Court filing
Opposition to Notice of Motion and Motion for New Trial And/Or Notice — USA v. Ayvazyan et al. (Dkt. 790, C.D. Cal.)
Filed July 22, 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 | 2021-07-22 |
U.S. District Court for the Central District of California · No. 2:20-cr-00579-SVW · Doc. 790 · 2021-07-22 · Docket on CourtListener
Full text
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
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
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
“Anton Kudiumov,”
ARMAN HAYRAPETYAN,
EDVARD PARONYAN,
aka “Edvard Paronian” and
“Edward Paronyan,” and
VAHE DADYAN,
No. CR 20-579(A)-SVW
GOVERNMENT’S OPPOSITION TO
DEFENDANT RICHARD AYVAZYAN’S
MOTION FOR NEW TRIAL AND/OR
JUDGMENT OF ACQUITTAL (ECF 683)
Case 2:20-cr-00579-SVW Document 790 Filed 07/22/21 Page 1 of 32 Page ID
#:13350
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
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 its opposition to
defendant Richard Ayvazyan’s motion for a new trial and/or judgment
of acquittal, which defendants Marietta Terabelian and Artur Ayvazyan
have joined (ECF 683, 688, 691).1 This opposition is based upon the
attached memorandum of points and authorities, the testimony and
exhibits admitted at trial, the stipulations of fact entered into
between the parties during trial, the files and records in this case,
and such further evidence and argument as the Court may permit.
Dated: July 22, 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
1 Defendant Artur Ayvazyan also filed his own motions for
judgment of acquittal and new trial, (ECF 686, 687), to which the
government will be responding separately.
Case 2:20-cr-00579-SVW Document 790 Filed 07/22/21 Page 2 of 32 Page ID
#:13351
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
TABLE OF CONTENTS
DESCRIPTION
PAGE
TABLE OF CONTENTS...................................................i
TABLE OF AUTHORITIES..............................................iii
MEMORANDUM OF POINTS AND AUTHORITIES................................1
I.
INTRODUCTION...................................................1
II.
RELEVANT LEGAL STANDARDS.......................................1
A.
Federal Rule of Criminal Procedure 29.....................1
B.
Federal Rule of Criminal Procedure 33.....................1
III. ARGUMENT.......................................................2
A.
The Government Proved the Fraud Conspiracy and Schemes....2
1.
The Government’s Evidence Was Overwhelming...........2
2.
The Court Correctly Denied Defendant’s Requested
Multiple-Conspiracies and Schemes Jury
Instructions.........................................3
B.
The Court’s Admission of “Reserve Identities” Evidence
and Exclusion of the State Case Does Not Warrant a New
Trial.....................................................6
C.
Defendant is Not Entitled to a New Trial on the
Aggravated Identity Theft Counts..........................8
1.
The Evidence Does Not Preponderate Heavily
Against the Aggravated Identity Theft Verdicts.......8
a.
Count 21 – Mark Zindroski.......................8
b.
Count 22 – Nazar Terabelian.....................9
2.
The Aggravated Identity Theft Instructions Were
Correct.............................................10
D.
The Government Proved Venue of the Wire Fraud Counts
by at Least a Preponderance of the Evidence..............12
1.
The Government’s Evidence of Venue Was Sufficient...12
2.
The Court’s Denial of Defendant’s Proposed
Special Verdict Form Does Not Warrant a New Trial...15
E.
Witness Anthony Farrer Did Not Perjure Himself...........16
Case 2:20-cr-00579-SVW Document 790 Filed 07/22/21 Page 3 of 32 Page ID
#:13352
ii
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
TABLE OF CONTENTS (CONTINUED)
DESCRIPTION
PAGE
F.
The Court Correctly Denied Defendant’s Motions to
Exclude the Government’s Summary Witnesses...............19
G.
The Court’s Jury Instructions Regarding the Money
Laundering Conspiracy Count Were Proper..................19
H.
The Government Adduced Sufficient Untainted Evidence
on All Counts of Conviction..............................22
I.
The Government Proved Forfeitability of the $451,185
in U.S. Currency and Six Watches by at Least a
Preponderance of the Evidence............................22
J.
Defendant Was Not Denied an Impartial Jury...............24
K.
There Was No Cumulative Error Warranting a New Trial.....25
IV.
CONCLUSION....................................................25
Case 2:20-cr-00579-SVW Document 790 Filed 07/22/21 Page 4 of 32 Page ID
#:13353
iii
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
TABLE OF AUTHORITIES
DESCRIPTION
PAGE
Cases
Jackson v. Virginia,
443 U.S. 307 (1979) ........................................... 1, 14
Killian v. Poole,
282 F.3d 1204 (9th Cir. 2002) .................................... 25
Sprint/United Management Co. v. Mendelsohn,
552 U.S. 379 (2008) ............................................... 7
United States v. 1982 Yukon Delta Houseboat,
774 F.2d 1432 (9th Cir. 1985) .................................... 22
United States v. Barragan,
871 F.3d 689 (9th Cir. 2017) ...................................... 4
United States v. Childs,
5 F.3d 1328 (9th Cir. 1993) ...................................... 13
United States v. de Cruz,
82 F.3d 856 (9th Cir. 1996) ...................................... 25
United States v. Fernandez,
388 F.3d 1199 (9th Cir. 2004) ............................... 3, 4, 5
United States v. George,
420 F.3d 991 (9th Cir. 2005) ..................................... 16
United States v. Harmon,
537 F. App’x 719 (9th Cir. 2013) ............................... 2, 6
United States v. Karterman,
60 F.3d 576 (9th Cir. 1995) ...................................... 25
United States v. Kranovich,
401 F.3d 1107 (9th Cir. 2005) ..................................... 1
Case 2:20-cr-00579-SVW Document 790 Filed 07/22/21 Page 5 of 32 Page ID
#:13354
iv
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
TABLE OF AUTHORITIES (CONTINUED)
DESCRIPTION
PAGE
United States v. Lapier,
796 F.3d 1090 (9th Cir. 2015) ..................................... 5
United States v. Lopez,
-- F.4th --, 2021 WL 2795426 (9th Cir. July 6, 2021) ............. 16
United States v. Lozoya,
982 F.3d 648 (9th Cir. 2020) ..................................... 16
United States v. Melrose East Subdivision,
357 F.3d 493 (5th Cir. 2004) ..................................... 22
United States v. Murray,
752 F. App’x 439 (9th Cir. 2018) ................................. 12
United States v. Osuna-Alvarez,
788 F.3d 1183 (9th Cir. 2015) .................................... 12
United States v. Pace,
314 F.3d 344 (9th Cir. 2002) ......................... 12, 13, 15, 16
United States v. Payne,
944 F.2d 1458 (9th Cir. 1991) .................................... 25
United States v. Pimentel,
654 F.2d 538 (9th Cir. 1981) ...................................... 2
United States v. Ruelas-Arreguin,
219 F.3d 1056 (9th Cir. 2000) .................................... 15
United States v. Singh,
979 F.3d 697 (9th Cir. 2020) ...................................... 7
United States v. Torres,
794 F.3d 1053 (9th Cir. 2015) ..................................... 2
United States v. Von Stoll,
726 F.2d 584 (9th Cir. 1984) ..................................... 21
Case 2:20-cr-00579-SVW Document 790 Filed 07/22/21 Page 6 of 32 Page ID
#:13355
v
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
TABLE OF AUTHORITIES (CONTINUED)
DESCRIPTION
PAGE
United States v. Young,
17 F.3d 1201 (9th Cir. 1994) ..................................... 18
Statutes
18 U.S.C. § 2(b)................................................ 9, 15
18 U.S.C. § 1028A(a)(1)............................................ 12
18 U.S.C. § 1343................................................... 20
18 U.S.C. § 1344(2)............................................ 20, 21
18 U.S.C. § 1349................................................... 20
18 U.S.C. § 1956(c)(1)............................................. 20
Rules
Federal Rule of Criminal Procedure 12(b)(3)(D)...................... 7
Federal Rule of Criminal Procedure 29............................... 1
Federal Rule of Criminal Procedure 33............................... 1
Federal Rule of Evidence 403........................................ 7
Other Authorities
Cassella, S., Asset Forfeiture Law in the United States § 25-2..... 22
Ninth Circuit Model Instruction No. 8.83........................... 11
Ninth Circuit Model Instruction No. 8.147...................... 19, 20
Case 2:20-cr-00579-SVW Document 790 Filed 07/22/21 Page 7 of 32 Page ID
#:13356
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
MEMORANDUM OF POINTS AND AUTHORITIES
I.
INTRODUCTION
Defendant Richard Ayvazyan’s motion largely recycles arguments
the Court already rejected with no new facts or legal arguments that
warrant reconsideration. Defendant’s few new arguments distort the
record and misstate the law. Nothing in defendant’s motion suggests
error and, even if it did, any such error would be harmless given the
overwhelming evidence of guilt. The motion should be denied.
II.
RELEVANT LEGAL STANDARDS1
A.
Federal Rule of Criminal Procedure 29
Courts may not set aside a jury’s verdict and enter a judgment
of acquittal unless no reasonable juror could have voted to convict.
“[T]he relevant question is whether, after viewing the evidence in
the light most favorable to the prosecution, any rational trier of
fact could have found the essential elements of the crime beyond a
reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319-20 (1979).
Courts “must respect the exclusive province of the jury to determine
the credibility of witnesses, resolve evidentiary conflicts, and draw
reasonable inferences from proven facts, by assuming that the jury
resolved all such matters in a manner which supports the verdict.”
United States v. Kranovich, 401 F.3d 1107, 1112-13 (9th Cir. 2005).
B.
Federal Rule of Criminal Procedure 33
Although courts may order new trials “if the interest of justice
so requires,” Fed. R. Crim. P. 33(a), the remedy should be reserved
for “exceptional cases in which the evidence preponderates heavily
1 See also the discussion of the relevant legal standards in the
government’s concurrently-filed opposition to defendant Vahe Dadyan’s
post-trial motion (ECF 789), which is incorporated by reference.
Case 2:20-cr-00579-SVW Document 790 Filed 07/22/21 Page 8 of 32 Page ID
#:13357
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
against the verdict.” United States v. Pimentel, 654 F.2d 538, 545
(9th Cir. 1981). Courts should not grant new trials based on
harmless errors. See United States v. Harmon, 537 F. App’x 719, 720
(9th Cir. 2013); see also United States v. Torres, 794 F.3d 1053,
1063 (9th Cir. 2015) (error is harmless where it did not likely
affect the verdict).
III. ARGUMENT
A.
The Government Proved the Fraud Conspiracy and Schemes
1.
The Government’s Evidence Was Overwhelming
The Court already rejected defendant’s challenges to the
government’s evidence of a single overarching conspiracy, finding the
evidence was “overwhelming and unrebutted.” (ECF 664 at 12.) The
Court’s July 2, 2021 Order (the “Order”) includes an exhaustive
analysis of the evidence and arguments and concludes that “no
reasonable jury could reasonably find that Richard Ayvazyan was only
a member of separate and unrelated conspiracies.” (Id. at 11.) The
Court explained that, to the extent there were even subgroups within
the conspiracy, “the overwhelming evidence shows that (1) the two
alleged groups had the exact same objective (i.e., obtaining
fraudulent PPP and EIDL loans); (2) both alleged groups accomplished
that goal using the exact same methods (i.e., the same set of fake
and synthetic identities and entities); and (3) all of the defendants
– in particular Richard Ayvazyan and Marietta Terabelian – obtained
and concealed their benefits through their coconspirators’ use of
these methods.” (Id. at 14.)
Defendant now repeats his claim that the evidence of a single
overarching conspiracy was insufficient; however, he does not make
any factual or legal arguments that would warrant the Court’s
Case 2:20-cr-00579-SVW Document 790 Filed 07/22/21 Page 9 of 32 Page ID
#:13358
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
reconsideration of its prior ruling. Accordingly, the Court should
deny defendant’s motion on the same grounds as before.
2.
The Court Correctly Denied Defendant’s Requested
Multiple-Conspiracies and Schemes Jury Instructions
In its Order, the Court explained why defendant’s request for a
multiple-conspiracies instruction was “inconsistent with the law and
unsupported by the evidence at trial.” (See ECF 664 at 9-17.)
Defendant does not offer any new evidence or law for the Court to
reconsider its prior careful analysis. Nonetheless, he continues to
press his misconception about the applicability of the multiple-
conspiracies instruction with several erroneous arguments.
First, defendant’s reliance on United States v. Fernandez, 388
F.3d 1199 (9th Cir. 2004), is misplaced. (See ECF 683 (“Mot.”) at
4.) Putting aside that there was overwhelming evidence of a single
conspiracy here, Fernandez actually undermines the applicability of
defendant’s multiple-conspiracies theory. Specifically, Fernandez
noted that a multiple-conspiracies instruction is warranted “only in
the event that the evidence showed other conspiracies that were
unrelated to or separate from the conspiracy charged, because it is
well-established that ‘a single conspiracy may involve several
subagreements or subgroups of conspirators.’” 388 F.3d at 1248 n.34.
In its Order, the Court analyzed the abundant Ninth Circuit authority
supporting this well-established principle, for which defendant has
no response. (ECF 664 at 10 (collecting cases).)2
2 Defendant also argues that a purported “multiple schemes” jury
instruction was required (ECF 683 at 4-5), as he did in his proposed
instructions at trial (see ECF 372 at 15). But neither the Ninth
Circuit model instructions nor the cases defendant cites support a
“multiple schemes” instruction. (See ECF 557 at 10-12.) Moreover,
(footnote cont’d on next page)
Case 2:20-cr-00579-SVW Document 790 Filed 07/22/21 Page 10 of 32 Page ID
#:13359
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
Second, defendant once again contends the “[Manuk] Grigoryan and
[Tamara] Dadyan groups” represented two “different conspiracies and
corresponding schemes embedded within the charged conspiracy and
scheme.” (Mot. at 5-6.) Defendant acknowledges both purported
groups were engaged in PPP loan fraud in 2020, but describes other
fraudulent activities in which the individuals in these “groups”
supposedly engaged (albeit with little or no citation to trial
evidence). (See id.) But as the Court already found, “even if the
evidence only established that the charged conspiracy was comprised
of a Grigoryan subgroup and a Dadyan subgroup, such proof by itself
would not allow a reasonable jury to find the defendants were only
involved in multiple conspiracies and not the larger conspiracy
charged in the indictment.” (ECF 664 at 10.)
Nor did the evidence at trial support “separate, unrelated
conspiracies led by Tamara Dadyan and Manuk Grigoryan” or lack in
“conspiratorial interconnectivity and interdependence” of a single
conspiracy. (Mot. at 5-6.) Rather, there was “overwhelming and
unrebutted” evidence of the overarching conspiracy, including the
common goals, means, fraudulent identities and documents, and
beneficiaries of the overall conspiracy. (See ECF 664 at 11-14.)
Third, defendant’s claim that “he was denied a jury instruction
on his theory of the defense,” (Mot. at 6), ignores that defense
instructions must be both “supported by the law” and have “some
foundation in the evidence.” United States v. Barragan, 871 F.3d
689, 710 (9th Cir. 2017). Defendant’s multiple-conspiracies or
schemes instructions were not supported by the law because, once
the trial evidence did not support a “multiple schemes” instruction
for the same reason it did not support a multiple conspiracies
instruction. (ECF 664 at 11-14.)
Case 2:20-cr-00579-SVW Document 790 Filed 07/22/21 Page 11 of 32 Page ID
#:13360
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
again, a multiple-conspiracies instruction is warranted only where a
case involves multiple “unrelated” or “separate” conspiracies.
Fernandez, 388 F.3d at 1248 n.34. This case simply did not fit the
bill. Because this case involved, at most, “several subagreements or
subgroups of conspirators,” id., defendant’s proposed instructions
also lacked an adequate foundation in the evidence. As the Court
already concluded after careful analysis of “the evidence actually
presented at trial,” “no reasonable juror could reasonably find two
separate and unrelated conspiracies” here. (ECF 664 at 14, 16.)
Finally, there is no merit to defendant’s claim that “a specific
unanimity instruction was required because of the specter of multiple
conspiracies and schemes.” (Mot. at 6-7.) Unlike in United States
v. Lapier, 796 F.3d 1090 (9th Cir. 2015), upon which defendant solely
relies, there was no “genuine possibility of jury confusion” about
the charged wire/bank fraud conspiracy here. See id. at 1096-97
(specific unanimity instruction necessary where “perfect storm” of
potential “jury confusion,” including where “indictment was broadly
worded and did not name the coconspirators,” the “evidence adduced at
trial credibly showed at least two separate conspiracies” with one
beginning after the other ended, and “even the prosecutor admitted
that the government may have proved two separate conspiracies”).
Moreover, in addition to the general unanimity instruction (ECF 609
at 44), the Court instructed the jury that it “must find that there
was a plan to commit at least one of the crimes alleged in the
indictment as an object of the conspiracy with all of you agreeing as
to the particular crime which the conspirators agreed to commit.”
(Id. at 23.)
Case 2:20-cr-00579-SVW Document 790 Filed 07/22/21 Page 12 of 32 Page ID
#:13361
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
In any event, the jury instructions taken as a whole allowed
defendant to argue, as he did in closing, that the government did not
prove his participation in the single charged conspiracy, and any
error in not providing the proposed multiple-conspiracies instruction
was therefore harmless. See Harmon, 537 F. App’x at 720. That the
jury rejected defendant’s argument is not a basis for a new trial.
B.
The Court’s Admission of “Reserve Identities” Evidence and
Exclusion of the State Case Does Not Warrant a New Trial
Defendant contends a new trial is necessary because the Court
erred in admitting “reserve identities” evidence while also excluding
the testimony of LAPD Detective Lyle Barnes. According to defendant,
this prevented him from establishing that the “reserve identities”
evidence “was actually part of a separate mortgage fraud scheme
(unrelated to PPP or EIDL applications) operated by Tamara Dadyan,”
which purportedly supported his defense theory. (Mot. at 8-9.)
Defendant is wrong. The Court carefully analyzed the “reserve
identities” evidence to ensure that “each piece of proffered
evidence” was, at a minimum, inextricably intertwined with the
fraudulent PPP/EIDL scheme. (ECF 478 at 15.) The Court required the
government to submit supplemental briefing identifying “how each
piece of evidence was part of the ‘overall scheme’ to obtain
fraudulent PPP and EIDL loans.” (Id.) In its submission, the
government described in detail the relationship of the “reserve
identities” evidence to the overall scheme, with supporting exhibits.
(See ECF 506, 580-583.) The Court “closely reviewed the proffered
evidence” and concluded the “reserve identities” evidence was “highly
probative of the methods and instruments Defendants used to execute
the conspiracy alleged in the indictment.” (ECF 517 at 1.)
Case 2:20-cr-00579-SVW Document 790 Filed 07/22/21 Page 13 of 32 Page ID
#:13362
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
Separately, the Court carefully considered defendant's proffered
evidence with respect to Detective Barnes and the unrelated
California mortgage fraud prosecution. (ECF 664 at 1-3.) The Court
concluded the probative value of the testimony was substantially
outweighed by the danger of unfair prejudice, cumulative presentation
of evidence, confusion of the issues, misleading the jury, undue
delay, and wasting time. (Id. (analyzing each factor under FRE
403).) Defendant offers nothing to overcome the Court’s Rule 403
analysis, for which the Court has broad discretion.3 See
Sprint/United Management Co. v. Mendelsohn, 552 U.S. 379, 384 (2008).
Defendant claims that the fact that the “reserve identities”
evidence could have been used for both the PPP/EIDL scheme and the
mortgage fraud scheme is “fatal to the single, unitary conspiracy and
scheme charged by the government in this case.” (Mot. at 8.) This
is nonsensical. Evidence regarding the same synthetic identities and
businesses used to advance the fraudulent PPP/EIDL scheme, such as
Viktoria Kauichko, Anton Kudiumov, Medet Murat, EM Construction, and
Sabala Construction, was found at both the Canoga apartment (leased
by defendant Grigoryan) and the Weddington residence (defendant
Tamara Dadyan’s home). (See, e.g., GEX 10, 13.b, 13.f, 24.e, 54.b,
54.e, 57.g.) As previously explained, there was “overwhelming and
unrebutted” evidence of a single, overarching conspiracy (ECF 664 at
3 Defendant contends only that any unfair prejudice to
codefendant Artur Ayvazyan could have been remedied by severance.
The government is not aware of defendant moving to sever on this
basis, thus waiving any such argument. See Fed. R. Crim. P.
12(b)(3)(D) (severance must be sought pretrial); United States v.
Singh, 979 F.3d 697, 732 (9th Cir. 2020) (severance must be renewed
at the close of evidence). In any event, the Court found the
probative value of the proffered evidence was substantially
outweighed by the other Rule 403 factors, such that it would not have
been admissible even if defendant had been tried alone.
Case 2:20-cr-00579-SVW Document 790 Filed 07/22/21 Page 14 of 32 Page ID
#:13363
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
12), and evidence regarding the state mortgage fraud scheme had no
probative value bearing on that analysis.
C.
Defendant is Not Entitled to a New Trial on the Aggravated
Identity Theft Counts
1.
The Evidence Does Not Preponderate Heavily Against the
Aggravated Identity Theft Verdicts
Defendant’s claim that the aggravated identity theft evidence
weighs heavily against the verdicts (Mot. at 9-11) is based on
misstatements of law and fact, and should be rejected.
a.
Count 21 – Mark Zindroski
The government presented overwhelming evidence that defendant
transferred, used, and possessed Mark Zindroski’s identity during and
in relation to a PPP fraud scheme involving Mr. Zindroski’s company,
Top Quality Contracting (“TQC”). The evidence showed: (i) the
fraudulently obtained PPP funds were wired to an account in the name
of TQC for which Mark Zindroski and Iuliia Zhadko were co-signers
(GEX 1.f at 1; GEX 2.e at 57); (ii) the government seized from
defendant a physical credit card in the name of TQC/Iuliia Zhadko
(GEX 76.b); (iii) the telephone number (ending 4170) listed on TQC’s
bank records and email correspondence was associated with defendant
and used to exchange texts with defendant T. Dadyan (GEX 1.f at 1;
GEX 6.p at 10; GEX 10); and (iv) defendant and T. Dadyan’s texts
discussed using TQC in furtherance of the fraud (GEX 10 at 8, 40).
Ignoring this overwhelming evidence, defendant points to a
patchwork of purported evidence he claims shows that it was defendant
Grigoryan, not defendant, who used Zindroski’s identity. (Mot. at 9-
10.) His argument misstates the record. For example, he claims the
movement of money from TQC’s bank account points to Grigoryan because
that account wrote checks to Grigoryan’s aunt, Anna Manukyan. (Mot.
Case 2:20-cr-00579-SVW Document 790 Filed 07/22/21 Page 15 of 32 Page ID
#:13364
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
at 10.) However, the evidence showed that defendant also used Anna
Manukyan’s identity: he possessed digital photographs of her driver’s
license and credit card. (GEX 19.b, 19.c.) Defendant also claims an
IP address used to submit a PPP application on behalf of TQC tied
back to the subscriber name Viktoria Kauichko at an apartment
Grigoryan rented on Canoga Avenue. However, the evidence showed that
defendant and his wife (defendant Terabelian) used the Kauichko
identity and shared the Canoga Avenue apartment with Grigoryan (and
even used a Viktoria Kauichko credit card, later found in defendant’s
and his wife’s possession, to pay the rent). (See, e.g., GEX 37.c at
1; GEX 42; GEX 76.a; GEX 76.b; GEX 88 at 28, 34, 39, 41.)4
Defendant also misstates the law. Even if some evidence did
show that Grigoryan also used Mark Zindroski’s identity, the evidence
nevertheless supported the jury’s guilty verdict because the first
superseding indictment also alleged a willful causation theory of
liability under 18 U.S.C. § 2(b) as part of this count.
b.
Count 22 – Nazar Terabelian
The government also presented overwhelming evidence that
defendant used and possessed the identity of Nazar Terabelian during
and in relation to a scheme involving the submission of a fraudulent
PPP application on behalf of Mod Interiors Inc. The evidence showed
that: (i) defendant’s phone (seized on November 5, 2020) contained
4 Defendant also conducted a comparison of certain IP addresses
purportedly used by Manuk Grigoryan, Mark Zindroski, and TQC that is
confusing, unreliable, and without support in the record or the
facts. (ECF 683 at 10.) Unable to find a complete match of the
numbers used in the IP addresses, defendant instead settled for
drawing conclusions about who used the IP addresses based on a
partial match of some of the numbers (i.e., all the IP addresses
begin with “174.193”). (Id.) Defendant’s incomplete analysis and
‘junk science’ approach should be rejected.
Case 2:20-cr-00579-SVW Document 790 Filed 07/22/21 Page 16 of 32 Page ID
#:13365
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
digital photographs of credit cards in the names of Mod Interiors and
Nazar Terabelian, handwritten notes relating to PPP applications for
Mod Interiors, and log-in information for email and bank accounts for
Nazar Terabelian (GEX 19.c); (ii) the fraudulently obtained PPP funds
were wired to an account in the name of Mod Interiors and used to
purchase 60 gold coins, diamonds, and luxury furniture using the name
Viktoria Kauichko (GEX 115); and (iii) 60 gold coins were later found
in defendant’s residence (which he also purchased using stolen PPP
funds). (See GEX 34; GEX 38; GEX 39 at 17, 27; GEX 56.)
Defendant argues that a new trial is warranted because the
government purportedly interviewed the owner of the store from which
the 60 gold coins were purchased and “failed to adduce any evidence
whether the gold coins in [defendant’s] home were the coins purchased
in Nazar Terabelian’s name.” (Mot. at 11.) Defendant is mistaken.
The owner declined to be interviewed. Defendant also fails to
explain why such evidence was necessary given that the owner provided
certified business records documenting the purchase of the 60 gold
coins found at defendant’s home in the name of Viktoria Kauichko (an
alias used by defendant’s wife) with money fraudulently obtained
using the identity of his wife’s deceased father.5
2.
The Aggravated Identity Theft Instructions Were
Correct
Defendant also challenges the inclusion of the Ninth Circuit’s
model instruction for “possession,” claiming that this instruction,
5 Defendant also argues that the government relied on an account
statement from the wrong bank as proof that defendant used Nazar
Terabelian’s identity. (ECF 683 at 10.) This too is incorrect. The
government presented the account statement at issue (GEX 90) to show
that defendant had previously used Mod Interiors to fraudulently
apply for a PPP loan and thus had an opportunity to later use Mod
Interiors to fraudulently apply for a second PPP loan.
Case 2:20-cr-00579-SVW Document 790 Filed 07/22/21 Page 17 of 32 Page ID
#:13366
11
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
“coupled with the aiding and abetting instruction, permitted the jury
to find that Ayvazyan aided and abetted or caused aggravated identity
theft simply by possessing another person’s identification
information.” (Mot. at 11.) This is incorrect. The Court’s
instruction on aggravated identity theft, which followed the Ninth
Circuit model instruction and governing law, made clear that
defendant’s possession of the specified means of identification must
have been “without legal authority” and “during and in relation to”
the specific bank or wire fraud count charged in the indictment.
(ECF 609 at 41-42; see also Ninth Circuit Model Instruction No.
8.83.) The jury could not have convicted defendant of aggravated
identity theft for possession alone, regardless of the appropriate
and correct inclusion of instructions regarding aiding and abetting
and the meaning of “possession.”6
Moreover, defendant misstates the law in arguing that the
Court’s instructions constituted an “incorrect application of the
law.” (Mot. at 11.) Defendant claims that the jury was permitted to
convict him for “possession of Nazar Terabelian’s driver’s license,
without any evidence Ayvazyan used the license to commit the specific
wire fraud charged in Count 11, a required element of the crime.”
(Id.) But the jury was not required to find that defendant “used”
Nazar Terabelian’s driver’s license (although there was overwhelming
evidence that he did); the aggravated identity theft statute
prohibits use or possession (or transfer), without lawful authority,
6 Defendant challenges the instructions for possession and
aiding and abetting as applied to both Counts 21 and 22. But Count
21 did not allege aiding and abetting, and defendant’s (erroneous)
arguments as to jury confusion regarding aggravated identity theft
have no possible application to that count. His argument for a new
trial as to Count 21 should be rejected for this reason as well.
Case 2:20-cr-00579-SVW Document 790 Filed 07/22/21 Page 18 of 32 Page ID
#:13367
12
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
during and in relation to a specified predicate offense. 18 U.S.C.
§ 1028A(a)(1); see also United States v. Osuna-Alvarez, 788 F.3d
1183, 1185 (9th Cir. 2015). Defendant’s citation to an unpublished
opinion (United States v. Murray, 752 F. App’x 439 (9th Cir. 2018))
in which the court appears to have addressed only the “use” prong is
misleading and inapposite. The Court properly instructed the jury,
and there is no basis for a new trial on Counts 21 and 22.
D.
The Government Proved Venue of the Wire Fraud Counts by at
Least a Preponderance of the Evidence
1.
The Government’s Evidence of Venue Was Sufficient
The government adduced sufficient proof at trial for a rational
juror to find venue in this District for each of the wire fraud
counts by a preponderance of the evidence. The schemes were carried
out in this District by defendants who all lived in or around Los
Angeles within a relatively brief period of months during which
California state and local authorities had declared states of
emergency and Los Angeles residents were subject to stay-at-home
orders.7 Defendant’s challenge to venue should be rejected.8
Defendant correctly recognizes that United States v. Pace, 314
F.3d 344 (9th Cir. 2002), controls the venue analysis for wire fraud.
But defendant misconstrues the government’s evidence of venue and the
application of Pace here. As Pace requires, each of the eleven
charged wire transmissions here “originated, passed through, or was
received” in, or was “orchestrated” from, the Central District of
7 Special Agent Geffrey Clark testified that his investigation
confirmed the defendants lived and were actually present in this
District from March through August 2020. (6/22/21 Tr. at 9:1-12:4.)
8 In the text messages the government presented at trial,
defendant discussed “wires” over 40 times. (GEX 10.)
Case 2:20-cr-00579-SVW Document 790 Filed 07/22/21 Page 19 of 32 Page ID
#:13368
13
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
California. Id. at 349-50. The evidence demonstrates either a
“direct or causal connection” between each misuse of wires and this
District, which satisfies venue for wire fraud.9 Id.
Three of the charged wire transmissions (Counts 2, 9, and 12)
are supported by evidence of a direct connection to this District.
Bank records show the wire underlying Count 2 terminated at a JP
Morgan Chase location in Van Nuys, California (GEX 1.a at 22), and
the wire underlying Count 9 was initiated from a JP Morgan Chase
location in Laurel Canyon, California. (GEX 1.1 at 1084-86.) And IP
subscriber records show the wire underlying Count 12 was initiated
from Encino, California. (GEX 2.q at 5; GEX 73.c at 12.)
The other wire fraud counts are supported by evidence of a
causal connection to this District, which Pace describes as
“orchestration” of the wire transmission. Pace, 314 F.3d at 349-50.
For example, four of the charged wire transmissions (Counts 3, 7, 8,
and 10) were caused by defendants’ submission of fraudulent PPP and
EIDL applications via the Internet from their residences in this
District. IP subscriber records show that the PPP applications that
caused the wires underlying Counts 3 and 7 were submitted via
Internet from Encino, California (GEX 2.f at 37; GEX 2.k at 47; GEX
73.c at 12); the EIDL application that caused the wire underlying
Count 8 was submitted via Internet from Sun Valley, California (GEX
2.h at 38; GEX 73.f at 2); and the EIDL application that caused the
wire underlying Count 10 was submitted via Internet from Woodland
Hills, California. (GEX 2.l at 5; GEX 73.c at 5.)
9 Venue can be based on circumstantial evidence alone. See
United States v. Childs, 5 F.3d 1328, 1332 (9th Cir. 1993).
Case 2:20-cr-00579-SVW Document 790 Filed 07/22/21 Page 20 of 32 Page ID
#:13369
14
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
There is also substantial evidence showing that the remaining
four charged wire transmissions (Counts 4, 5, 6, and 11) were caused
by defendants from within this District. Bank records show that
defendant and his wife, defendant Terabelian, made retail purchases
and bank deposits in and around Los Angeles around the time they
caused the wires underlying Count 4 (GEX 1.f at 23; GEX 89 at 30; GEX
90 at 19) and Count 11 (GEX 1.p at 16; GEX 87 at 4; GEX 88 at 40; GEX
89 at 10).10 Similarly, defendant Edvard Paronyan made ATM
withdrawals within this District around the time he caused the wire
underlying Count 6 (GEX 1.l at 15). And mountains of evidence seized
from defendant T. Dadyan’s residence on Weddington Street, IP address
records, and agent testimony show she submitted dozens of fraudulent
PPP and EIDL applications that caused wires to her bank accounts from
her home office, from which the government seized hard copy documents
related to dozens of PPP loans including the PPP loan and applicant
used for Count 5. (See, e.g., 6/17/21 P.M. Tr. at 65:19-66:13; GEX
57.e at 88-90; 57.g at 30.) The trial evidence relating to venue for
Counts 3 and 7 also confirms that, around the same time in May when
defendant T. Dadyan submitted the application that caused the wire
underlying Count 5 (i.e., May 8), she and her husband submitted other
fraudulent PPP applications from their residence. (See, e.g., Count
3 on May 1 and Count 7 on May 18.) Viewing all of that evidence in
the light most favorable to the government and drawing all reasonable
inferences in favor of the verdict, see Jackson, 443 U.S. at 319,
326, venue was adequately established.
10 The Wells Fargo branch at which defendant opened the account
that received the wire is located in Woodland Hills. (GEX 1.f at 5.)
Case 2:20-cr-00579-SVW Document 790 Filed 07/22/21 Page 21 of 32 Page ID
#:13370
15
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
Although defendant proposes to limit the wire “orchestration”
theory of venue to cases where a defendant is charged with an 18
U.S.C. § 2(b) willful causation theory (Mot. at 13), nothing in Pace
supports that limitation. To the contrary, Pace, which makes no
mention of 18 U.S.C. § 2(b), broadly describes the “essential conduct
prohibited by § 1343 to be the misuse of wires as well as any acts
that cause such misuse.” 314 F.3d at 349. Consistent with that
principle, defendant and his codefendants were charged with
“transmit[ting] and caus[ing] the transmission” of the alleged wire
transmissions in Counts 2 through 12. (ECF 154 at 29.) Defendants
also were alleged to have aided and abetted each other in causing the
wire transmissions, which necessarily included, as the jury was
instructed, having “aided, counseled, commanded, induced, or
procured” another person in connection with an element of the
offense. (Id.; ECF 609 at 33.) For the eight wires that did not
necessarily pass directly through this District, the jury was
entitled to consider whether defendants “orchestrated” or caused
those wires to be transmitted from this District.
Thus, the evidence sufficed for a rational juror to find venue
for each wire fraud count by a preponderance of the evidence,11 and
the evidence did not preponderate heavily against the verdicts.
2.
The Court’s Denial of Defendant’s Proposed Special
Verdict Form Does Not Warrant a New Trial
Defendant also argues his proposed special verdict form on wire
fraud venue should have been submitted to the jury. (Mot. at 15.)
11 If the evidence of venue was not sufficient as to any count,
the remedy is to dismiss that count without prejudice, not a judgment
of acquittal. See United States v. Ruelas-Arreguin, 219 F.3d 1056,
1060 n.1 (9th Cir. 2000).
Case 2:20-cr-00579-SVW Document 790 Filed 07/22/21 Page 22 of 32 Page ID
#:13371
16
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
However, defendant’s proposed question materially misstated the law
and was appropriately rejected by the Court.
Specifically, defendant’s proposed venue question stated, “As to
each [wire fraud] Count, do you find proof by a preponderance of the
evidence that the wire was sent to or from the Central District of
California?” (ECF 547.) As explained above, this is an incorrect
statement of law. The question omitted both the pass-through theory
and the orchestration theory, both of which are recognized in Pace.
314 F.3d at 349-50. “Jury verdict forms are generally considered a
type of jury instruction,” United States v. Lopez, -- F.4th --, 2021
WL 2795426, at *18 (9th Cir. July 6, 2021), and defendant was “not
entitled to an instruction that misstates the law,” United States v.
George, 420 F.3d 991, 1000 (9th Cir. 2005).
Any error in not providing a special verdict form or instruction
on wire fraud venue was also harmless. The evidence established that
venue was properly sited in this District, as explained above, and
nothing required venue elsewhere. Indeed, “[t]he Framers designed a
system that requires trial in the vicinity of the crime, to secure
the party accused from being dragged to a trial in some distant
state, away from his friends, witnesses, and neighborhood.” United
States v. Lozoya, 982 F.3d 648, 651 (9th Cir. 2020) (en banc).
Defendants all reside in and orchestrated their crimes from this
District; venue here was appropriate.
E.
Witness Anthony Farrer Did Not Perjure Himself
Anthony Farrer, a luxury watch retailer, testified that
defendant purchased luxury watches from him and paid for them using
wires from bank accounts associated with several names the government
separately established were also used by defendant in furtherance of
Case 2:20-cr-00579-SVW Document 790 Filed 07/22/21 Page 23 of 32 Page ID
#:13372
17
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
the fraud. (6/17/21 P.M. Tr. at 21:10-44:19; GEX 37.a, 37.b, 37.c,
37.e.) Defendant argues that Mr. Farrer committed perjury because,
on cross-examination, he denied having sold a watch to an individual
known as “Mike from Instagram.” (Mot. at 15-16.) Defendant further
argues the government knowingly allowed Mr. Farrer to perjure
himself. Defendant’s argument is frivolous and should be rejected.
Mr. Farrer’s cross-examination was confusing and drew several
objections that the Court sustained. When asked whether he knew Mike
from Instagram’s real name, Mr. Farrer said that he did not.
(6/17/21 P.M. Tr. at 46:1-46:22.) Defense counsel then effectively
told Mr. Farrer that Mike from Instagram was Manuk Grigoryan (a name
with which Mr. Farrer was not familiar), and proceeded to ask Mr.
Farrer a series of confusing compound questions that assumed facts
not in evidence. (Id. at 46:1-46:22, 49:12-49:25.) It appears that
Mr. Farrer believed he was testifying that he had never sold watches
to Manuk Grigoryan, which, based on Mr. Farrer’s knowledge, was
accurate since he did not know any customers by that name. (Id. at
49:12-49:25.) Mr. Farrer’s testimony was also accurate in that
defendant appears to have paid for and received the watches for which
Mike from Instagram was purportedly the buyer, such that Mr. Farrer
never sold a watch to Mike from Instagram – rather, he sold those
watches to defendant. (GEX 37.b.)
There is no evidence that Mr. Farrer presented false testimony,
let alone deliberately committed perjury. Mr. Farrer had no reason
to lie about whether he sold a watch to Manuk Grigoryan (or Mike from
Instagram) and the record shows that Mr. Farrer was trying to answer
a series of objectionable questions to the best of his ability. It
is also clear from the record that the government did not “allow” Mr.
Case 2:20-cr-00579-SVW Document 790 Filed 07/22/21 Page 24 of 32 Page ID
#:13373
18
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
Farrer to commit perjury but merely objected to defense questions
that were improperly formed and confusing to the witness. In
addition, it has never been the government’s understanding that Manuk
Grigoryan is Mike from Instagram.
Even if the government unwittingly presented false evidence
(which it did not), a defendant is entitled to a new trial only “if
there is a reasonable probability that [without the evidence] the
result of the proceeding would have been different.” United States
v. Young, 17 F.3d 1201, 1204 (9th Cir. 1994). Here, defendant fails
to show that the result would have been different had the government
not presented Mr. Farrer’s purportedly false testimony. Defendant
incorrectly claims “the government used this false testimony to argue
that [defendant] was the only person using the phone registered to
the synthetic identity Iulia [sic] Zhadko.” (Mot. at 16.) Defendant
misstates the record. The question of whether Mike from Instagram or
Manuk Grigoryan purchased a watch from Mr. Farrer is separate from,
and not relevant to, the question of whether defendant was the person
using the Iuliia Zhadko phone. Based on the trial evidence,
including texts and other records produced by Mr. Farrer, defendant
was in fact the person using the phone registered to Iuliia Zhadko,
not Mike from Instagram or Manuk Grigoryan. (GEX 37.b, 37.c, 37.e.)12
12 Defendant separately claims that evidence purportedly showing
that Grigoryan also bought watches from Mr. Farrer would tend to show
Grigoryan was “running his own schemes and operations independent of
[defendant].” (ECF 683 at 16-17.) Such an inference is neither
reasonable nor supported by the record. There is no reason to
believe Grigoryan could only have made money to buy a watch from Mr.
Farrer by committing crimes about which defendant had no knowledge.
Case 2:20-cr-00579-SVW Document 790 Filed 07/22/21 Page 25 of 32 Page ID
#:13374
19
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
F.
The Court Correctly Denied Defendant’s Motions to Exclude
the Government’s Summary Witnesses
Defendant’s four-sentence challenge to the admission of the
government’s summary witnesses is conclusory and once again fails to
provide any basis for the Court to reconsider its careful analysis of
these fully-briefed and litigated issues during trial. (ECF 451,
504, 511, 520, 523.) Defendant claims Marylee Robinson’s testimony
“exceeded the scope of a percipient fact witness and was unduly
prejudicial” and Special Agent Timothy Massino’s testimony was
“argument elicited through a case agent,” without providing a single
example or citation to the record. (Mot. at 17.) Defendant’s
challenge to these witnesses’ testimony should be rejected.
G.
The Court’s Jury Instructions Regarding the Money
Laundering Conspiracy Count Were Proper
Defendant incorrectly contends he is entitled to a new trial on
the money laundering conspiracy charge (Count 26) because “the jury
instructions constituted an impermissible constructive amendment.”
(Mot. at 17.) Defendant’s claim is based solely on the fact that the
words “as charged in the indictment” were not included in the
concealment money laundering instruction. (Id. at 18 (citing ECF 609
at 36-37).) Defendant relies on a legally incorrect proposed jury
instruction, misstates the instruction that was actually given, and
misconstrues the law of constructive amendment.
First, the Court’s instruction followed the Ninth Circuit model
instructions for concealment money laundering virtually word-for-
word. (Compare ECF 609 at 36-37 with Ninth Circuit Model Instruction
No. 8.147.) Before trial, defendant sought to materially and
erroneously change the second element of the instruction to require
Case 2:20-cr-00579-SVW Document 790 Filed 07/22/21 Page 26 of 32 Page ID
#:13375
20
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
the government prove his knowledge that illegal proceeds came from a
specified unlawful activity charged in the indictment. Specifically,
he proposed substituting the phrase “the proceeds of unlawful
activity that is charged in the indictment” for the phrase “proceeds
of some form of unlawful activity.” (Compare ECF 372 at 17 (emphasis
added) with Ninth Circuit Model Instruction No. 8.147.) Defendant
again insists on this change here.
Defendant’s proposed change, however, is contrary to the statute
and the Ninth Circuit’s model instructions. Indeed, the statute
specifies that “the term ‘knowing that the property involved in a
financial transaction represents the proceeds of some form of
unlawful activity’ means that the person knew the property involved
in the transaction represented proceeds from some form, though not
necessarily which form, of activity that constitutes a felony
under State, Federal, or foreign law.” 18 U.S.C. § 1956(c)(1).
Defendant provides no legal authority for his proposed drastic
alteration of the mens rea requirement for concealment money
laundering, and his attempt to do so should be rejected.
Second, defendant selectively and misleadingly quotes the first
element of the Court’s given jury instruction, stating it “instructed
the jury that they need only find that the transaction involved
‘property that represented the proceeds of conspiracy to commit bank
fraud and wire fraud.’” (Mot. at 18.) In fact, the instruction
required the jury to find the transaction involved the criminal
proceeds of “conspiracy to commit bank fraud and wire fraud, in
violation of Section 1349 of Title 18 of the United States Code; wire
fraud in violation of Section 1343 of Title 18 of the United States
Code; or bank fraud, in violation of Section 1344(2) of Title 18 of
Case 2:20-cr-00579-SVW Document 790 Filed 07/22/21 Page 27 of 32 Page ID
#:13376
21
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
the United States Code.” (ECF 609 at 36.) This is no small
omission. The Court’s instruction specified the crimes charged in
Counts 1, 2-12, and 13-20, respectively, of the First Superseding
Indictment, which detailed the allegations regarding the manner and
means and the overt acts of the PPP/EIDL fraud. (ECF 154.) The jury
was given a redacted copy of that indictment for its deliberations.
(See 6/23/21 P.M. Tr. At 74:10-75:6.) All of the government’s
evidence during trial focused on the PPP/EIDL fraudulent conduct.
Defendant’s argument that the jury somehow would not have been able
to “specifically tie the specified unlawful activity to the PPP and
EIDL fraud charged in the indictment” without the words “as charged
in the indictment” is far-fetched and frivolous.
Finally, defendant’s attempt to connect the omission of the
phrase “as charged in the indictment” to a constructive amendment is
similarly baseless. Not including largely duplicative language not
supported by law in the jury instruction did not effect a
constructive amendment of the indictment. The jury was not presented
with a “complex of facts distinctly different from those set forth in
the charging instrument” nor was “the crime charged [in the
indictment] . . . substantially altered at trial, so that it was
impossible to know whether the grand jury would have indicted for the
crime actually proved.”13 United States v. Von Stoll, 726 F.2d 584,
586 (9th Cir. 1984). Defendant’s challenge should be rejected.
13 Nor was there any variance – fatal or otherwise - because the
evidence at trial did not “prove[] facts materially different from
those alleged in the indictment.” Von Stoll, 726 F.2d at 586.
Case 2:20-cr-00579-SVW Document 790 Filed 07/22/21 Page 28 of 32 Page ID
#:13377
22
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
H.
The Government Adduced Sufficient Untainted Evidence on All
Counts of Conviction
Defendant purports to renew his motion that the government has
failed to adduce at trial sufficient untainted evidence, testimony,
and argument. (Mot. at 19.) In compliance with the Court’s June 28,
2021 order (ECF 605), the government filed a separate post-trial
Kastigar submission (ECF 712) that addresses the arguments defendant
makes here, which the government incorporates by reference.
I.
The Government Proved Forfeitability of the $451,185 in
U.S. Currency and Six Watches by at Least a Preponderance
of the Evidence
Defendant also moves the Court to set aside the jury’s finding
that $451,185 in U.S. Currency (the “Forfeited Cash”) and six luxury
watches (the “Forfeited Watches”) were subject to forfeiture.
The government may prove forfeitability through circumstantial
evidence, and “there is no need to tie [forfeited property] to
proceeds of a particular identifiable illicit drug transaction.”
United States v. 1982 Yukon Delta Houseboat, 774 F.2d 1432, 1435 n.4
(9th Cir. 1985).14 As explained in the leading forfeiture treatise:
In most forfeiture cases, the Government must rely on
circumstantial evidence to establish by a preponderance of
the evidence that the property constitutes proceeds
traceable to the underlying offense. In determining
whether the Government has met its burden, the court or the
jury must look to the totality of the circumstances,
including such factors as the timing of the wrongdoer’s
acquisition of the property in relation to his commission
of the offense, his lack of other legitimate sources of
income, and the peculiar ways in which the property may
have been titled, packaged, concealed or disbursed.
Stefan Cassela, Asset Forfeiture Law in the United States, § 25-2.
14 This standard is not limited to narcotics transactions. See,
e.g., United States v. Melrose East Subdivision, 357 F.3d 493, 506-07
(5th Cir. 2004) (government may rely on circumstantial evidence of
“pervasive fraud” to prove forfeiture).
Case 2:20-cr-00579-SVW Document 790 Filed 07/22/21 Page 29 of 32 Page ID
#:13378
23
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
Here, the Forfeited Cash was found in the backyard of a property
(6/28/21 Tr. at 41:6-42:19) which itself was bought with fraud
proceeds (GEX 115 at 7), where other personal property bought with
fraud proceeds was discovered (6/28/21 Tr. at 42:20-43:18; GEX 401 at
8), including hundreds of thousands of dollars in gold and jewelry
(id.; GEX 401 at 8). Considering this evidence, a rational juror
could have found that the Forfeited Cash was criminal proceeds.
The core of defendant’s argument is that the Forfeited Cash
could not have been traceable to his criminal conduct because there
simply was not enough cash traced out of the PPP/EIDL loan fraud
scheme. (See Mot. at 20-21.) Defendant ignores his conviction of a
broader conspiracy: the government’s summary witness testified that
she traced only 27 fraudulent loans (6/28/21 Tr. at 14:19-21) and
identified at least $181,302 in tainted cash withdrawals (GEX 401 at
5). But defendant repeatedly elicited that the number of loans
involved in the fraud scheme was far greater. (See e.g., 6/22/21
A.M. Tr. at 78:12-79:6.) A rational juror could have inferred that
the cash traced from the 27 loans was only a portion of the available
cash from the broader conspiracy.15
Finally, the jury saw evidence that “Viktoria Kauichko” – an
alias used by the conspirators to apply for false loans (GEX 115 at
2, 6) – transferred hundreds of thousands of dollars to the merchant
from whom defendant purchased the Forfeited Watches. (GEX 401 at 1,
10.) Having seen that the Forfeited Watches were purchased with
15 Even assuming the jury should have credited defendant’s
argument that only $101,302 was traced out of the criminal scheme
(Mot. at 21), a rational juror could nonetheless find the remaining
Forfeited Cash forfeitable as concealment property involved in the
money laundering scheme. See Forfeiture Jury Instruction No. 15.
Case 2:20-cr-00579-SVW Document 790 Filed 07/22/21 Page 30 of 32 Page ID
#:13379
24
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
funds from one of the synthetic identities, a rational juror could
have concluded they were criminal proceeds.
J.
Defendant Was Not Denied an Impartial Jury
Defendant also contends he is entitled to a new trial because
“the Court-led voir dire was inadequate to guarantee Ayvazyan the
right to an impartial jury and resulted in prejudice,” claiming the
“standard used” was “tilted in favor of the government.” (Mot. at
23.) The two examples defendant selects underscore the frivolousness
of this argument and his misrepresentation of the record.
Defendant first claims a “retired probation officer responded
with an equivocal ‘I don’t think so’ when asked if their service as a
probation officer would prevent them from being fair and impartial.”
(Id.) In truth, the very next lines of the transcript reflect the
prospective juror clarified, “Can I be impartial? . . . Oh, yes, of
course.” (6/15/21 Tr. at 133:11-19.)16
Defendant’s second example turns on his factually unsupported
contention that “the jury foreperson listened intently and made eye
contact with prosecutors [during closing], only to turn away during
the entirety of defense counsel’s presentation.” (Mot. at 23.)
Defendant asserts the foreperson’s service in the military
(apparently ascertained by the defense post-trial) necessarily meant
she had a “pro-government slant” that should have been disclosed in
response to the basic question as to whether she could be “fair and
impartial to both sides.” (Id.) Defendant’s claims lack any support
16 Defendant also omits that this questioning related to
alternate jurors (none of whom were needed for deliberations) and the
defense used less than half of their peremptories, such that there
could be no prejudice. (See id. at 109:14-110:6, 118:24-119:11.)
Case 2:20-cr-00579-SVW Document 790 Filed 07/22/21 Page 31 of 32 Page ID
#:13380
25
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
in the record and are offensive in that they assume military veterans
cannot be impartial. Defendant was not denied an impartial jury.
K.
There Was No Cumulative Error Warranting a New Trial
As explained above, defendant’s claims all fail and, even if he
could establish one or more errors, “the fact that errors have been
committed during a trial does not mean that reversal is required.”
United States v. de Cruz, 82 F.3d 856, 868 (9th Cir. 1996). “[W]hile
a defendant is entitled to a fair trial, [he] is not entitled to a
perfect trial, for there are no perfect trials.” United States v.
Payne, 944 F.2d 1458, 1477 (9th Cir. 1991) (quotations omitted).
Where as here, any potential error is marginal at best, “the
cumulative effect of such error cannot be deemed so prejudicial that
reversal is warranted.” de Cruz, 82 F.3d at 868; see also United
States v. Karterman, 60 F.3d 576, 580 (9th Cir. 1995).
Defendant has not demonstrated any individual errors, much less
cumulative error, so prejudicial to warrant or require a new trial.17
IV.
CONCLUSION
For the foregoing reasons, the government respectfully requests
that the Court deny defendant Richard Ayvazyan’s motion for a new
trial and/or judgment of acquittal.
17 Defendant cites only one case, Killian v. Poole, 282 F.3d 1204
(9th Cir. 2002), where the Ninth Circuit found cumulative error
warranting a new trial. Defendant describes that case as involving a
“government witness [that] perjured himself.” (ECF 683 at 24.)
Defendant misunderstands Killian’s import. Besides the fact that Mr.
Farrer did not perjure himself, Killian involved a cooperating
witness whose numerous lies went “to the very heart of whether and to
what extent [defendant] was involved” in the charged murder and whose
testimony “was virtually the whole case for the government,” the
state’s failure to disclose significant impeachment evidence
regarding the cooperator including its deal to recommend him
leniency, and the state’s references “no less than eight separate
times” to the defendant’s silence following her arrest. Killian, 282
F.3d 1208, 1209, 1211. In short, this case is not Killian.
Case 2:20-cr-00579-SVW Document 790 Filed 07/22/21 Page 32 of 32 Page ID
#:13381File and source
- File
- gov.uscourts.cacd.802533.790.0.pdf
- Size
- 313,562 bytes
- SHA-256
- 2fe37a67152cae00deed2002bccde0faf91c4ffee8d4573636a5b42f4b2f6173
- Original
- PACER (login required)