Court filing
Notice of Motion and Motion in Limine to Exclude Evidence or Argument — USA v. Ayvazyan et al. (Dkt. 550, C.D. Cal.)
Filed June 20, 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 | 2021-06-20 |
U.S. District Court for the Central District of California · No. 2:20-cr-00579-SVW · Doc. 550 · 2021-06-20 · Docket on CourtListener
Full text
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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
JOSEPH BEEMSTERBOER
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 MOTION IN LIMINE TO
PRECLUE EVIDENCE OR ARGUMENT
REGARDING STATE INVESTIGATION AND
PROSECUTION
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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 motion in limine
seeking to preclude evidence and argument, including through the
testimony of Los Angeles Police Department Detective Lyle Barnes and
Federal Bureau of Investigation Special Agent Justin Palmerton,
regarding the State of California’s investigation and prosecution in
People of the State of California v. Tamara Dadyan et al.
This motion is brought pursuant to Rules 401, 402, and 403 of
the Federal Rules of Evidence and is based upon the attached
//
//
//
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memorandum of points and authorities, the files and records in this
case, and such further evidence and argument as the Court may permit.
Dated: June 20, 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
Department of Justice Trial Attorney
Attorneys for Plaintiff
UNITED STATES OF AMERICA
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TABLE OF CONTENTS
TABLE OF CONTENTS...................................................i
TABLE OF AUTHORITIES...............................................ii
MEMORANDUM OF POINTS AND AUTHORITIES................................1
I.
INTRODUCTION...................................................1
II.
RELEVANT BACKGROUND............................................2
A.
The State of California Mortgage Fraud Investigation
and Prosecution...........................................2
B.
Defendant Richard Ayvazyan’s Prior Baseless
Accusations Regarding the Federal Government’s
Purported Instigation of the State Case...................4
C.
Anticipated Defense Case..................................5
III. ARGUMENT.......................................................6
A.
Evidence Regarding the State Case is Not Relevant to
the Charges Here Under Rules 401 and 402..................6
B.
Any Limited Probative Value Regarding the State Case
is Substantially Outweighed by Multiple Dangers Under
Rule 403..................................................8
IV.
CONCLUSION....................................................13
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TABLE OF AUTHORITIES
CASES
Dicks v. United States, Civil Action No. 09-2614, 2010 WL
11484356 (E.D. Pa. Sept. 8, 2010).............................10
United States v. Hite, 769 F.3d 1154 (D.C. Cir. 2014)..............10
United States v. Jimenez, 513 F.3d 62 (3d Cir. 2008)...........10, 11
United States v. Lupton, 620 F.3d 790 (7th Cir. 2010)..............10
United States v. Rewald, 889 F.2d 836 (9th Cir. 1989)........8, 9, 11
United States v. Sarno, 73 F.3d 1470 (9th Cir. 1995)................9
RULES
Federal Rule of Evidence 401..................................1, 6, 8
Federal Rule of Evidence 402..................................1, 6, 8
Federal Rule of Evidence 403.................................1, 8, 12
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MEMORANDUM OF POINTS AND AUTHORITIES
I.
INTRODUCTION
The government respectfully moves in limine to preclude
defendants from presenting evidence or argument, including through
witnesses called during the defense case, regarding the State of
California’s investigation and prosecution in People of the State of
California v. Tamara Dadyan et al. (the “State Case”).
Defendant Richard Ayvazyan has previously alleged – falsely and
with no foundation – that the federal government caused the State of
California (the “State”) to draw up a 99-page, 133-count indictment
against him and codefendants Artur Ayvazyan and Tamara Dadyan (as
well as nine other people not charged in this federal case) in a
purported attempt to stymie his preparation for trial in this case.
These allegations are false. The State Case arose out of an entirely
separate alleged mortgage and clean energy loan fraud scheme going
back at least six years before the COVID-19 disaster relief loan
fraud scheme at issue here. The State exercised its independent
prosecutorial discretion in bringing charges relating to the
factually and temporally distinct fraud scheme at the heart of its
case. Evidence or argument pertaining to the unrelated State Case is
irrelevant to this case, and should be precluded as inadmissible
under Federal Rules of Evidence 401 and 402.
Moreover, any probative value of any such evidence is
substantially outweighed by numerous dangers under Rule 403. The
practical effect of permitting testimony and argument about a
completely separate case involving a different conspiracy will be to
confuse the jury. Such confusion is especially problematic in light
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of the jury instruction (and verdict form) sought by defendant
Richard Ayvazyan regarding single conspiracies versus multiple
conspiracies. (See ECF 372, Defense Proposed Instruction Nos. 2, 7,
9; ECF 547.) Evidence or argument regarding the State Case will no
doubt mislead the jury and possibly suggest that, if the jury were to
agree that there was a separate conspiracy in the State Case, then
the jury could not find defendant Richard Ayvazyan guilty in this
case. This is, of course, not the law and the government
respectfully requests that the Court issue an affirmative ruling
limiting the scope of testimony to prevent such confusion.
Accordingly, for the reasons explained herein, defendants should
be precluded from offering evidence or argument regarding the
investigation and prosecution of the State Case.
II.
RELEVANT BACKGROUND
A.
The State of California Mortgage Fraud Investigation and
Prosecution
In late April and early May 2021, authorities from the State of
California (the “State”) arrested three defendants in this case –
defendants Tamara Dadyan (“T. Dadyan”), Richard Ayvazyan (“R.
Ayvazyan”), and Artur Ayvazyan (“A. Ayvazyan”) – along with numerous
others in connection with a longstanding investigation and
prosecution brought by the State. (See Indictment, People of the
State of California v. Tamara Dadyan, et al., filed April 26, 2021
(“State Ind.”).1)
Specifically, the State has charged the defendants in its case
with “allegedly operating a sophisticated mortgage fraud and green
1 See https://oag.ca.gov/system/files/attachments/press-
docs/Indictment%2020210426.pdf.
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loan scheme . . . [that] resulted in a loss of approximately $15
million” between approximately 2014 and 2020. (See State of
California Department of Justice, Office of the Attorney General,
Press Release, “Attorney General Bonta Announces Arrests and
Arraignment in $15 Million Mortgage Fraud and Green Loan Scheme in
Southern California,” May 3, 2021 (“State Press Release”).2) The
State’s 133-count indictment names twelve defendants and is
predicated on at least a six-year fraud scheme that began more than
half-a-decade before COVID-19 and the CARES Act-related fraud at the
heart of the instant case. (See State Ind.)
As described further in the State’s Press Release, the charges
in the State Case center upon “a scheme that used stolen identities
to obtain mortgage and green loans, which were wired to bank accounts
[the defendants] controlled. As a part of their scheme, they
allegedly exploited the Ygrene Energy Fund and Renew Funding,
companies that provide funding to licensed contractors for energy-
efficient home improvements for homeowners. The defendants also
allegedly used their false identities to obtain mortgage loans from
conventional banks and hard money lenders for years, culminating in a
loss of $15 million.” (See State Press Release.)
According to the State’s indictment and Press Release, the State
Case involves a substantial amount of evidence and information going
back many years, including testimony provided by at least 47
witnesses who appeared before the grand jury in the State
proceedings. (See State Ind. at 99.)
2 See https://oag.ca.gov/news/press-releases/attorney-general-
bonta-announces-arrests-and-arraignment-15-million-mortgage.
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B.
Defendant Richard Ayvazyan’s Prior Baseless Accusations
Regarding the Federal Government’s Purported Instigation of
the State Case
In his reply in support of his motion to dismiss for
prosecutorial misconduct (ECF 329), defendant R. Ayvazyan made a
series of false and groundless allegations regarding the federal
government’s3 supposed role in prompting the State to bring charges
in the State Case.
Defendant R. Ayvazyan erroneously claimed, among other things,
that:
• the “government decided to bring charges in a years-old
FBI-state investigation,” (ECF 329 at 3);
• the “government responded to the Court’s April 16 ruling
[setting trial for June 15] by having the state government
charge Ayvazyan and co-defendants Tamara Dadyan and Artur
Ayvazyan in a state indictment, arrest them, and seek
draconian state detention orders that would inhibit the
defendants’ abilities to prepare for a June 15 federal
trial,” (id.);
• “federal and state authorities have conspired to undermine
Court orders and Ayvazyan’s fundamental rights,” (id. at
4);
• the “circumstantial evidence strongly implies that the
state government arrested and charged Ayvazyan after a
years-long investigation at the behest of the federal
government,” (id. at 4); and
3 To avoid confusion, the use of “government” herein refers to
the federal government, not including State and local authorities.
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• the “government aggressively pushed for Ayvazyan’s
detention (and that of his co-defendants) in the state case
knowing that it would detract from federal trial
preparation, force another continuance, or coerce
defendants into pleading.” (Id. at 5.)
All of these accusations were and are false, as the government
explained in its sur-reply to defendant R. Ayvazyan’s brief. (ECF at
334.) The Court denied defendant’s motion to dismiss. (ECF 343.)
C.
Anticipated Defense Case
Defendant R. Ayvazyan has informed the government and the Court
that he intends to call at least two witnesses as part of his defense
case: (1) Los Angeles Police Department (“LAPD”) Detective Lyle
Barnes; and (2) Federal Bureau of Investigation (“FBI”) Special Agent
Justin Palmerton.
The government understands that Detective Barnes was part of the
law enforcement team that conducted the investigation leading to the
charges in the State Case. Detective Barnes’s primary contact with
the government in relation to the federal charges currently being
tried was his provision of assistance to federal authorities in the
execution of a search warrant in the Federal Case at defendants A.
Ayvazyan’s and T. Dadyan’s residence on Weddington Street in Tarzana
on November 5, 2020, on a day when law enforcement executed six other
federal premises search warrants. In addition, as the government
disclosed to defendants within days of the State making arrests in
the State Case, the LAPD referred the underlying mortgage fraud
investigation in the State Case to the FBI in 2017, but federal
authorities ultimately did not bring charges relating to that
investigation. (See ECF 331-3.)
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The government expects that defense counsel will attempt to
question one or both of these witnesses and offer evidence regarding
the investigation and prosecution of the State Case. For the
following reasons, defendants should be precluded from doing so.
III. ARGUMENT
A.
Evidence Regarding the State Case is Not Relevant to the
Charges Here Under Rules 401 and 402
Defendant R. Ayvazyan has attempted previously, based on
speculation and false accusations, to draw a connection of
consequence between the State Case and the government’s prosecution
in this case (hereinafter the “Federal Case”). To the contrary, the
State exercised its independent prosecutorial authority to
investigate and address violations of state law that are wholly
separate from the violations of federal law addressed in the
superseding indictment in the Federal Case. The State Case does not
bear on a “fact . . . of consequence in determining the action” and
thus is irrelevant and inadmissible under Federal Rules of Evidence
401 and 402. Fed. R. Evid. 401, 402.
The charges in the Federal Case arise out of a scheme to submit
fraudulent COVID-19 disaster relief loan applications and launder the
proceeds of those fraudulently-obtained loans. (See ECF 154.) These
loans were made available through the Paycheck Protection Program
(“PPP”) and Economic Injury Disaster Loan (“EIDL”) program following
the passage of the CARES Act in March 2020. (Id. at ¶¶ 10-18.) The
bank/wire fraud and money laundering conspiracies charged in this
case are alleged to have begun “no later than in or around March
2020,” when loans through the PPP and EIDL programs first became
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available in response to the economic dislocations of the COVID-19
pandemic. (Id. at 30, 53.)
The 133-count indictment in the State Case, on the other hand,
alleges mortgage fraud, grand theft by false pretenses, and forgery,
among other California state offenses, relating to conduct alleged to
have taken place predominantly between 2014 and 2019, well before the
onset of the COVID-19 pandemic.4 (See generally State Ind.) The
State Case appears to focus upon a scheme involving the swindling of
money through “energy-efficient home improvement” loans and
traditional mortgage fraud (see State Press Release) – matters
unrelated to the PPP/EIDL loans targeted by defendants at the heart
of the Federal Case. While the State’s indictment references certain
purported business names that also appear to pertain to entities in
the Federal Case, including “Secureline Realty and Funding” and
“Fiber One,” the allegations in the State Case involving these
entities relate to conduct in 2016 and 2017, respectively,
significantly predating the charges in the Federal Case and
necessarily unrelated to COVID-19 disaster relief loans. (See, e.g,
State Ind., Count 14, Overt Act 14; id., Count 65, Overt Act 8.)
The government anticipates the defense will argue that these and
possibly other stolen or synthetic individual or business entities
were used by defendants in connection with both the PPP/EIDL loan
fraud scheme alleged here and the separate mortgage and green loan
fraud scheme charged by the State. That does not import relevance
from the factually and temporally distinct allegations in the State
4 The state indictment reflects a few allegations as late as
January 23, 2020 and February 4, 2020 (see State Ind., Counts 42-44,
97-99), which still predate passage of the CARES Act in late March
2020 and the charges in the Federal Case.
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Case to matters “of consequence in determining” guilt in the Federal
Case. Fed. R. Evid. 401. Defendants’ use of some of the same stolen
or synthetic identities to perpetrate two wholly separate fraudulent
schemes - carried out at different times, targeting different
victims, and involving at least nine different co-conspirators – is
reflective of the overall breadth of their fraudulent activities, not
a common scheme or plan with the PPP/EIDL scheme alleged in this
case. The defense has not proffered any credible and material basis
for drawing such a connection – aside from its past false accusations
about the government purportedly attempting to influence the
direction of the State’s prosecution.
Because the mortgage and green loan fraud scheme alleged in the
State Case is not relevant to any fact of consequence at trial, the
Court should find that evidence regarding the State Case is
inadmissible on this basis alone. Fed. R. Evid. 401, 402.
B.
Any Limited Probative Value Regarding the State Case is
Substantially Outweighed by Multiple Dangers Under Rule 403
Even if the State Case bore some relevance to the charges in the
Federal Case based on the overlapping possession or use of certain
fraudulent identities, any limited probative value regarding the
allegations in the State Case to the charges here is substantially
outweighed by multiple concerns under Federal Rule of Evidence 403,
including the danger of confusing the issues, misleading the jury,
undue delay, wasting time, and unfair prejudice. Fed. R. Evid. 403.
“Rule 403 recognizes that as the probative value of evidence
decreases, the potential increases for it to be substantially
outweighed by the dangers identified in the rule.” United States v.
Rewald, 889 F.2d 836, 853 (9th Cir. 1989). This disparity between
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the minimal (or non-existent) probative value and the Rule 403
concerns is especially pronounced in this case.
First, allowing defendants to introduce evidence regarding the
allegations and circumstances underlying the State Case undoubtedly
will confuse the issues and mislead the jury. The government’s case,
as it has been presented to the jury during this trial, focuses upon
the period of time starting in March 2020 when PPP and EIDL loans
were first made available to the public. The scope of the evidence
has been limited to defendants’ use of these two programs to submit
fraudulent loan applications and launder the millions of dollars in
proceeds during 2020 and into 2021. The introduction of evidence
regarding a wholly separate scheme or schemes, going back to at least
2014 and involving a factually distinct set of circumstances, would
“require delving into particular transactions and events that are far
afield from this prosecution.” Rewald, 889 F.2d at 836 (affirming
exclusion of defense proposed evidence where “[a]dmission of this
evidence posed the substantial risk of permitting the trial to
degenerate into an unfocused presentation of facts and testimony that
would confuse the issues and mislead the jury”); see also United
States v. Sarno, 73 F.3d 1470, 1488-89 (9th Cir. 1995) (“Evidence of
a ‘grand conspiracy’ might well have (as the district court here
concluded) induced confusion in the minds of the jury and distracted
them from the true issue [in the case].”).
Courts recognize that evidence relating to separate
investigations and cases, including state cases not directly related
to a federal prosecution, present a significant danger of confusing
the issues and misleading the jury under Rule 403.
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For example, in United States v. Jimenez, the Third Circuit
affirmed a district court’s limitation of the defense’s cross-
examination of a bank witness concerning the bank “being investigated
by the state district attorney in another totally unrelated matter.”
513 F.3d 62, 76 (3d Cir. 2008). The court limited cross-examination
of the witness under Rule 403 where the “unrelated investigation
occurred years after the investigation of the actions at issue [in
the federal case]” and the witness had “little knowledge of the other
investigation.” Id. The court found that the “marginal relevance
and the risk of delay and confusion created by a mini-trial to
explain the evidence” supported the district court’s limitation under
Rule 403. Id. See also United States v. Hite, 769 F.3d 1154, 1171-
72 (D.C. Cir. 2014) (affirming exclusion of prior testimony of
government witness which “could only be fairly understood in the
context of the specific chats that had taken place in . . . two
prior, unrelated cases,” presenting “potential for jury confusion”);
United States v. Lupton, 620 F.3d 790, 800 (7th Cir. 2010) (affirming
exclusion of defense expert witness testimony regarding state
statutes that were “relevant to [defendant’s] defense” but
“tangential to the crucial questions the factfinder had to answer,”
and “[t]estimony about them would have been of limited value at best
and unduly confusing at worst”); Dicks v. United States, Civil Action
No. 09-2614, 2010 WL 11484356, at *6 (E.D. Pa. Sept. 8, 2010)
(excluding evidence regarding separate investigation and three civil
lawsuits where admission would have “redirected the focus of
Petitioner’s trial, creating several mini-trials” and “distracting
and confusing the jury”).
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The same concerns apply with equal force here. Allowing the
defense to introduce evidence of the State Case, including through
the examination of Detective Barnes, would require “a mini-trial to
explain the evidence” in order to avoid juror confusion about
unrelated issues injected into the trial during the defense case.
Jimenez, 513 F.3d at 76. There is a substantial risk that doing so
would cause the trial to “degenerate into an unfocused presentation
of facts and testimony that would confuse the issues and mislead the
jury.” Rewald, 889 F.2d at 853.
Second, admission of evidence about the State Case would cause
undue delay and waste time. If the defense were permitted to open
the door and elicit testimony from Detective Barnes about the State
Case, the government would need to complete the picture, whether
through questioning Detective Barnes more extensively about his
knowledge of the State Case and/or putting on additional witnesses on
rebuttal.5 See Rewald, 889 F.2d at 853 (“Of course, the government
would be permitted to offer rebuttal evidence, thereby further
drawing out the proceedings.”) Given the apparent broad evidentiary
scope of the State Case, this trial-within-a-trial would
“considerably delay[] an already lengthy trial.” Id.
5 As the government previously explained to defendants, the
government has not taken possession of nor reviewed the discovery
maintained in the State’s custody underlying the charges in the State
Case (although it has made efforts to make such discovery available
to all defendants in this case) and thus has not investigated or
reviewed the evidence underlying those charges. (See 331-3.)
However, should issues regarding the State Case become admissible at
trial, the government will need to develop its understanding of the
State’s charges and prepare to offer evidence completing the picture
of defendants R. Ayvazyan’s and A. Ayvazyan’s involvement in that
alleged conduct.
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The government’s need to complete the picture would be
especially strong were defendants R. Ayvazyan and A. Ayvazyan to try
to pin responsibility for their criminal conduct in the Federal Case
on defendant T. Dadyan (who already has pleaded guilty here) based on
the allegations against her in the State Case - as both defendants R.
Ayvazyan and A. Ayvazyan have indicated may be part of their theories
of defense. Indeed, defendants R. Ayvazyan and A. Ayvazyan are the
number two and three defendants (of twelve) charged in the State
Case. Any defense contention that they are somehow absolved of
responsibility here due to defendant T. Dadyan’s alleged fraudulent
conduct in the State Case would require a mini-trial as to defendants
R. Ayvazyan’s and A. Ayvazyan’s criminal conduct alleged by the
State. This would be a waste of time and cause undue delay,
particularly when balanced against the minimal probative value (at
best) of any evidence relating to the State Case.
Finally, introduction of evidence regarding the State Case
presents a substantial danger of unfair prejudice to the government.
The government anticipates that defendant R. Ayvazyan may seek to
continue his baseless, false argument, whether through his
examination of Detective Barnes or Agent Palmerton, that the
government somehow engineered the State’s 133-count indictment as a
means to deprive defendant of his rights in this case. This is
false, as the government played no role in the State’s decision to
investigate and bring charges against defendant. (See ECF 331.) Any
such line of cross-examination, innuendo, or argument would unfairly
prejudice the government in its presentation of evidence to the jury
in this case, and further confuse the issues and mislead the jury.
Fed. R. Evid. 403.
Case 2:20-cr-00579-SVW Document 550 Filed 06/20/21 Page 17 of 18 Page ID
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IV.
CONCLUSION
For the foregoing reasons, the government respectfully requests
that this Court preclude defendants from questioning witnesses or
offering evidence or argument regarding the State of California’s
investigation and prosecution in People of the State of California v.
Tamara Dadyan et al.
Case 2:20-cr-00579-SVW Document 550 Filed 06/20/21 Page 18 of 18 Page ID
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