
responsiveness review team was not tainted by the release of 
privileged material; and 
 
• the FBI CART team’s resources had been stretched due to the 
huge influx of devices that were seized during investigations 
arising out of the January 6, 2021 insurrection at the U.S. 
Capitol in Washington, D.C. 
(See id.) 
The government submitted its ex parte application under seal.  
In its application to seal, the government explained to the 
magistrate judge that its investigation had so far yielded an 
indictment of four individuals in United States v. Ayvazyan, CR 20-
579-SVW, that the investigation was ongoing, and that the government 
was evaluating whether to supersede to add more defendants and more 
fraudulent loans.  The government further disclosed to the magistrate 
judge that the government had already produced a copy of the search 
warrants to the four defendants in discovery, and requested that the 
search warrants remain under seal and that the application be filed 
under seal while the government completed its investigation and 
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sought additional charges:  
 
The search warrants in this case remain under seal.  The 
affidavits have been produced to the defendants; however, this 
production was subject to a protective order that restricts 
their dissemination.  If this application were made public 
before any additional charging decisions can be made, there is a 
significant risk that the case would be jeopardized by, among 
other reasons, potentially alerting additional subjects that the 
investigation is ongoing. 
 
(See ECF 363, Ex. D, 2:20-MJ-05282.)  The government’s application 
was granted, and the government was given until July 3, 2021 to 
complete its responsiveness review. 
The government subsequently decided to focus on one of the 
digital devices belonging to each of the four original defendants and 
selected the Four Digital Devices that are the subject of the instant 
motion.  (Fenton Decl. ¶ 7, Ex. 10 (Apr. 26, 2021 Letter).)  The 
complete forensic copy of the Four Digital Devices had already been 
produced to defendants on February 1, 2021, so that defendants could 
conduct their own examination.  (ECF 363, Ex. F.)  The independent 
filter team then generated Cellebrite reports for each of the Four 
Digital Devices and redacted from those reports any potentially 
privileged communications.  On April 30, 2021, as soon as the 
independent filter team completed its review and released the 
redacted Cellebrite reports to the prosecution team, the prosecution 
team produced the reports to defendants.  (Fenton Decl. ¶ 8, Ex. 11.)  
The prosecution team then reviewed the Cellebrite reports for each of 
the Four Digital Devices and identified the materials it intended to 
seize pursuant to the search warrants.  The prosecution team 
completed its responsiveness review of these Four Digital Devices 
approximately five weeks before the July 3 deadline.  And on May 26, 
2021, the government reproduced to defendants a further redacted copy 
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of the Cellebrite reports for each of the Four Digital Devices that 
included only the limited subset of information it was seizing 
pursuant to the search warrants. (Fenton Decl. ¶ 9, Ex. 12.)    
C. 
Defendants’ Prior Motions to Exclude Digital Evidence 
On March 11, 2021, the defendants moved to suppress evidence 
recovered from the Tarzana and Encino residences, including the Four 
Digital Devices, on the ground that the warrants lacked particularity 
and were overbroad.  (ECF 146, 149.)  Defendants also argued for 
suppression of the evidence on the Four Digital Devices, among 
others, based on their claim that the magistrate judge’s extension of 
time was invalid and that allowing the government to continue its 
review violated the Court’s discovery cutoff.  (ECF 146 at 23-24; 149 
at 11-12; ECF 222 at 14-15.)  The Court denied defendants’ motions, 
ruling that the warrants were sufficiently particular and were not 
overbroad, and rejecting defendants’ arguments that the warrants had 
been executed in an unreasonable manner.  (ECF 296, 297.)  Defendants 
separately moved to exclude evidence based on allegations of undue 
delay and prosecutorial misconduct.  (ECF 248, ECF 289.)  The Court 
denied defendants’ motions.  
In the instant motion (ECF 363), defendants, once again, move 
the Court to suppress the contents of the digital devices and raise 
the same arguments that the Court already rejected.   
III. Argument 
Although styled as a “motion to exclude digital device files 
from devices obtained on November 5, 2020,” the defendants’ pleading 
is, in essence, another motion to suppress evidence that the Court 
has already deemed to have been seized in compliance with the Fourth 
Amendment.  (See ECF 296).  The defendants’ pleading is lengthy and 
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the government finds the precise bases for suppression difficult to 
ascertain.  Nonetheless, it appears the defendants are making two 
primary arguments for suppression: 1) the delay between the date that 
the government seized the digital devices and when it examined their 
contents renders the search “unreasonable” under the Fourth 
Amendment; and 2) the search protocol that the government applied to 
the devices was improper because prosecutors – not agents – searched 
the devices for potential trial exhibits.  Both arguments rely on 
faulty factual and legal premises.   
A. 
The Length of the Government’s Examination of the Digital 
Devices Was “Reasonable” under the Fourth Amendment.   
 
Defendants argue that the Court should take the drastic action 
of excluding overwhelming evidence of their guilt that is contained 
on the Four Digital Devices because the government did not review the 
data as soon as practicable.  (ECF 363 at 5.)  The government’s 
review, however, was timely because it sought and obtained in good 
faith a court order extending the time to complete its responsiveness 
review until July 3, 2021 – and then completed that review 
approximately five weeks early.   
Unable to dispute the fact of the extension, defendants instead 
argue that the extension was “invalid.”  (ECF 363 at 5-6.)  
Defendants do not seriously challenge the underlying reasons for why 
the government requested a one-time extension.1  Rather, defendants 
 
1 For example, defendants assert – without any factual basis – 
that the January 6, 2021 insurrection at the U.S. Capitol in 
Washington, D.C. did not actually result in an increased workflow 
that placed competing demands on the CART team’s time and resources.  
Baseless conjecture should not be credited in a motion seeking 
drastic sanctions like the exclusion of overwhelming evidence of 
guilt. 
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allege that the extension was “obtained by deceiving the Court.”  
(Id.)  Like the myriad allegations of prosecutorial misconduct that 
the Court has already considered and rejected, these allegations are 
also without basis in fact.   
Defendants’ primary argument is that the government should have 
told the magistrate judge about the Court’s March 15 discovery cutoff 
and the May 4 trial date.  Defendants, however, fail to explain how 
or why such information would have been material to the question 
before the magistrate judge:  whether the government had good cause 
to request a one-time extension to complete its responsiveness review 
based on the facts and circumstances.  Moreover, the government 
simply had nothing to hide from the magistrate judge.  It had already 
produced to defendants on February 1, 2021 a complete copy of the 
forensic image of the Four Digital Devices so that defendants could 
conduct their own examination and, at the time that the government 
submitted its application on March 4, 2021, the District had not yet 
resumed jury trials.   
In any event, even putting aside the magistrate’s order granting 
an extension, any delay in completion of the government’s review of 
the digital evidence does not render the search “unreasonable” under 
the Fourth Amendment because the passage of time did not result in an 
expiration of probable cause.  Neither the Fourth Amendment nor Rule 
41 of the Federal Rules of Criminal Procedure places per se limits on 
the duration of any forensic analysis, and the courts have upheld 
forensic analysis begun months after investigators acquired a 
computer or data.  See United States v. Burns, No. 07 CR 556, 2008 WL 
4542990, at *8-9 (N.D. Ill. Apr. 29, 2008) (ten month delay); United 
States v. Gorrell, 360 F. Supp. 2d 48, 55 n.5 (D.D.C. 2004) (same).  
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Rather than applying rigid time limits, courts assess whether delays 
in forensic analyses were “reasonable” under the circumstances.  
United States v. Mutschelknaus, 564 F. Supp. 2d 1072, 1077 (D.N.D. 
2008).   
The Ninth Circuit and other appellate courts view the 
dissipation of probable cause as the chief measure of 
“reasonableness” when assessing whether the length of a search 
violated the Fourth Amendment.  In United States v. Nepstead, for 
example, the Ninth Circuit held that a search was “reasonable” 
despite a delay in execution because the passage of time did not 
impact the probable cause determination: 
In the case before us, nothing, other than the passage 
of time, occurred during the six-day period between 
issuance and execution of the search warrant which 
changed the facts upon which the original affidavit 
was based and which gave the agents probable cause to 
believe that articles subject to seizure were in the 
house.  And, on the facts before us, the passage of 
time could not detract from probable cause because the 
house was kept under surveillance for signs of 
activity. 
 
424 F.2d 269, 271 (9th Cir. 1970).  In United States v. Syphers, 
the First Circuit employed similar reasoning in assessing whether a 
five-month delay in searching a computer already in police custody 
attributable to a “backlog” at the laboratory rendered the search 
“unreasonable.”  426 F.3d 461, 469 (1st Cir. 2005).  The panel ruled 
that the “the five-month delay did not invalidate the search of 
appellant’s computer because there is no showing that the delay 
caused a lapse in probable cause, that it created prejudice to the 
defendant, or that federal or state officers acted in bad faith to 
circumvent federal requirements.”  Id.; see also United States v. 
Triumph Capital Group, Inc., 211 F.R.D. 31, 66 (D. Conn. 2002) 
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(“[t]he purpose of Fed R. Crim. P. 41(c)(1)’s time limitation is to 
prevent a stale warrant”).2   
Here, the defendants do not allege that passage of time negated 
probable cause, nor can they.  This is because the government had 
probable cause on the day that it seized the devices, as the Court 
held when it denied defendant’s prior motion to suppress evidence 
from the premises searches.  (ECF 296 at 18-22; ECF 297 at 2-6.)   
Any delay in reviewing their contents in no way impacted the initial 
probable cause determination.  Delayed reviews of copied digital 
evidence cannot impact the initial probable cause determination 
because the act of copying devices essentially “freezes” the evidence 
in time.  Burns, 2008 WL 4542990 at *9 (“the delay [in reviewing 
digital evidence] in this case was certainly lengthy and the 
government does not give any reason for the delay.  However, Burns 
does not assert that the time lapse affected the probable cause to 
search the computer (nor could he, given that suspected child 
pornography had already been found on the hard drive), that the 
government has acted in bad faith, or that he has been prejudiced in 
any way by the delay, and the warrant does not specify a date by 
which the search must have been conducted”); Triumph Capital, 211 
F.R.D. at 66 (“when the mirror image was made within the ten-day 
period the evidence was frozen in time.  Thus, there was no danger 
 
2 More broadly, violations of Rule 41 do not require suppression 
unless: “(1) there was ‘prejudice’ in the sense that the search might 
not have occurred or would not have been so abrasive if the rule had 
been followed, or (2) there is evidence of intentional and deliberate 
disregard of a provision of the Rule.”  United States v. Stefanson, 
648 F.2d 1231, 1235 (9th Cir. 1981) (magistrate judge’s failure to 
record affiant’s oath in violation of Rule 41 did not warrant 
suppression).   
 
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that probable cause ceased to exist during the search of the hard 
drive”).  As in Burns and Triumph Capital, the quality of the 
evidence did not degrade as a result of the time it took to examine 
the devices because the government made copies of the media.  Unlike 
some forms of physical evidence, the integrity of electronic evidence 
does not decay with time, particularly in the short period at issue 
here.   
Beyond the absence of impact on the probable cause 
determination, the defendants have not shown that the longevity of 
the review prejudiced them.  This is so for two reasons.  First, the 
government provided forensic copies of the entire devices to these 
four defendants in discovery on February 1, 2021.  See Triumph 
Capital, 211 F.R.D. at 66 (noting that “[t]he defendants were given 
copies of everything seized.  This obviates the need for a detailed 
inventory”).  The government then followed up with a copy of 
Cellebrite reports on April 30, 2021.  Second, by virtue of the 
court’s order requiring production of an exhibit list by June 1, 
2021, the government is required to disclose well in advance of trial 
any items from the digital devices that it plans to offer in its 
case-in-chief.  In other words, the exhibit list will identify those 
files extracted from the drives that are at issue. 
The defendants try to demonstrate prejudice with a question: 
“how can the defendants (without the resources of the federal 
government) possibly be expected to complete an in-depth substantive 
content review and prepare a defense while simultaneously processing 
the other information the government has amassed?”  The website of 
Steptoe and Johnson, the international law firm that represents 
defendant Richard Ayvazyan, suggests an answer.  Specifically, 
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Steptoe’s website touts its state of the art “Complex Litigation & 
Discovery Center,” which it says “bring[s] a wealth of e-discovery 
experience and subject matter insight that comes from the successful 
hands-on management of more than 300 document reviews” and which 
employs sophisticated techniques such as “technology-assisted review” 
and “email threading.”  See https://www.steptoe.com/en/about/complex-
litigation-discovery-center.html.  Given Steptoe’s forensic resources 
and defendants’ likely already existing familiarity with the contents 
of their own digital devices, defense counsel’s attempts to assert 
prejudice are not well taken. 
B. 
The Defendants’ Process Argument Fails Because the Warrant 
Authorized Prosecutors to Participate in the Search of the 
Digital Devices.   
 
The defendants’ brief seems to argue that the digital evidence 
should be suppressed because prosecutors themselves are reviewing the 
material to identify trial exhibits.  According to the defendants, 
this is a problem because “[the government’s] attorneys [] are not 
authorized members of the search team. . . .”  (ECF 363 at 17.)  To 
the extent that the defense is suggesting that prosecutors are 
prohibited from participating in the review of evidence obtained by a 
search warrant, their proposition is, in a word, nonsense.   
The “search procedure for digital devices” set out in the 
warrant are perfectly contrary to the defendants’ assertion that 
prosecutors are not “authorized members of the search team.”  
Specifically, paragraph five of Attachment B to the warrant says 
“[t]he review of the electronic data obtained pursuant to this 
warrant may be conducted by any government personnel assisting in the 
investigation, who may include, in addition to law enforcement 
officers and agents, attorneys for the government, attorney support 
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staff, and technical experts.”  (Emphasis added).  Even absent this 
explicit authorization, it is common for prosecutors to participate 
personally in the review of seized electronic evidence, and this 
should come as no surprise given the objective of a search warrant is 
to provide prosecutors with evidence to use at trial.  The 
information wall between prosecutors and agents posited by the 
defendants would also have the undesirable policy consequence of 
inhibiting searching agents from seeking legal advice from 
prosecutors about whether or not particular evidence falls within the 
scope of the warrant.  
The defendants’ assertion that “the government has jettisoned 
the search protocol requirement altogether” has no basis in fact.  
(ECF 363 at 17.)  The government reviewed the devices for documents 
that fall within the scope of the warrant.  That the government is 
identifying trial exhibits as part of this process is not a problem.  
See United States v. Aboshady, 951 F.3d 1, 5 (1st Cir. 2020) 
(government permitted to retain and search electronic data “in 
preparation for trial”).  This is because the documents that the 
government intends to introduce at trial are merely a subset of the 
scope of documents that Attachment B to the warrant authorizes the 
government to “seize.”       
At any rate, the remedy for any errors in the search process is 
exclusion of evidence that exceeded the bounds of the warrant, not 
suppression of all information contained on the device at issue.  As 
the Court held in Aboshady, “[i]f the scope of the government’s 
search was too broad, Aboshady would only be entitled to suppression 
of those emails that were introduced at trial and that reasonably 
fell outside the scope of the warrant unless the lawful and unlawful 
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parts of the search are inextricably intertwined or where the lawful 
part seems to have been a kind of pretext for the unlawful part.”  
Id. at 9.  
C. 
Defendants’ Request for Exclusion Based on Rule 16 and the 
Court’s Orders Is Frivolous. 
Defendants’ last-ditch effort to have the Court afford relief 
that it previously denied should be rejected.  Defendants’ request 
based on Rule 16 and the Court’s orders is without basis in law or 
fact and should be denied.  The government has made good faith 
efforts to comply with its discovery obligations in a timely manner, 
and defendants have not been prejudiced in any way. 
At the outset of the case, the government notified defendants of 
the process it would use to promptly produce to them a forensic copy 
of the dozens of digital devices it had seized so that defendants 
could conduct their own examination.  Defendants did not seek relief 
from the Court.  Consistent with its notice, the government promptly 
produced a complete forensic copy of the Four Digital Devices (among 
many others) to defendants by February 1, 2021.  The government’s 
production of this evidence was made approximately six weeks prior to 
the discovery cutoff, and four and half months before trial.  
Defendants do not and cannot demonstrate any prejudice based on this 
record.  
To the extent that steps were taken that may have delayed the 
time when defendants would have otherwise received additional copies 
of the data – in the form of Cellebrite reports – such steps were 
taken to protect defendants’ privileges:  an independent filter team 
conducted a filter review, using an Armenian language specialist, to 
respect and protect defendants’ potentially privileged 
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communications.  Filtering foreign language documents for privilege 
takes time. 
Moreover, the government produced to defendants approximately 
six weeks before trial a Cellebrite report summarizing the data 
available from the complete forensic copies that the government had 
produced months prior, and the government produced to defendants 
nearly three weeks before trial a reproduction of the Cellebrite that 
contains only the limited subset of data the government decided to 
seized after it completed its responsiveness review.  These reports 
are searchable and organized by file type.  In addition, the 
government is producing to defendants two weeks before trial a copy 
of the specific trial exhibits containing the evidence from the Four 
Digital Devices that it intends to use at trial.  Even had defendants 
decided not to conduct their own examination of the complete forensic 
copies that the government had produced four and half months before 
trial, defendants had more than sufficient time to review the 
Cellebrite reports produced in discovery well in advance of trial. 
Defendants do not make a serious effort to argue how or why they 
have been prejudiced based on the facts present here.  Defendants 
state only that “prejudice will occur in this case because the 
addition of the seized data to the government’s already large pool of 
seizures, with only two weeks until trial, would make it potentially 
impossible for the defendants to adequately prepare.”  (ECF 363 at 
13-14.)  Defendants’ claim -- that the reproduction of a limited 
subset of material, which they have already had in their possession, 
negatively impacts their efforts to prepare for trial -- defies 
common sense. 
Finally, defendants argue, as they have done repeatedly during 
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the extensive litigation in this case, that they need not demonstrate 
prejudice.  (ECF 363 at 14.)  But defendants still must proffer an 
actual reason as to why, based on this record, the Court should take 
extraordinary and drastic steps to exclude direct evidence of 
defendants’ involvement in serious crimes when that evidence has been 
available to defendants and their counsel for months in advance of 
trial.  Defendants do not make such a showing because they cannot. 
Moreover, none of the decisions on which defendants rely 
actually support the drastic sanctions defendants seek here.  In all 
of the opinions defendants cite (ECF 363 at 14), the government had 
access to the discovery at issue before the defendants.  Here, 
however, defendants had access to the discovery three months before 
the government, because the government provided defendants with a 
complete forensic copy of the Four Digital Devices on February 1 (per 
defendants’ request) and the government did not obtain access until 
the end of April (after the contents had been reviewed by the 
independent filter team to redact potentially privileged 
communications).  Moreover, none of the cases involved information 
about which defendants had intimate knowledge – namely, the contents 
of their own smartphones.  To the contrary, the opinions and orders 
relied on by defendants concerned the belated disclosure of 
information known or knowable only to the government, such as 
information relating to a government informant, expert witness, 
witness list, co-defendant plea, or police reports.  There is no 
legal support for the extraordinary relief defendants seek. 
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D. 
The Court has Already Ordered a Post-trial Kastigar 
Hearing. 
The defendants suggest that the government’s search of the 
devices was somehow influenced by information compelled in violation 
of Kastigar.  (ECF 363 at 23).  This is not so, and, at any rate, the 
Court has already set a post-trial Kastigar hearing and 
considerations of judicial economy counsel in favor of dealing with 
all Kastigar arguments at that time. 
IV. 
Conclusion 
For the foregoing reasons, the Court should deny the motion 
filed as ECF 363. 
 
Dated: May 31, 2021 
Respectfully submitted, 
 
TRACY L. WILKISON 
Acting United States Attorney 
 
SCOTT M. GARRINGER 
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 
 
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