Court filing

Notice of Motion and Motion to Strike — USA v. Ayvazyan et al. (Dkt. 426, C.D. Cal.)

Filed June 7, 2021 in USA v. Ayvazyan et al.; one of 233 filings from this case.

Record facts

Court	U.S. District Court for the Central District of California
Filed	2021-06-07

U.S. District Court for the Central District of California · No. 2:20-cr-00579-SVW · Doc. 426 · 2021-06-07 · Docket on CourtListener

Full text

OPPOSITION TO TRIAL INDICTMENT AND CROSS-MOTION TO STRIKE
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Ashwin J. Ram (SBN 227513)
aram@steptoe.com
Michael A. Keough (SBN 327037)
mkeough@steptoe.com
Nicholas P. Silverman (pro hac vice)
nsilverman@steptoe.com
Meghan Newcomer (pro hac vice)
mnewcomer@steptoe.com
STEPTOE & JOHNSON LLP
633 West Fifth Street, Suite 1900
Los Angeles, CA 90071
Telephone: (213) 439-9400
Facsimile: (213) 439-9599

Counsel for Defendant Richard Ayvazyan

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

Counsel for Defendant Marietta Terabelian
Thomas A. Mesereau Jr. (SBN 91182)
mesereau@mesereaulaw.com
MESEREAU LAW GROUP, P.C.
10100 Santa Monica Blvd., Suite 300
Los Angeles, CA 90067
Telephone: (310) 651-9960

Jennifer J. Wirsching (SBN 263141)
wirschinglaw@outlook.com
ATTORNEY AT LAW
1935 Alpha Rd, Suite 216
Glendale, CA 91208
Telephone: (424) 902-9280

Counsel for Defendant Artur Ayvazyan

Fred G. Minassian (SBN 170974)
fgminassian@yahoo.com
LAW OFFICES OF FRED G.
MINASSIAN, INC.
101 N. Brand Ave, Suite 1970
Glendale, CA 91203
Telephone: (818) 240-2444

Counsel for Defendant Tamara Dadyan

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

UNITED STATES OF AMERICA,

Plaintiff,

RICHARD AYVAZYAN,
et al.,

Defendants.
Case No. 20-cr-579 (SVW)

DEFENDANTS’ OPPOSITION TO
GOVERNMENT’S MOTION TO
REDACT SUPERSEDING
INDICTMENT FOR USE AT
TRIAL (DKT. 422) AND CROSS-
MOTION TO STRIKE
PARAGRAPHS 10-18 OF THE
SUPERSEDING INDICTMENT

Judge: Hon. Stephen V. Wilson
Date: June 15, 2021
Time: 8:30 a.m.
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OPPOSITION TO TRIAL INDICTMENT AND CROSS-MOTION TO STRIKE
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NOTICE OF CROSS-MOTION TO STRIKE PARAGRAPHS 10-18
OF THE SUPERSEDING INDICTMENT
TO THE COURT, ALL PARTIES, AND THEIR COUNSEL OF RECORD:

PLEASE TAKE NOTICE that Defendants Richard Ayvazyan, Marietta
Terabelian, Artur Ayvazyan, and Tamara Dadyan hereby oppose the government’s
motion to redact the Superseding Indictment for use at trial, and moves this Court for an
order striking Paragraphs 10-18 from the Superseding Indictment.

This application is based upon this notice, the opposition and cross-motion
below, the accompanying Declaration of Ashwin J. Ram, the files and records in this
case, and such further evidence and argument as the Court may permit.
Dated: June 7, 2021

Respectfully submitted,

STEPTOE & JOHNSON LLP

/s/ Ashwin J. Ram

Ashwin J. Ram (SBN 227513)
aram@steptoe.com
Michael A. Keough (SBN 327037)
mkeough@steptoe.com
Nicholas P. Silverman (pro hac vice)
nsilverman@steptoe.com
Meghan L. Newcomer (pro hac vice)
mnewcomer@steptoe.com
STEPTOE & JOHNSON LLP
633 West Fifth Street, Suite 1900
Los Angeles, CA 90071
Telephone: (213) 439-9400
Facsimile: (213) 439-9599

Counsel for Defendant Richard Ayvazyan

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/s/ Ryan V. Fraser

Counsel for Defendant Marietta
Terabelian

/s/ Thomas A. Mesereau

Thomas A. Mesereau Jr. (SBN 91182)
mesereau@mesereaulaw.com
MESEREAU LAW GROUP, P.C.
10100 Santa Monica Blvd., Suite 300
Los Angeles, CA 90067
Telephone: (310) 651-9960

Jennifer J. Wirsching (SBN 263141)
wirschinglaw@outlook.com
ATTORNEY AT LAW
1935 Alpha Rd, Suite 216
Glendale, CA 91208
Telephone: (424) 902-9280

Counsel for Defendant Artur Ayvazyan

/s/ Fred G. Minassian

Fred G. Minassian (SBN 170974)
fgminassian@yahoo.com
LAW OFFICES OF FRED G.
MINASSIAN, INC.
101 N. Brand Ave, Suite 1970
Glendale, CA 91203
Telephone: (818) 240-2444

Counsel for Defendant Tamara Dadyan
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OPPOSITION AND CROSS-MOTION TO STRIKE
The government’s original Indictment contended that two brothers and their
wives conspired to apply for a limited set of allegedly fraudulent Paycheck Protection
Program (PPP) and Economic Injury Disaster Loan program (EIDL) loans. The
government then chose to file a Superseding Indictment which included a
fundamentally different conspiracy – a team of eight defendants managing a vast
criminal enterprise that included 151 loans applied for by 79 different companies and
56 different people. The government believed that it would be able to meet its burden
to prove that this vast conspiracy existed beyond a reasonable doubt. A grand jury
evaluated this evidence and allowed the government to proceed on its new theory. But
when the defense proposed a multiple conspiracies jury instruction that would have
held the government to its burden to prove the vast, single conspiracy charged in the
Superseding Indictment, the government immediately proposed a trial indictment
redacting the allegations related to the 151 loan conspiracy that has become the heart of
the government’s case. The government’s request is nothing more than naked
gamesmanship to give the defendants mere days to respond to yet another new
conspiracy that the government intends to prove at trial. To extent the government
wants to redact this paragraph to cure Kastigar taint issues, those issues should be
explored during the Kastigar hearing that the Court has already ordered.
By seeking to strike Paragraph 32 on the eve of trial, the government admits that
it does not intend to offer evidence of a conspiracy that involved the coordination of
151 loan applications for dozens of people and dozens of companies. But that is the
conspiracy that the government presented to the grand jury, and that the grand jury
charged. The government was not required to seek a superseding indictment alleging a
fundamentally different conspiracy than its original indictment. But having done just
that, the government should be required to prove that conspiracy beyond a reasonable
doubt. Material changes to the indictment must be brought before a grand jury and
cannot be unilaterally made by prosecutors seeking a band-aid for their own charging
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error. The government’s request to change the crime it intends to prove on the eve of
trial should be denied.
I.
RELEVANT BACKGROUND
The government’s first Indictment was filed on November 17, 2020. Dkt. 32.
The Indictment charged a conspiracy among four defendants –two brothers and their
wives – to apply for 35 fraudulent PPP and EIDL loans of at least $5.6 million. Id. ¶
22. On March 9, 2021, the government chose to change the scope of the alleged
conspiracy by filing a Superseding Indictment on March 9, 2021. Dkt. 154. The
conspiracy charged in the Superseding Indictment was alleged to involve coordination
among eight defendants to apply for 151 fraudulent PPP and EIDL loans totaling at
least $21.9 million. Id. ¶ 32. These 151 loans became the government’s rallying cry
throughout the filings and hearings prior to trial. See Transcript of April 2, 2020
Hearing, Dkt. 289-4, at 46:5-11 (“The indictment now contains over 150 alleged
fraudulent loans, not just 35 as the initial indictment did, and it now contains four
additional defendants . . . . And it’s a much broader indictment that has a lot of
discovery that supports the charges in this significantly expanded indictment.”); Dkt.
219 at 13 (“A grand jury returned a first superseding indictment that significantly
expands the charges in this case . . . . the first superseding indictment substantially
expanded the scope of the charged conspiracy from at least 35 fraudulent loan
applications to over 150 seeking over $21.9 million in COVID-19 disaster relief
funds.”).
On the evening of Wednesday, May 26, 2021, counsel for defendant Richard
Ayvazyan sent a draft set of proposed jury instructions to the government for their
consideration. See Declaration of Ashwin J. Ram, dated June 7, 2021 (“Ram Decl.”)
Ex. A. Those instructions contained a proposed instruction related to multiple
conspiracies, meaning that, if the allegations brought by the government indicated that
two or more conspiracies existed, the government would have failed to prove to single
unified conspiracy it charged. Based on the Ninth Circuit Model Jury Instructions, the
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proposed multiple conspiracies instruction would inform the jury in relevant part that
“If you find that the single conspiracy to commit wire fraud and bank fraud charged in
Count 1 did not exist, then you must return a not guilty verdict, even though you may
find that some other conspiracy existed.” Ram Decl. ¶ 2.
Four hours later, in the middle of the night at 2:24 a.m., the government emailed
defense counsel to propose that the government proceed on a trial indictment. Ram
Decl. Ex. B. In that email, as in the present application, the government proposed to
strike Paragraph 32 from the indictment for trial – the paragraph that conveniently
contains the sweeping allegations of the 151 loan conspiracy at the heart of the
Superseding Indictment.
II.
ARGUMENT
A.
The Proposed Redactions Are a “Material Change” in the Indictment
The government correctly observes that redactions to the indictment for trial are
permitted so long as those changes are not material and do not prejudice the defense.
The government is wrong, however, when it refers to its proposed redactions as
affecting mere surplusage and as nothing more than an attempt to streamline the trial
evidence. The opposite is true: the proposed changes represent fundamentally different
charges against Ayvazyan and the other defendants and are attempt to fix the
government’s own charging error by preventing the defense from arguing that the
single conspiracy charged by the government is in fact multiple conspiracies. A week
before trial, the government is trying to change the conspiracy that it must prove
without going back to the grand jury first. The Court should see through this naked
gamesmanship and deny the government’s request.
It is hornbook law that a court cannot permit a defendant to be tried on charges
that are not made in the indictment against him. Stirone v. United States, 361 U.S. 212,
217 (1960). While the government may redact the indictment prior to trial to address
“misnomer[s] or typographical errors,” United States v. Dhinsa, 243 F.3d 635, 667 (2d
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Cir. 2001), this does not extend to fundamental changes in the crime charged. Such
changes may only be made by the grand jury. Stirone, 361 U.S. at 217.
In United States v. Miller, 471 U.S. 130 (1985), the U.S. Supreme Court held that
the government could meet its burden of proof on a narrower conspiracy than the one
originally charged without returning to the grand jury first, so long as the narrower
conspiracy was “completely contained” within the charged conspiracy. Id. at 144. But
here, the conspiracy the government now intends to prove at trial is not clearly
contained with the conspiracy actually charged in the Superseding Indictment. Miller
turned on changes to the indictment before trial that were “in no way essential to the
offense.” Id. at 145. Here, the government chose to bring a Superseding Indictment
that, in the government’s own words, “substantially expanded the scope of the charged
conspiracy.” The grand jury charged the defendants with this new conspiracy that
contained 151 loans submitted by 79 different companies and 56 different people.
According to the government, Ayvazyan – or Tamara Dadyan1 – was the mastermind of
this vast web that included dozens of people and companies and the coordination of
eight separate defendants, a far cry from conspiracy of four family members alleged in
the original indictment. The government took on the burden of proving this new
conspiracy, but now seeks to revert to a smaller, simpler conspiracy after the defense
previewed that it will challenge the government’s ability to prove that a single
conspiracy existed. That is a material change that must be brought before a grand jury.
A similar issue was presented in United States v. Rakow, No. CR 04-01563, 2006
WL 8445940 (C.D. Cal. June 30, 2006) (Morrow, J.). One week before trial in that
case, the government attempted to narrow the indictment by redacting certain
allegations regarding the scope of the scheme that had been charged by the grand jury.
Id. at *1. The defense had prepared to defend against the scheme charged in the
indictment, and objected to the government’s eleventh hour attempt to fundamentally

1 See Dkt. 384 at 1 (describing Dadyan’s home as “the headquarters of a massive criminal
conspiracy.”
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change the nature of the scheme that they would have to defend against. Id. at *2. The
court agreed, and held that the defense would be prejudiced because they had “relied on
the allegations of the indictment in preparing their defense, and intended to highlight
the weakness of the government’s proof respecting certain of the allegations to raise
reasonable doubt with respect to the remainder,” but would now be forced to defend
against an entirely new scheme just days before trial. Id. at *3; see also United States v.
Rosin, 892 F.2d 649, 651 n. 1 (7th Cir. 1990) (noting that a variance that narrows the
scope of the charges may “deprive a defendant of preparing an adequate defense”).
Here, the government is attempting to do exactly what the court forbade in Rakow:
secure tactical advantage by changing the crime that the defendants are supposed to
defend against on the eve of trial. The Court should decline the invitation.
As the Supreme Court observed in Stirone, “the very purpose of the requirement
that a man be indicted by grand jury is to limit his jeopardy to offenses charged by a
group of his fellow citizens acting independently of either prosecuting attorney or
judge.” 361 U.S. at 218. By allowing the government’s backdoor attempt to change
the crime charged a week before trial, prosecutors would be allowed to usurp the duties
of the grand jury. This is not permitted in the American criminal justice system. The
government’s motion should be denied.
B.
Redacting the Indictment Will Not Cure the Far-Reaching Taint
Under Kastigar
To the extent the government is attempting to cure the effects of tainted evidence
by redacting the indictment before trial, their request should be denied. This Court has
already ruled that defendants Ayvazyan and Terabelian are entitled to a hearing to
determine the reach of the tainted evidence pursuant to Kastigar v. United States, 406
U.S. 441 (1972). Inevitably, that hearing will probe the government’s decision to bring
the Superseding Indictment and the role that the tainted evidence played in its decision
to charge a far-reaching and fundamentally different conspiracy than the one found in
the original Indictment. As set forth in the Joint Motion to Dismiss Under Fed. R.
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Crim. 12(b) or Continue the Trial to Hold a Pre-Trial Kastigar Hearing (Dkt. 381), the
indictments in this case are already tainted by both evidentiary and non-evidentiary uses
of compelled statements. The government has made its bed and must now sleep in it; it
cannot escape the effects of the tainted evidence simply by redacting the allegations
related to the conspiracy charged in the Superseding Indictment.
C.
The Government’s Summary Witness Should Be Precluded From
Testifying As To the Loans the Government Seeks to Strike
Should the Court be inclined to allow the government’s proposed redactions to
the indictment for trial, the government’s summary witness should be precluded from
offering testimony regarding the loans the government seeks to strike. If the redactions
are indeed allowed, the proposed charts to be used by that summary witness would
contain information that is irrelevant to this case. The government has moved to
present a redacted Superseding Indictment at trial, which eliminates the government’s
burden to prove that the conspiracy at issue involved the submission of 151 PPP and
EIDL loan applications. That deletion leaves only the seventeen loans charged in the
overt acts and the wire and bank fraud counts of the indictment. Yet the proposed
summary charts shared by the government include at least 60 other PPP and EIDL loan
applications that are not charged in the indictment. The government is attempting to
have their cake and eat it too, and the Court should not countenance it. Either the
conspiracy at issue in this case involved the submission of 151 PPP and EIDL loan
applications, in which case the Superseding Indictment should not be redacted and the
government can seek to admit evidence about all of the loans at issue, or the conspiracy
concerns the 17 loans included in the redacted Superseding Indictment, and the other
loan applications are irrelevant. Any limited relevance the additional loan applications
could have is substantially outweighed by the danger of wasting both the jury’s and
Court’s time.
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D.
The Court Should Strike Paragraphs 10-18 of the Superseding
Indictment
The Court should, however, strike paragraphs 10-18 of the superseding
indictment as irrelevant and prejudicial surplusage.2 These paragraphs are a one-sided
and inaccurate version of the purpose and policy justifications for the CARES Act
designed to drum up outrage on behalf of jurors. These purpose and policy paragraphs
are irrelevant, prejudicial, and usurp the Court’s role to instruct on the parts of the law
that do require instruction.
The paragraphs in question begin by painting the CARES Act as “United States
taxpayer funds” that were intended to go to “small businesses for job retention and
other expenses,” ¶ 10. The paragraphs also delve into mistaken instructions of law,
citing an erroneous claim that breaking the PPP lending agreement (i.e., breaching a
contract) could cause the federal government to pursue criminal fraud charges. ¶ 11.
Breach of contract is not criminal fraud, and the jury should not be invited to conflate
the two concepts. In motions practice, the government has drawn these two ideas
together to argue that the defendants “st[ole] millions of dollars from American families
who needed the money to survive.” Dkt. 278 at 1; Dkt. 152 at 1 (arguing the
defendants “st[ole] tens of millions of dollars … which were intended to assist
struggling businesses during the COVID-19 pandemic.”). This argument is plainly
inadmissible at trial and should not be permitted in the indictment because it is
irrelevant, it is unfairly prejudicial and a waste of time, and it infringes on the Court’s
role as the exclusive instructor as to the law.
First, the purpose and policy framework is plainly irrelevant to the charges. In a
run-of-the-mill gun possession case, for instance, the indictment does not describe

2 “Upon the defendant’s motion, the court may strike surplusage from the indictment.” Fed. R. Crim.
P. 7(d). This provision is designed to protect defendants from suffering unfair prejudice from
allegations that are unnecessary to set forth a “plain, concise, and definite written statement of the
essential facts constituting the offense charged.” Fed. R. Crim. P. 7(c)(1) (emphasis added). In other
words, Rule 7(d) “introduces a means of protecting the defendant against immaterial or irrelevant
allegations.” Fed. R. Crim. P. 7(d) advisory committee’s note to 1944 adoption.
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Congress’s consideration of violent crime statistics or explain why gun violence
required special legislation. Nor would it be appropriate in a narcotics prosecution for
the indictment to delve into the social costs of drug abuse or the number of lives
destroyed by drug trafficking. See United States v. Sanchez, 659 F.3d 1252, 1256 (9th
Cir. 2011) (“[P]rosecutors may not point to a particular crisis in our society and ask the
jury to make a statement with their verdict.”) United States v. White, 766 F. Supp. 873,
885 (E.D. Wash. 1991) (striking nine paragraphs summarizing the government’s
version of environmental criminal statutes at issue as “neither relevant nor material to
the charges”). This case is no different. The jury’s role is not to evaluate the
legislature’s purpose in enacting the CARES Act or the SBA’s intention in issuing a
regulation. Including those issues in an indictment runs the risk of distracting from the
relevant issues that are part of the jury’s mandate.
Second, even if the purpose or policy of the CARES Act was relevant—which it
is not—the unfair prejudice and waste of time from injecting that purpose or policy into
trial would substantially outweigh whatever minimal relevance existed. The
government’s argument that the defendants allegedly “stole” money from “American
families who needed the money to survive,” is flatly incorrect. The 2020 PPP loan
program was left with over $130 billion in surplus funds still available for any
applicants in need when the program concluded on August 8, 2020.3 Even if every
allegation made by the government were true, no money was withheld from small
businesses or families. If the government seeks to introduce evidence or argument
about small businesses or families being victimized, the defendants are entitled to
respond in kind by explaining that no small businesses or families would have been
harmed by the conduct alleged in the indictment.

3 See Paycheck Protection Program (PPP) Report (Aug. 8, 2020),
https://home.treasury.gov/system/files/136/SBA-Paycheck-Protection-Program-Loan-Report-
Round2.pdf.
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Third, the government’s description of the law, including its threat of fraud
charges for breaching a contract purports to state the law controlling the case. In fact,
that critical function has long been reserved exclusively for the Court when it provides
instructions to the jury. See, e.g., Dennis v. United States, 341 U.S. 494, 515 (1951)
(noting that a “question of law” is an issue “for the judge to decide”); Sparf v. United
States, 156 U.S. 51, 89 (1895) (explaining that “the judge decides the law”); United
States v. Spalding, No. 01-cr-152, 2002 WL 818129, at *5 (S.D. Ind. Apr. 24, 2002)
(striking legal background section “because the legal principles defined in these
paragraphs may lead to confusion of issues and, in any event, will be furnished in
proper form to the Jury in the final instructions”); United States v. Groos, 616 F. Supp.
2d 777, 790 (N.D. Ill. 2008) (striking legal background because “legal principles are
more appropriately addressed at the time of the jury instruction conference”).
Unnecessary surplusage describing the potential for fraud charges serves no legitimate
purpose and is likely to confuse the jury, and prejudicially lower the government’s
burden of proving fraud, not breach of contract.
III.
CONCLUSION
For the foregoing reasons, the court should deny the government’s motion to
redact the Superseding Indictment for use at trial and grant Defendants’ cross-motion to
strike paragraphs 10-18 from the Superseding Indictment.
//
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Dated: June 7, 2021

Respectfully submitted,

/s/ Ashwin J. Ram

Counsel for Defendant Richard Ayvazyan

/s/ Ryan V. Fraser

Counsel for Defendant Marietta
Terabelian

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/s/ Thomas A. Mesereau
Thomas A. Mesereau Jr. (SBN 91182)
mesereau@mesereaulaw.com
MESEREAU LAW GROUP, P.C.
10100 Santa Monica Blvd., Suite 300
Los Angeles, CA 90067
Telephone: (310) 651-9960
Jennifer J. Wirsching (SBN 263141)
wirschinglaw@outlook.com
ATTORNEY AT LAW
1935 Alpha Rd, Suite 216
Glendale, CA 91208
Telephone: (424) 902-9280
Counsel for Defendant Artur Ayvazyan
/s/ Fred G. Minassian

Fred G. Minassian (SBN 170974)
fgminassian@yahoo.com
LAW OFFICES OF FRED G.
MINASSIAN, INC.
101 N. Brand Ave, Suite 1970
Glendale, CA 91203
Telephone: (818) 240-2444
Counsel for Defendant Tamara Dadyan
SIGNATURE ATTESTATION

Pursuant to Local Rule 5-4.3.4(a)(i), the filer attests that all signatories listed, and
on whose behalf the filing is submitted, concur in the filing’s content and have
authorized the filing.
Case 2:20-cr-00579-SVW Document 426 Filed 06/07/21 Page 14 of 14 Page ID
#:4764

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Notice of Motion and Motion to Strike — USA v. Ayvazyan et al. (Dkt. 426, C.D. Cal.)

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