First Notice of Motion and Motion for New Trial If Motion for Acquittal — USA v. Ayvazyan et al. (Dkt. 687, C.D. Cal.)

Record facts

U.S. District Court for the Central District of California · No. 2:20-cr-00579-SVW · Doc. 687 · 2021-07-12 · Docket on CourtListener

Full text

1
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
 
 
Thomas A. Mesereau Jr., 
Mesereau Law Group P.C. 
10100 Santa Monica Blvd. Suite 300 
Los Angeles, CA 90067 
310-651-9960 
mesereau@mesereaulaw.com 
 
Jennifer J. Wirsching 
Attorney at Law  
1935 Alpha Rd, Suite 216 
Glendale, CA 91208 
424-902-9280 
wirschinglaw@outlook.com 
 
 
Counsel for Artur Ayvazyan  
 
 
 
UNITED STATES DISTRICT COURT 
 
CENTRAL DISTRICT OF CALIFORNIA 
 
 
UNITED STATES OF AMERICA, 
 
 
 
   Plaintiff, 
 
 
 
v. 
 
ARTUR AYVAZYAN 
 
 
 
   Defendant. 
  
Case No. 20:CR-00579-SVW 
 
RULE 33 MOTION FOR NEW 
TRIAL IF RULE 29 MOTION 
(DKT. 686) IS DENIED 
 
 
  
 
 
 
Defendant, Artur Ayvazyan, moves this Honorable Court for a new trial on 
all counts pursuant to Federal Rule of Criminal Procedure 33 should the Court 
deny Defendant’s Motion for Acquittal. Defendant also hereby adopts, to the 
extent applicable to him, any arguments and authorities for granting a new trial 
made by any of his codefendants.   
 
 
Case 2:20-cr-00579-SVW   Document 687   Filed 07/12/21   Page 1 of 11   Page ID #:11123

 
 
 
 
 
2
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
 
 
I. LEGAL STANDARDS 
 
 
Federal Rule of Criminal Procedure 33 provides that “[u]pon the 
defendant’s motion, the court may vacate any judgment and grant a new trial if 
the interest of justice so requires.” Fed. R. Crim. P. 33(a). “[T]he trial court, on a 
motion for new trial, has [ ] broad powers to examine errors which may have 
been committed during the course of the trial,” United States v. Simms, 508 F. 
Supp. 1188, 1203 (W.D. La. 1980), “and even a single error during the trial 
process could, if of sufficient magnitude, warrant a new trial.” Id. (citations 
omitted). 
 
Rule 33 also authorizes a new trial where the jury’s verdict is against the 
weight of the evidence. See, e.g., Tibbs v. Fla., 457 U.S. 31, 37-38 (1982). 
United States v. Robertson, 110 F.3d 1113, 1118-20 (5th Cir. 1997); Simms, 508 
F. Supp. at 1202. “Clearly, the court must proceed with great caution in 
examining [this type of] motion for new trial; but to ensure that justice is done, 
courts are extended the broadest possible inquiry ….” Simms, 508 F. Supp. at 
1202 (citations omitted). “Under its broad power, the court may weigh the 
evidence and consider the credibility of the witnesses.” Id. (citation omitted). 
“This power is so encompassing that some courts even go so far as to say that the 
trial court sits, in effect, as a 13th juror to protect the interests of justice.” Id. 
(citations omitted); Robertson, 110 F.3d at 1118, 1120 (granting new trial: “ the 
Case 2:20-cr-00579-SVW   Document 687   Filed 07/12/21   Page 2 of 11   Page ID #:11124

 
 
 
 
 
3
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
 
 
evidence must preponderate heavily against the verdict, such that it would be a 
miscarriage of justice to let the verdict stand.”). 
 
Here, a new trial is warranted as the weight of the evidence was clearly 
towards acquittal.  
 
 
II. THE JURY’S VERDICT WAS AGAINST THE WEIGHT OF THE 
EVIDENCE 
 
 
The government relied at trial primarily upon evidence which was 
applicable to the guilt of Tamara Dadyan. Artur Ayvazyan testified, providing 
direct evidence of his innocence. The weight of the evidence at trial was contrary 
to the jury’s verdict. The weight of the evidence at trial showed that Artur 
Ayvazyan did not commit bank or wire fraud, did not commit aggravated identity 
theft, did not commit money laundering, did not conspire to do so, and did not 
aid or abet others in doing so.  
 
1. Government Exhibits from Weddington were the Sole Property of 
Tamara Dadyan 
 
 
The evidence produced at trial clearly weighed towards acquittal of Artur 
Ayvazyan. Artur Ayvazyan was the victim of a “guilt-by-association” verdict. 
The government relied at trial largely on evidence which only applied to Tamara 
Dadyan, not Artur Ayvazyan. The evidence produced at trial found at the 
Case 2:20-cr-00579-SVW   Document 687   Filed 07/12/21   Page 3 of 11   Page ID #:11125

 
 
 
 
 
4
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
 
 
Weddington residence all belonged to Tammy Dadyan (who had already plead 
guilty to conspiracy, bank and wire fraud, aggravated identity theft, and money 
laundering.) Government exhibit 57 detailing the documents and checks found at 
the Weddington residence were all found in Tammy Dadyan’s private office.  
 
Q Where does your wife operate that business? 
A She works from home, sir. She has a home office. 
Q And you have heard references to searches of the 
home office in your house. Is that her office? 
A Yes, sir. 
Q Is that your office? 
A No, sir. I don't have an office. 
TR 87, June 23, 2021 AM 
 
The documents found in Tamara Dadyan’s office were in her handwriting. 
 
Q Now, first let me ask you this. Do you -- have you 
seen your wife's handwriting? 
A We have been married for 16 years. I have seen her 
handwriting. 
Q Can you recognize her handwriting? 
A Yes, sir. 
Q Showing you this exhibit that is in evidence, 57B, 
Case 2:20-cr-00579-SVW   Document 687   Filed 07/12/21   Page 4 of 11   Page ID #:11126

 
 
 
 
 
5
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
 
 
page 3 of 8. Do you see handwriting on that document? 
A Yes, sir. 
Q And the document says, "Currently has personal and 
business need to add this new business address" -- or 
access and some other language. Whose handwriting is 
that? 
A That is Tammy's handwriting. 
Q Is that your handwriting? 
A No, sir. 
TR 90, June 23, 2021 AM (See also TR 91 – 95, 98-101 witness testimony 
that the writings were Tamara Dadyan’s) 
 
The checks found in Tamara Dadyan’s office were her checks. 
 
Q Please look at each of these six checks and see if 
you recognize them. 
A It is Tamara Dadyan, my wife's checks. 
Q Are any of these your checks? 
A No, sir. 
Q Moving along with the same exhibit. Do you see 
these checks? 
A Yes. 
Q Do any of these checks belong to you? 
A No, sir. 
Q Moving along, same exhibit in evidence. Do you see 
these, what appear to be copies of checks? 
A I do. 
Q Do you recognize anyone named in those checks  
Case 2:20-cr-00579-SVW   Document 687   Filed 07/12/21   Page 5 of 11   Page ID #:11127

 
 
 
 
 
6
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
 
 
A I don't. 
Q This is in the same exhibit in evidence. Do you 
see these documents? 
A Yes, sir. 
Q Did you recognize anyone mentioned on these checks? 
 
A No, sir. 
TR 95, June 23, 2021 AM (See also additional witness identification of Tamara 
Dadyan’s checks at TR 96) 
 
2. The Evidence Showed Artur Ayvazyan did not Know Tamara Dadyan 
Made False Statements when Filing Loan Applications for Allstate 
Towing and Transport 
 
  
The weight of the evidence showed that Artur Ayvazyan was unaware 
Tamara Dadyan had used false information when applying for Allstate Towing 
and Transport Loans. Thus, the weight of the evidence showed he did not 
commit bank or wire fraud, nor conspire or aid/abet another to do so. 
A No, sir. This time when my company was hit big 
with no business, and PPP announcements news, everything 
was on TV, on the radio. So I told Tammy, hey, do you 
think my company will qualify because I am really in need 
right now. She says, yes, I'll take care of it. And -- 
… 
And I said okay. She asked to see my 1099's from 2019. 
And she asked a copy of my driver's license and a voided 
Case 2:20-cr-00579-SVW   Document 687   Filed 07/12/21   Page 6 of 11   Page ID #:11128

 
 
 
 
 
7
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
 
 
check, which I provided, and that is it. Nothing else. 
Q Did you ever review any PPP loan application? 
A No, sir. 
Q Did anyone ever present you with one? 
A No, sir. 
Q Did you ever review the rules or regulations or 
laws that apply to the Small Business Administration? 
A No, sir. 
Q Did you submit that loan application? 
A No, sir. I was told I qualified due to the fact 
that I made certain amount of money in 2019, and the loss 
that I have done in 2020, that automatically qualifies 
me, and that is what I was told. 
Q Told by who? 
A My wife, Tammy. 
Q Who filled out the loan application? 
A She did. 
Q Who submitted the loan application? 
A She did. 
TR 108-109, June 23, 2021 AM 
 
Case 2:20-cr-00579-SVW   Document 687   Filed 07/12/21   Page 7 of 11   Page ID #:11129

 
 
 
 
 
8
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
 
 
3. The Evidence Showed Artur Ayvazyan did not Know Anna Dzukaeva 
was a Real Person 
 
 
A photograph of Anna Dzukeava’s name and date of birth were found on 
Artur Ayvazyan’s phone – but he had no idea the information was there. The 
weight of the evidence showed that Artur Ayvazyan did not commit aggravated 
identity theft. 
 
Q Okay. Now, in this trial, it has come to the attention of everyone that 
some what appear to be synthetic ID's, fake ID's, driver's licenses, 
whatever, were found on your phone?  
A Right. 
Q Did you put those on your phone? 
A No, sir. I don't even know the whereabouts until I 
got charged and I went through the phone and I saw all 
that stuff and I erased it right away. 
Q Do you know who put that information on your phone? 
A Most likely my wife. 
Q You did not do it? 
A No, sir. 
Q Did you invent any of those fake ID's or 
manufacture them at any point? 
Case 2:20-cr-00579-SVW   Document 687   Filed 07/12/21   Page 8 of 11   Page ID #:11130

 
 
 
 
 
9
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
 
 
A No, sir.   
TR 104 – 105, June 23, 2021 A.M. 
 
The weight of the evidence clearly shows that Artur Ayvazyan was 
unaware Anna Dzukaeva was a real person.  “Q do you know the name Anna 
Dzukaeva?” Artur Ayvazyan testified “A No, sir. Not until I was charged with 
her identify theft.”  
TR 115, 116 June 23, 2021 A.M. 
 
4. The Evidence Showed Artur Ayvazyan did not Launder Money 
 
 
The evidence showed Artur Ayvazyan repaid a loan from his brother with 
PPP funds he believed he had lawfully received. The evidence showed he did not 
attempt to conceal the source of funds. He used his own bank account, in his 
business name. 
Q And was that the money you talked about earlier 
when he helped you with your sea food business? 
A I mean, you know, throughout the years it accumulated and Tammy told 
me that, hey, Richard is buying a house. Do you think you could pay back 
the loan that, you know, all these years that you have had towards him. 
Case 2:20-cr-00579-SVW   Document 687   Filed 07/12/21   Page 9 of 11   Page ID #:11131

 
 
 
 
 
10
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
 
 
I said sure. So I reached out and I told him, hey, I have some money saved. 
I didn't tell him I got a loan. I said I got money saved and I want to help 
you out in your time of need and pay back the loan that I owe you. 
Q What accounts were those PPP funds put into? 
A One of them, the very first one was into my US bank account. And then 
I moved money from there to my corporation account. And the reason I 
did that is for tax purposes. 
TR 111 – 112, June 23, 2021 A.M. 
Q Did you think you were doing anything wrong when 
you tried to pay your brother back? 
A No. No. I mean, I was explain that it was to pay off debt -- and back 
debt or just stuff for the business. And since he invested in my business 
throughout the years, that is when I paid him back. I didn't know I was 
doing something wrong. 
TR 112-113, June 23, 2021 AM. 
 
 
 
 
 
III. 
 
CONCLUSION 
 
 
The government relied at trial primarily upon evidence which was 
applicable to the guilt of Tamara Dadyan. Artur Ayvazyan testified, providing 
direct evidence of his innocence. The weight of the evidence at trial was contrary 
Case 2:20-cr-00579-SVW   Document 687   Filed 07/12/21   Page 10 of 11   Page ID #:11132

 
2 
 
 
 
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
 
 
to the jury’s verdict. For the foregoing reasons, Artur Ayvazyan should be 
granted a new trial should his Motion for Judgement of Acquittal be denied. 
 
 
 
Dated: July 12, 2021  
 
Respectfully submitted, 
 
 
  
 
/s/Jennifer J. Wirsching 
 
 
  
 
Jennifer J. Wirsching 
 
 
  
 
Attorney for Artur Ayvazyan 
Case 2:20-cr-00579-SVW   Document 687   Filed 07/12/21   Page 11 of 11   Page ID #:11133

File and source

File

gov.uscourts.cacd.802533.687.0.pdf

Size

200,607 bytes

SHA-256

5ad4b8371c82d29bef25d2c91316b62086b5306a9e5dce05bee42902e7166701

Our copy

gov.uscourts.cacd.802533.687.0.pdf

Original

storage.courtlistener.com