Notice of Motion and Motion in Limine to Exclude — USA v. Ayvazyan et al. (Dkt. 563, C.D. Cal.)

Record facts

U.S. District Court for the Central District of California · No. 2:20-cr-00579-SVW · Doc. 563 · 2021-06-23 · 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 
 
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 
EXCLUDE DEFENDANT RICHARD 
AYVAZYAN’S PROPOSED SUMMARY CHARTS 
AND SUMMARY WITNESS  
 
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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 exclude defendant Richard Ayvazyan’s proposed summary 
charts and summary witness.   
This motion is brought pursuant to Rules 1006 and 403 of the 
Federal Rules of Evidence and is based upon the attached  
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 23, 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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MEMORANDUM OF POINTS AND AUTHORITIES 
I. 
INTRODUCTION 
The government respectfully moves in limine to exclude defendant 
Richard Ayvazyan’s (“defendant”) proposed summary charts, disclosed 
to the government on the afternoon of June 22, 2021, as well as the 
sponsoring summary witness who has yet to be identified.   
Hours before defendant planned to use a set of summary chart 
exhibits at trial, defendant purported to provide notice – by sending 
an email to counsel for the government as counsel was returning to 
the courtroom to resume proceedings and powering down their mobile 
phones.  For this reason alone, the Court should exclude these 
summary chart exhibits from evidence.  There are, however, several 
other reasons why exclusion is required here.  Defendant fails to 
meet any of the basic prerequisites for admissibility: the summary 
chart exhibits are incomplete, do not contain dates, do not purport 
to summarize “voluminous” information, and reference documents not 
yet provided to the government.  They are also extremely confusing. 
And defendant still has not identified the sponsoring summary witness 
– even though defendant surely knows the witness’s identity.  For all 
of these reasons, the government respectfully requests the Court 
grant its motion to exclude defendant’s summary chart exhibits and 
summary witness.  
II. 
RELEVANT BACKGROUND 
At the commencement of his defense case-in-chief, on June 22, 
2021, defendant disclosed to the government by email proposed summary 
charts shortly before 1:00 p.m. (as counsel re-entered the courtroom 
following the lunch break).  Defendant indicated his intention “to 
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introduce [them] into evidence with a summary witness this 
afternoon.”  (See Exhibit 1 attached hereto (Email from Counsel to 
Defendant Richard Ayvazyan).1)  Defense counsel attached the two 
proposed summary exhibits – DX1000 and DX1100 – to his email.  (See 
Exhibit 2 (DX1000) and Exhibit 3 (DX1100) attached hereto.2)  One of 
the charts purports to summarize certain defense exhibits that have 
yet to be produced to the government, including DX 19, DX 102, and DX 
103.  (See Exhibit 2 at DX1000_001 – DX1000_004.) 
The late proposed summary charts appear to reflect various types 
of online account activities for certain Internet Protocol (“IP”) 
addresses selected by the defense.  Each chart has a different IP 
address at the top.  Some have corresponding subscriber information, 
while others do not.  None contain dates.   
Defendant has not identified who will serve as the sponsoring 
summary witness for these proposed summary charts, nor has he 
provided any information about the proposed summary witness’s role in 
reviewing the underlying information and compiling the summary 
charts. 
III. ARGUMENT 
A. 
Defendant Does Not Satisfy Requirements for Admissibility 
of the Summary Charts and Summary Witness Under Rule 1006 
Defendant has not met basic requirements for the admissibility 
of his proposed summary charts and summary witness, including timely 
 
1 The email attached as Exhibit 1 reflects the email was sent at 
3:48 p.m.  However, this time stamp was captured in Eastern Standard 
Time.  The email was sent to counsel for the government locally at 
12:48 p.m. Pacific Standard Time. 
2 The government has redacted certain address information and 
personally identifying information in the attached exhibits, but 
intends to provide unredacted versions of defendant’s proposed 
summary charts to the Court on the morning of June 23, 2021. 
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disclosure of the proposed charts and the underlying evidence to the 
government as well as the neutral and intelligible presentation of 
evidence within the charts.  The Court should exclude the proposed 
summary charts and sponsoring summary witness on this basis alone.  
Federal Rule of Evidence 1006 allows a party to “use a summary, 
chart, or calculation to prove the content of voluminous writings, 
recordings, or photographs that cannot be conveniently examined in 
court.”  Fed. R. Evid. 1006.  The Rule requires that the “proponent 
must make the originals or duplicates available for examination or 
copying, or both, by other parties at a reasonable time and place.”  
Id.  See also United States v. Rizk, 660 F.3d 1125, 1130 (9th Cir. 
2011) (“A proponent of summary evidence must establish that the 
underlying materials upon which the summary is based (1) are 
admissible in evidence and (2) were made available to the opposing 
party for inspection.”). 
Moreover, “[f]or a summary of documents to be admissible, the 
documents must be so voluminous as to make comprehension by the jury 
difficult and inconvenient; the documents themselves must be 
admissible; the documents must be made reasonably available for 
inspection and copying; the summary must be accurate and 
nonprejudicial; and the witness who prepared the summary should 
introduce it.”  United States v. Fahnbulleh, 752 F.3d 470, 479 (D.C. 
Cir. 2014); see also United States v. Segines, 17 F.3d 847, 854 (6th 
Cir. 1994) (“A composite is admissible, assuming that it clears the 
intelligibility hurdle, when it saves the trial court ‘much time and 
inconvenience’ and when ‘the prosecution [has] laid the proper 
foundation on the accuracy and authenticity of the composite tape for 
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its admission into evidence’ and has complied with the requirements 
of Federal Rule of Evidence 1006.”) (citation omitted). 
Here, defendant has failed to meet these prerequisites. 
First, defendant disclosed the proposed summary charts to the 
government the same afternoon (June 22, 2021) that it planned to 
offer them into evidence.  And defendant did so at the end of the 
lunch break, via email, as counsel for the government returned to the 
courtroom and powered down their mobile phones pursuant to the 
Court’s directions.  Indeed, counsel for the government was not even 
aware that the proposed summary chart exhibits had been produced 
until the end of the day, when counsel mentioned the exhibits to the 
Court for the first time.  The government expects the summary witness 
now will be testifying the morning of June 23, still less than 24 
hours after defendant’s disclosure of the proposed summary charts.  
Yet defendant still has not produced to the government several of the 
underlying exhibits purportedly summarized in the chart, including DX 
19, DX 102, and DX 103.  (See Exhibit 2 at DX1000_001 – DX1000_004.)  
Defendant thus has not made the specific underlying materials 
available to the government a “reasonable time” before his planned 
use of the proffered summary charts.  Fed. R. Evid. 1006; see also, 
e.g., United States v. Miller, 771 F.2d 1219, 1238 (9th Cir. 
1985) (“[T]he lists were not admissible as summaries under Rule 
1006 because the government failed to provide appellants with a copy 
of the underlying documents prior to the introduction of the 
summary.”). 
Second, the IP address related evidence defendant purports to 
summarize in the proposed summary charts is not voluminous, as 
required under Rule 1006.  DX1000 summarizes 22 unique exhibits.  
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DX1001 summarizes 9 unique exhibits.  Defendant effectively pursued a 
line of cross-examination, utilizing the same types of IP address 
related documents encompassed within the proposed summary charts, 
during the testimony of a government witness (IRS Special Agent 
Geffrey Clark) earlier today.  Thus, in addition to the limited 
number of exhibits at issue in the proposed summary charts, defendant 
has not demonstrated a compelling need to summarize them for use at 
trial.  Neither summary chart exhibit meets the fundamental 
requirement under – and purpose of – Rule 1006 that the proffered 
chart is necessary because the underlying evidence “cannot be 
conveniently examined in court.”  Fed. R. Evid. 1006.  See, e.g., 
Javelin Inv., S.A. v. Ponce, 645 F.2d 92, 96 (1st Cir. 1981) (ten 
documents not the type which cannot conveniently be examined in 
court); cf. United States v. Aubrey, 800 F.3d 1115, 1130 (9th Cir. 
2015) (“Multiple bankers’ boxes of bank statements constitute the 
type of materials anticipated by Rule 1006.”).  
Third, the content of the proposed summary charts is not 
“accurate and nonprejudicial” nor does it “clear[] the 
intelligibility hurdle.”  Fahnbulleh, 752 F.3d at 479; Segines, 17 
F.3d at 854.  The proposed summary charts purport to reflect various 
“Activity Type[s]” for certain IP addresses selected by the defense, 
with descriptions for each of those activities.  However, the charts 
do not include dates for any of these activities, which is a critical 
component in providing context for the information supposedly 
summarized for the jury’s benefit.  Moreover, while certain of the IP 
addresses the defense have chosen resolve to a specific subscriber 
name, physical address, and/or email address, at least three of the 
charts do not have any subscriber information whatsoever, further 
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demonstrating how this summary information cannot aid the jury in its 
evaluation of the evidence.  See, e.g., United States v. Oloyede, 933 
F.3d 302 (4th Cir. 2019) (summary charts “failed to comport with Rule 
of Evidence 1006 because of their selectivity, as “[t]hey did not 
fully represent the accounts that they were purportedly 
summarizing”). 
The proposed summary charts here, which defendant intends to 
offer as evidence that will go back to the jury room, will only raise 
more questions than they answer.  Defendant should be limited to 
using the non-voluminous materials underlying the summary charts to 
explore issues with an appropriate witness; defendant should not be 
allowed to shoehorn in this unintelligible and incomplete purported 
summarization of this evidence. 
Finally, defendant has yet to identify the proposed summary 
witness that will serve as the sponsoring witness for the subject 
charts.  The government thus does not have any information about the 
proposed witness’s basis for knowledge of the underlying information 
in the chart nor the role they played in synthesizing and compiling 
the summary charts.  The summary witness must have personal knowledge 
under Federal Rule of Evidence 602 in order to serve in the capacity 
of a summary witness.  See, e.g., Aubrey, 800 F.3d at 1129 (no error 
to admit testimony of summary witness where court “properly 
restricted his testimony to the areas in which he had personal 
knowledge (the documents, investigation, and the methods he used to 
prepare his summary) and prevented him from providing in-depth 
analysis of various accounting methods”).  The government’s concerns 
about the foundation for the summary witness’s testimony are 
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compounded by the significant issues with the content of the summary 
charts identified above. 
Thus, defendant’s proposed summary charts and summary witness 
fail to meet the foundational and admissibility requirements for this 
proposed evidence under Rule 1006, and the Court should exclude the 
proffered summary charts and summary witness. 
B. 
The Summary Charts Should Also Be Excluded Under Rule 403 
Defendant’s proposed summary charts also should be excluded 
because any limited probative value from these exhibits is 
substantially outweighed by the danger of confusing the issues and 
misleading the jury.  Fed. R. Evid. 403. 
As explained above, the summary exhibits offer minimal probative 
value given their incompleteness, selectivity, and lack of temporal 
context.  Defendant’s attempt to focus the jury on the connection 
between certain stolen or synthetic identities at certain addresses 
but not others once again disregards one of the government’s central 
theories in the superseding indictment and at trial: the defendants 
acted in concert in possessing and using the stolen and synthetic 
identities and other individual and business entity information to 
submit fraudulent COVID-19 disaster relief loan applications and 
launder the proceeds through bank accounts they controlled.  The 
First Superseding Indictment embraces and reflects this theory, 
recognizing that the defendants submitted and caused to be submitted 
fraudulent loan applications.  Defendant’s selective identification 
of certain logins, account accesses, and applications from certain IP 
addresses thus carries little probative weight in isolation when 
considered in the overall context of the charges and evidence in this 
case. 
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On the other side of the balance, the proposed summary charts 
will significantly confuse the issues and mislead the jury.  The 
charts are confusing on their face, given the lack of any dates on 
all of the charts and the lack of subscriber information on at least 
three of them.  The summary charts also do not provide further 
context as to the overall number of IP address to which the summary 
witness had access and reviewed in compiling this selection of 
information.  Thus, should they come into evidence, the purported 
summary charts will mislead the jury as to the government’s efforts 
to obtain IP address information in the course of its investigation.  
On balance, defendant’s proposed summary charts will 
substantially confuse the issues and mislead the jury, far 
outweighing any limited probative value from this proposed evidence.  
The Court should exclude defendant’s summary charts and summary 
witness for this reason as well.  
IV. 
CONCLUSION 
For the foregoing reasons, the government respectfully requests 
that this Court exclude defendant Richard Ayvazyan’s proposed summary 
charts and summary witness. 
 
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