Court filing
Opposition to First Notice of Motion and Motion for New Trial — USA v. Ayvazyan et al. (Dkt. 793, 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. 793 · 2021-07-22 · 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
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 ARTUR AYVAZYAN’S MOTIONS
PURSUANT TO FEDERAL RULES OF
CRIMINAL PROCEDURE 29 AND 33 (ECF
686, 687)
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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 Artur Ayvazyan’s Rule 29 and 33 Motions (ECF 686 and 687)1.
This opposition is based upon the attached memorandum of points and
authorities, the testimony and exhibits admitted during 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/
CATHERINE AHN
SCOTT PAETTY
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 a motion joining defendant
Richard Ayvazyan’s Rule 29 and 33 Motion. (ECF 683 and 688.) The
government is filing a separate opposition to defendant Richard
Ayvazyan’s motion.
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TABLE OF CONTENTS
Contents
TABLE OF CONTENTS...................................................i
TABLE OF AUTHORITIES..............................................iii
MEMORANDUM OF POINTS AND AUTHORITIES................................1
I.
INTRODUCTION...................................................1
II.
RELEVANT FACTUAL BACKGROUND....................................2
A.
Co-Conspirator Text Messages Detail Defendant’s
Extensive Role in the Charged Fraud and Money
Laundering Conspiracies and Substantive Fraud Counts......2
B.
Defendant Possessed and Used Identities Belonging to
Foreign Exchange Students, including Count 24’s
Identity Theft Victim, Anna Dzukaeva......................4
C.
Defendant’s Phone Contained Overwhelming Evidence of
His Role in the Fraud.....................................8
D.
Defendant Artur Ayvazyan Used Accounts in His Name to
Transfer and Launder PPP and EIDL Funds and Benefitted
from the Fraudulent Use of Accounts in the Names of
Victims..................................................10
E.
Defendant’s Testimony and Admissions.....................11
III. RELEVANT LEGAL STANDARDS......................................13
A.
Federal Rule of Criminal Procedure 29....................13
B.
Federal Rule of Criminal Procedure 33....................15
IV.
ARGUMENT......................................................16
A.
Conspiracy to Commit Bank Fraud and Wire Fraud (Count
1); Wire Fraud (Counts 2-12); Bank Fraud (Counts 13-
20); and Conspiracy to Commit Money Laundering (Count
24)......................................................16
1.
Elements of the Charged Offenses....................16
2.
The Evidence Against Defendant Was Overwhelming.....19
B.
Aggravated Identity Theft (Count 24).....................21
1.
Elements of Aggravated Identity Theft...............21
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2.
Proof of Defendant’s Commission of the Aggravated
Identity Theft of Anna Dzukaeva’s Name Charged in
Count 24............................................22
V.
CONCLUSION....................................................22
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TABLE OF AUTHORITIES
Cases
Jackson v. Virginia, 443 U.S. 307 (1979)....................... 14, 21
United States v. Alarcon-Simi, 300 F.3d 1172 (9th Cir. 2002)....... 15
United States v. Archer, 977 F.3d 181 (2d Cir. 2020)........... 15, 16
United States v. Del Toro-Barboza, 673 F.3d 1136 (9th Cir. 2012)... 14
United States v. Escalante, 637 F.2d 1197 (9th Cir. 1980).......... 17
United States v. Gagarin, 950 F.3d 596 (9th Cir. 2020)............. 21
United States v. Gudino, 432 F.2d 433 (9th Cir. 1970).............. 15
United States v. Holden, 908 F.3d 395 (9th Cir. 2018).............. 18
United States v. Kaplan, 836 F.3d 1199 (9th Cir. 2016)............. 17
United States v. LaVictor, 848 F.3d 428 (6th Cir. 2017)............ 16
United States v. Maciel-Alcala, 612 F.3d 1092 (9th Cir. 2010)...... 21
United States v. Manion, 339 F.3d 1153 (9th Cir. 2003)............. 18
United States v. Martinez, 763 F.2d 1297 (11th Cir. 1985).......... 16
United States v. Montgomery, 384 F.3d 1050 (9th Cir. 2004)......... 17
United States v. Osuna-Alvarez, 788 F.3d 1183 (9th Cir. 2015)...... 21
United States v. Pimentel, 654 F.2d 538 (9th Cir. 1981)........ 15, 21
United States v. Ramos, 558 F.2d 545 (9th Cir. 1977)........... 14, 21
Statutes
18 U.S.C. § 1028A(a)(1)............................................ 21
18 U.S.C. § 1343............................................... 17, 21
18 U.S.C. § 1344(2)................................................ 18
18 U.S.C. § 1349................................................... 16
18 U.S.C. § 1956(h)................................................ 19
18 U.S.C. § 2.................................................. 18, 22
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Other Authorities
Manual of Ninth Circuit Model Jury Instructions No. 8.127.......... 18
Manual of Ninth Circuit Model Jury Instructions No. 8.83........... 21
Ninth Circuit Manual of Model Jury Instructions No. 8.124.......... 18
Ninth Circuit Manual of Modified Jury Instructions No. 8.20.... 17, 19
Rules
Federal Rule of Criminal Procedure 29.......................... passim
Federal Rule of Criminal Procedure 33................... 1, 15, 16, 23
United States v. Reed, 875 F.2d 107 (7th Cir. 1989)................ 16
United States v. Wheeler, 753 F.3d 200 (D.C. Cir. 2014)............ 16
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MEMORANDUM OF POINTS AND AUTHORITIES
I.
INTRODUCTION
At trial, the government presented overwhelming evidence seized
from defendant Artur Ayvazyan’s (“defendant’s”) and his co-
conspirator and wife Tamara Dadyan’s phones, and residence, which
directly implicated defendant, Tamara Dadyan, defendant’s older
brother Richard Ayvazyan, and others in a conspiracy to submit
fraudulent Paycheck Protection Program (“PPP”) and Economic Injury
Disaster Loans (“EIDL”) and launder the proceeds. Although defendant
took the stand to claim ignorance and blame his wife, his testimony
was internally inconsistent and contradicted by texts sent by his own
brother. Not surprisingly, the jury did not believe defendant and,
based on the overwhelming evidence presented at the seven-day trial,
found defendant guilty on all counts.1
This Court previously denied defendant’s motion for acquittal
(6/22/21 P.M. Tr. 65:4-72:24 and 77:20-2) and should do so again.
Defendant’s motions are solely based on his insistence that the jury
should have credited his testimony at trial. But it is the exclusive
province of the jury to determine the credibility of a witness and,
when considering a motion for judgment of acquittal, the reviewing
court must respect the jury’s ultimate determination. Moreover, in
light of the overwhelming evidence of defendant’s guilt, the jury’s
disbelief does not entitle him to a new trial. The Court should
sustain the jury’s well-supported verdict and deny defendant’s motion
for a judgment of acquittal under Federal Rule of Criminal Procedure
29 and/or a new trial under Federal Rule of Criminal Procedure 33.
1 References to counts refer to counts charged against defendant
in the First Superseding Indictment. (ECF 154.)
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II.
RELEVANT FACTUAL BACKGROUND
A.
Co-Conspirator Text Messages Detail Defendant’s Extensive
Role in the Charged Fraud and Money Laundering Conspiracies
and Substantive Fraud Counts
At trial, the government presented evidence from phones
belonging to defendant and his wife, co-defendant Tamara Dadyan,
seized from their residence (the “Weddington residence”) on November
5, 2020. (6/17/21 P.M. Tr. 59:18-82:22 (testimony of Federal Bureau
of Investigation (“FBI”) Special Agent Madison MacDonald).) Tamara
Dadyan’s phone included text messages sent between herself (“tammy”)
and an individual listed as “Rich New” and referenced by “tammy” as
“big brother.”2 (Government Trial Exhibit (“GEX”) 10 at 1 and 16
(text message 3369).) The “tammy” and “Rich New” text messages
include references to “Art,” both in the context of personal and
familial expressions of care (GEX 10 at 16 (text messages 3369-70))
and in discussions regarding Art’s participation in the conspiracy
(see e.g., GEX 10 at 16 (text message 3371 (“Send em the account
number again so I have Art go deposit the 157k Vahe3”)) and 17 (text
message 3479 (“Tom comming over now I told art show him the decline
letter from the eidl and it’s simple it’s 35 percent for ppp”)).
These text messages explicitly discuss “Art’s” receipt of funds
that correspond to PPP loans and wire transfers benefitting
defendant. For example, “tammy” informs “Rich New” that she’s
“expecting a wire for Art for $73,500” (see Excerpt 1, below (text
2 The phone number for “Rich New” was subscribed to “Iuliia
Zhadko,” an identity co-defendant Richard Ayvazyan, along with his
co-conspirators, was charged and convicted of using to open accounts
and submit PPP and EIDL applications. (GEX 10 at 1, GEX 61 at 1, GEX
19c at 4; see also count 1 and GEX 116).)
3 This is a reference to the $157,500 PPP loan signed by co-
defendant Vahe Dadyan and submitted on behalf of Voyage Limo. (See
6/21/21 P.M. Tr. 66:3-71:3 (testimony of Special Agent Massino).)
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message 3504)), and provides an image showing a wire transfer from
New Acre Farm Produce and “Thanh P. Tran” to “Runya (sic) Tax
Service” for the purported purpose of “Payroll New Acre Farm
Produce.” (6/21/21 P.M. Tr. 71:4-75:2 and GEX 10-24.) This receipt
corresponded to bank account records for New Acre Farms showing an
incoming PPP wire transfer for $210,000. (GEX 110 at 21.) An image
of the same wire receipt was also found on defendant’s phone (GEX 24e
at 4), along with images of the front and back of Tran’s California
Driver’s License (“CADL”) (GEX 24c at 27-28). Furthermore, 35% of
the $210,000 PPP loan is exactly $73,500 – corresponding to the “35
percent for ppp” that “Art” was going to discuss with another person
(see Excerpt 1, below (message 3479)).
Excerpt 1. Selected Text Messages from GEX 10 at 18 (see also
Testimony of Special Agent Massino (6/21/21 P.M. Tr. 71:4-75:2)).
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In his later testimony, defendant admitted on cross-examination,
among other things, that he controlled the accounts associated with
his trucking business, Allstate Towing and Transport; that Thanh Tran
was “a good friend of mine”; and to the check from Runyan Tax Service
to Allstate Towing and Transport in the amount of $73,500. (6/23/21
A.M. Tr. 120:8-124:13 (referencing GEX 1.h and GEX 1.j (Allstate
Towing and Transport accounts) and GEX 1.p at 59).) Furthermore,
photographs of PPP and EIDL submission confirmations and approvals,
including an approval for a $210,000 PPP loan (GEX 24d at 1-3),
confirmation of an application submitted on behalf of his own
business, Allstate Towing and Transportation (GEX 24d at 8), and
confirmation of a $210,000 PPP loan submitted on behalf of New Acre
Farm Produce (GEX 24d at 12), were found on defendant’s phone.
B.
Defendant Possessed and Used Identities Belonging to
Foreign Exchange Students, including Count 24’s Identity
Theft Victim, Anna Dzukaeva
The government established, through official records and witness
testimony, that certain stolen names and identities used in
furtherance of the fraud and money laundering offenses belonged to
foreign students who had traveled to the United States on student
visas and had left the United States years before their names were
used in PPP and EIDL applications charged in this case (see e.g., GEX
116 (charts summarizing, among other things, PPP and EIDL
applications submitted in the names of Iuliia Zhadko, Viktoria
Kauichko, and Anton Kudiumov).) Customs and Border Patrol (“CBP”)
Officer Nicholas Felando testified as to the content of GEX 44, which
established that individuals such as Anna Dzukaeva (the aggravated
identity theft victim for count 24), Liudmyla Kopytova, Iuliia
Zhadko, Anton Kudiumov, Medet Murat, Viktoria Kauichko, and others
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had entered the United States on J-1 exchange student visas and
departed years before the onset of the COVID-19 pandemic in 2020.
(6/16/21 P.M. Tr. 25:10-39:22 (testimony of CBP Office Felando); see
also id. at 39:24-41:3 (stipulation to the accuracy of GEX 44 by all
trial defendants) and GEX 44.)
The government found copies of numerous visas, including J-1
visas (GEX 57.c at 1, 3, and 5-8), matching social security work
authorizations, and passports in the names of individuals other than
defendants, including the name of Anastasiya Rysik (GEX 57.c at 8-
10), at the Weddington residence. (6/17/21 P.M. Tr. 59:18-82:22
(testimony of Federal Bureau of Investigation (“FBI”) Special Agent
Madison MacDonald regarding the search of the Weddington residence).)
The government also admitted evidence, through Special Agent
MacDonald, of additional personal identification and financial
documents found at the Weddington residence in names other than those
of defendant, co-defendant Tamara Dadyan, or any other defendant.
These included the front and back of purported California Driver’s
Licenses (“CADLs”) and social security cards in names matching the
stolen J-1 foreign exchange student identities, including count 24’s
identity theft victim Anna Dzukaeva (GEX 57.a at 1-2), and three
copies of a CADL bearing the name Liudmyla Kopytova with two
different photos, as well as a purported social security card bearing
her name (id. at 1-2, 7-10). The trial evidence also included
identification documents bearing handwritten notes regarding personal
identifiers, addresses, emails, and passwords (GEX 57.b at 3 and 5-7)
as well as photographs of faces used in purported CADLs (id. at 8),
all seized from the Weddington residence.
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Consistent with the handwritten notes of email addresses and
passwords, the government found at the Weddington residence printouts
and notes of email addresses, usernames associated with websites or
financial institutions, and passwords, for identities that matched
identification documents also found at the Weddington residence (GEX
57.d). The government also found at the Weddington residence
handwritten and typed California Secretary of State forms for
businesses such as “Six Star Farms” and EIDL and PPP loan
applications, including for Six Star Farms submitted in the name of
count 24’s identity theft victim Anna Dzukaeva (GEX 57.e at 21-39),
and others, including Liudmyla Kopytova and the purported business LK
Designs (GEX 57.e at 22-45).
In addition, the government found handwritten notes of financial
account information, including for Anna Dzukaeva and Liudmyla
Kopytova (GEX 57.f at 1, 3), handwritten notes regarding personal
names and information to use in association with PPP lenders
referencing the names of other co-conspirators and individual and
business identities used in the PPP and EIDL scheme (GEX 57.h at 1
(bearing notes such as “Send Richard Bluevine paper that guy send
when DBA sole prop they have to send money to personal” and “Anna
Duzkaeva – Bluevine / Liberty / Fundbox”)), and voluminous copies of
checks bearing the names of defendants and others, including Anna
Dzukaeva (GEX 57.g at 3 and 8), Anastasiya Rysik (id. at 20), and
Medet Murat (id. at 22).
A significant portion of the information underlying the vast
amounts of fraudulent documentary and hard evidence described above
was also found on defendant’s cellphone. For example, foreign
exchange student names and identities found in handwritten notes,
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printed CADLs, social security cards, J-1 visas, and other documents
at the Weddington residence further matched images of identification,
checks, credit and debit cards and other images found on defendant’s
phone. Specifically, images found on defendant’s phone included,
among others, the image of a social security card bearing Anna
Dzukaeva’s name (GEX 24b 1-2), two different CADLs each displaying
Dzukaeva’s name but a different photograph (id. 2-4), and images of
checks bearing the name of Anna Dzukaeva (GEX 24c at 5). The Anna
Dzukaeva CADLs found on defendant’s phone included a version of the
Anna Dzukaeva CADL found at the Weddington residence (GEX 57.a at 1-
2), which was also used in a PPP loan submitted in the name of Anna
Dzukaeva on behalf of Six Star Farms (GEX 2-q at 29). Defendant
further possessed, on his phone, the front and back of a Visa card
bearing the name of foreign exchange student Liudmyla Kopytova (GEX
24c at 9-10), as well as images of various PPP and EIDL submission
confirmations, including confirmation of an EIDL application for
“LKdesign15@yahoo.com” (GEX 24d at 10).
The government also presented evidence related to the false and
fraudulent nature of the identification documents and PPP and EIDL
applications submitted in the names of the stolen foreign exchange
student identities. This included witness testimony from the
California Department of Motor Vehicles (“DMV”) regarding their lack
of records supporting the fake CADLs found at the Weddington
residence and on defendant’s phone that were submitted with PPP and
EIDL applications, including the CADL of identity theft victim Anna
Dzukaeva. (6/16/21 A.M. Tr. 74:14-21 (testimony of DMV employee
Breanna Fitzgerald).) Trial evidence further included witness
testimony identifying loan files associated with purportedly
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different individuals and businesses that nonetheless used the exact
same information in supporting payroll records and tax forms
(06/21/21 A.M. Tr. 78:23-87:7 (testimony of Special Agent Massino
discussing GEX 116 at 5-7)), including applications filed in the
names of foreign exchange students Viktoria Kauichko and Medet Murat
(GEX 116 at 5), Viktoria Kauichko, Anton Kudiumov, and Liudmyla
Kopytova (GEX at 7).
C.
Defendant’s Phone Contained Overwhelming Evidence of His
Role in the Fraud
The government seized defendant’s phone on November 5, 2020,
during a search of the Weddington residence. As discussed above,
defendant’s phone contained evidence relating to the foreign exchange
student identities. Defendant’s phone also contained evidence
relating to numerous other identities used on images of
identification documents and financial account records and cards that
match evidence found at the Weddington residence and in the
possession of defendant’s co-conspirators. This includes, but is not
limited to, the identities listed below.
• “Corinne Bartoumian,” whose purported CADL was found on
defendant’s phone (GEX 24b at 5 and 6), and whose name was
used on images of Internal Revenue Service (“IRS”) Form
940s found on co-defendant Tamara Dadyan’s phone, and
included the name of tax preparer and testifying identity
theft victim Alexander Fard (GEX 13e at 3).
• “Osbaldo Velasquez,” for whom two different versions of a
purported CADL bearing different photos were found on
defendant’s phone (GEX 24b at 8, 9-10).
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• “Mykhail Diuzhenko,” for whom defendant possessed an image
of a CADL and social security card bearing the image of
bearded, balding man (GEX 24b at 11), but also possessed
three versions of a different CADL bearing a different
photograph but the same name, CADL number, and three
different addresses (id. at 12-14). Defendant’s phone also
contained an image of an SBA website confirming the
submission of an EIDL loan application through the email
address “Myk_Diuzhenko@aol.com” (GEX 24d at 11). The same
social security card and CADL for Diuzheko found in
defendant’s phone was also found in text messages sent
between “tammy” and “Rich New” (GEX 10-31). In addition,
Diuzheko’s name and purported business, MD Acquisitions,
were used in EIDL loan applications (GEX 3.l) and for a
Wells Fargo account whose records showed checks written to,
among others, Anastayia Rysik (GEX 5.h at 8). Furthermore,
the EIDL loan file for MD Acquisitions contained the exact
same payroll report as the loan files submitted in the
names of foreign exchange students Liudmyla Kopytova,
Viktoria Kauichko, and Anton Kudiumov. (GEX 116 at 7.)
• “Roza Avakian,” whose purported social security card and
CADL were found on defendant’s phone (GEX 24b at 15-17),
and whose loan application contained the same IRS Form 940
as the PPP and EIDL applications submitted in defendant’s
own name and business (GEX 116 at 6).
• “Nerses Nakshchyan” and “Tony Gleb,” for whom defendant
possessed images of purported CADLs bearing the same
addresses on his phone, along with handwritten notes with
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personal identifiers for Gleb and Nakshchyan found on the
purported CADLs and instructions that included, for
Nakshchyan, “Please use a [sic] old Armenian guy and Please
match his Description to him thank you”. (GEX 24a at 16-
19). A purported Tony Gleb CADL and social security card
were found at the Weddington residence (GEX 57.b at 1), as
well as a photocopy of a CADL for Nerses Nakshchyan bearing
a different photograph with handwritten notes containing
additional personal identifiers (GEX 57.b at 6), and a
checkbook bearing the name Nerses Nakshchyan (GEX 57.g at
28).
The images seized from defendant’s phone also provided the jury
evidence of his role in the conspiracy, which included creating false
identification cards and documents in support of the charged
offenses. Specifically, in addition to the handwritten instructions
on changing CADLs and the matching CADLs, images of a logo bearing
the name “ID Now” and photos of various different types of
identification documents showing editing marks were further found in
defendant’s phone. (GEX 24a at 1-13.)
D.
Defendant Artur Ayvazyan Used Accounts in His Name to
Transfer and Launder PPP and EIDL Funds and Benefitted from
the Fraudulent Use of Accounts in the Names of Victims
The government also presented witness testimony from summary
witness Marylee Robinson to further support the fraud and money
laundering conspiracies charged in counts 1 and 26. (6/16/21 P.M.
Tr. 116:7-144:16 (direct examination of Ms. Robinson) and 6/17/21
P.M. Tr. 12:12-43:17 (cross examination by co-defendant Richard
Ayvazyan’s counsel).) Ms. Robinson’s testimony and the summary chart
exhibit she prepared (GEX 115) showed that PPP and EIDL loan
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applications were submitted in the names of the co-conspirators,
including defendant and his company Allstate Towing and Transport, as
well as other names associated with the charged offenses, including
identity theft victim Anna Dzukaeva. This testimony and evidence
also showed the proceeds obtained through these fraudulent loans were
transferred through accounts in those and other names for the benefit
of co-defendants and co-conspirators Richard Ayvazyan and Marietta
Terabelian. (6/16/P.M. Tr. 128:5-16 (testimony of Ms. Robinson
discussing GEX 115 page 7) and 141:24-144:19 (testimony of Ms.
Robinson discussing GEX 115 page 9).) Ms. Robinson further testified
that – despite receiving PPP loan funds – the Anna Dzukaeva Capital
One account analyzed in GEX 115 did not show activity supporting
purported business expenses like payroll. (6/16/21 P.M. Tr. 141:24-
144:19 (discussing GEX 115 at 11 and Dzukaeva Capital One account
activity).) The PPP loan funded into the Anna Dzukaeva Capital
account was the basis for count 12’s bank fraud offense, which was
the predicate to the aggravated identity theft charged in count 24.
E.
Defendant’s Testimony and Admissions
At trial, defendant testified that: (1) he lived at the
Weddington residence with Tamara Dadyan (6/23/21 A.M. Tr. 78:12-20);
(2) the handwriting on various notes found in the Weddington
residence belonged to Tamara Dadyan, and only she used the office
where numerous records and CADLs were found (id. at 87:12-88:2 and
89:22-101:23; see also 6/17/21 P.M. Tr. 65:20-80:15 and 94:1-11
(testimony of Special Agent Madison MacDonald)); (3) he owned a
trucking company called Allstate Towing and Transport, which employed
“a couple of drivers” and had significantly reduced work in 2020 due
to COVID-19 (6/23/21 A.M. Tr. 83:3-12, 84:13, and 86:13-23); (4) he
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had attempted to divorce Tamara Dadyan and moved out but ultimately
returned because “some guys” related to his wife’s business
activities put his family in jeopardy of being harmed by dangerous
people (id. at 106:10-107:16); and (5) he kept his business and
finances for his business, Allstate Towing and Transport, including
yearly tax filings, independent of and separate from Tamara Dadyan
because he “didn’t want to get involved in filing with her” (id. at
101:24-103:19).
Despite this alleged lack of trust, defendant testified that he:
(1) gave Tamara Dadyan his tax forms and permitted her to fill out
and submit the PPP and EIDL applications for his business without
knowing the amount of the loans (id. at 108:3-110:12); (2) gave
Tamara Dadyan full and consistent access to his phone (id. at 102:14-
103:7) even after finding forms of identification (“IDs”) on his
phone and erasing them (id at 104:22-105:21); (3) claimed that it was
“likely my wife” who put the false identification cards found by the
government on his phone, and that he first learned about them in this
case even though then testified that he had previously found IDs on
his phone, confronted Tamara Dadyan about them, and erased them (id
at 104:22-105:21); and (4) agreed to “help her out” by making
deposits (id. at 88:25-89:4). Furthermore, despite making numerous
statements regarding his lack of trust in his wife, Tamara Dadyan,
defendant testified that his brother and co-defendant Richard
Ayvazyan was a “great guy” and that asserted that he transferred PPP
money to his brother, co-defendant Richard Ayvazyan, simply to repay
a supposed business loan. (Id. at 89:5-18 and 111:18-113:4.) The
jury had previously seen the text messages exchanged between “tammy”
and “Rich New” describing the fraud in minute detail; however, unlike
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Tamara Dadyan, defendant’s brother was present at trial as a
defendant challenging his alleged role in the charged offenses.
On cross-examination, defendant made a number of admissions
related to his use of PPP funds and knowledge of individuals and
accounts associated with fraudulent account transfers. First,
defendant admitted that, despite claiming that Tamara Dadyan was not
involved in his business and defendant deliberately kept his business
and taxes separate from her, he agreed to let her “take care of” the
loan applications for that very same business and gave her full
access to his phone (id. at 118:19-120:7). Second, despite
previously testifying that he had been behind on payments for his
business (id. at 11:7-11), defendant admitted that one of the first
recorded expenses on his account statement after receiving government
funds was for an approximately $24,067.15 cashier’s check for a
Harley Davidson motorcycle (id. at 122:3-123:1). Third, defendant
admitted that he had received government funds for Allstate Towing
and Transport (id. at 121:2-8), that he “pay[s] close attention to
[his business] accounts” (id. at 121:9-11), and acknowledged a check
made out to his business for $73,500 from the Runyan Tax Services
account (id. at 123:23-124:13), which constituted proceeds of a PPP
loan-funded wire transfer from the account of his “good friend” and
previous business partner, Thanh Tranh (id. at 123:4-19).
III. RELEVANT LEGAL STANDARDS
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:
But this inquiry does not require a court to ask itself
whether it believes that the evidence at the trial
established guilt beyond a reasonable doubt. Instead, the
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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) (emphasis in
original) (internal quotation and citations omitted).
In addition to viewing the evidence in the light most favorable
to the government, a reviewing court must assume that the jury
resolved any conflicts of evidence in favor of the prosecution,
determined witness credibility in favor of the verdict, and made any
reasonable inferences from the evidence in a way that supports the
conviction. The Ninth Circuit has explained the analysis as follows:
First, the evidence must be viewed in the light most
favorable to the government; and second, the reviewing
court 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. In brief, the
reviewing court must determine: whether the evidence,
considered most favorably to the government, was such as to
permit a rational conclusion by the jury that the accused
was guilty beyond a reasonable doubt.
United States v. Ramos, 558 F.2d 545, 546-47 (9th Cir. 1977)
(citation omitted) (reversing trial court’s grant of a motion for
judgment of acquittal).
Thus, “when ‘faced with a record of historical facts that
supports conflicting inferences,’ a reviewing court ‘must presume -
even if it does not affirmatively appear in the record - that the
trier of fact resolved any such conflicts in favor of the
prosecution, and must defer to that resolution.’” United States v.
Del Toro-Barboza, 673 F.3d 1136, 1143 (9th Cir. 2012) (quoting
Jackson, 443 U.S. at 326). “It is not the district court’s function
to determine witness credibility when ruling on a Rule 29 motion.”
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United States v. Alarcon-Simi, 300 F.3d 1172, 1176 (9th Cir. 2002)
(affirming denial of Rule 29 motion where defendant’s theory was that
“the [g]overnment’s witnesses were not credible”). The testimony of
only a single witness can be sufficient in supporting a verdict.
See, e.g., United States v. Gudino, 432 F.2d 433, 434 (9th Cir. 1970)
(“The testimony of the one witness, if believed, was sufficient to
support the conviction, and the resolution of any question as to his
credibility was properly entrusted to the jury.”).
B.
Federal Rule of Criminal Procedure 33
Federal Rule of Criminal Procedure 33 permits defendants to move
for a new trial “if the interest of justice so requires.” Fed. R.
Crim. P. 33(a). While Rule 33 motions may be cast as based on a
review of the weight of the evidence, the Ninth Circuit counsels that
“[a] motion for a new trial . . . should be granted only in
exceptional cases in which the evidence preponderates heavily against
the verdict.” United States v. Pimentel, 654 F.2d 538, 545 (9th Cir.
1981) (citation omitted).
Although the Rule 33 analysis does not require the same level of
deference as Rule 29, the “exceptional” nature of the Rule 33 remedy
requires a court take great care in assessing the evidence. A
reviewing court “may not reweigh the evidence and set aside the
verdict simply because it feels some other result would be more
reasonable.” United States v. Archer, 977 F.3d 181, 188 (2d Cir.
2020) (reversing district court’s granting of Rule 33 motion)
(internal quotation and citation omitted). Indeed, “a district court
may not grant a Rule 33 motion based on the weight of the evidence
alone unless the evidence preponderates heavily against the verdict
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to such an extent that it would be ‘manifest injustice’ to let the
verdict stand.” Id.
Courts consistently follow these principles in granting Rule 33
motions “sparingly and with caution, doing so only in those really
exceptional cases.” United States v. Martinez, 763 F.2d 1297, 1313-
14 (11th Cir. 1985). See also, e.g., United States v. LaVictor, 848
F.3d 428, 455–56 (6th Cir. 2017) (Rule 33 motions “granted only in
the extraordinary circumstances where the evidence preponderates
heavily against the verdict”) (internal quotation marks omitted);
United States v. Wheeler, 753 F.3d 200, 208 (D.C. Cir. 2014)
(“[G]ranting a new trial motion is warranted only in those limited
circumstances where ‘a serious miscarriage of justice may have
occurred.’”) (citation omitted); United States v. Reed, 875 F.2d 107,
114 (7th Cir. 1989) (reversing grant of Rule 33 motion where case was
“not one of those ‘exceptional cases’ where the evidence
preponderates so heavily against the defendant that it would be a
manifest injustice to let the guilty verdict stand”).
IV.
ARGUMENT
The evidence presented at trial against defendant is more than
sufficient to withstand both defendant’s motion for judgment of
acquittal and his motion for a new trial on all counts of conviction.
A.
Conspiracy to Commit Bank Fraud and Wire Fraud (Count 1);
Wire Fraud (Counts 2-12); Bank Fraud (Counts 13-20); and
Conspiracy to Commit Money Laundering (Count 24)
1.
Elements of the Charged Offenses
a.
Elements of Conspiracy to Commit Bank/Wire Fraud
With respect to count 1, alleging conspiracy to commit bank
fraud and wire fraud in violation of 18 U.S.C. § 1349, the elements
are as follows: (1) beginning no later than in or around March 2020,
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and continuing until at least in or around August 2020, there was an
agreement between two or more persons to commit bank fraud and/or
wire fraud; and (2) defendant became a member of the conspiracy
knowing of at least one of its objects and intending to help
accomplish it. Ninth Circuit Manual of Modified Jury Instructions
(“9th Cir. MJI”) No. 8.20 (modified for 18 U.S.C. § 1349). “An
agreement to commit a crime can be explicit or tacit, and can be
proved by direct or circumstantial evidence, including inferences
from circumstantial evidence.” United States v. Kaplan, 836 F.3d
1199, 1212 (9th Cir. 2016) (internal quotation and citation omitted).
A person may be a member of a conspiracy even though the person does
not know all of the purposes of or participants in the
conspiracy. United States v. Escalante, 637 F.2d 1197, 1200 (9th
Cir. 1980). Moreover, “[a]fter a conspiracy is established, proof of
the defendant’s connection to the conspiracy must be shown beyond a
reasonable doubt, but the connection can be slight.” United States
v. Montgomery, 384 F.3d 1050, 1062 (9th Cir. 2004).
b.
Elements of Wire Fraud
With respect to Counts 2-12, alleging wire fraud in violation of
18 U.S.C. § 1343, the elements are as follows: (1) defendant
knowingly participated in or devised a scheme or plan to defraud, or
a scheme or plan for obtaining money or property by means of false or
fraudulent pretenses, representations, or promises; deceitful
statements of half-truths may constitute false or fraudulent
representations; (2) the statements made or facts omitted as part of
the scheme were material; that is, they had a natural tendency to
influence, or were capable of influencing, a person to part with
money or property; (3) defendant acted with the intent to defraud,
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that is, the intent to deceive and cheat; and (4) defendant used, or
caused to be used, an interstate wire communication to carry out or
attempt to carry out an essential part of the scheme. 9th Cir. MJI
No. 8.124.
The Ninth Circuit has made clear that based on its “longstanding
precedent, ‘anyone who knowingly and intentionally participates
in the execution of [a] fraudulent scheme comes within the
prohibition of the mail and wire fraud statutes regardless of whether
the defendant devised the scheme.’” United States v. Holden, 908
F.3d 395, 400 (9th Cir. 2018) (emphasis in original) (quoting United
States v. Manion, 339 F.3d 1153, 1156 (9th Cir. 2003). The
government also alleged an aiding and abetting theory under 18 U.S.C.
§ 2(a) as part of its wire fraud scheme allegations in this case.
(See Counts 2-12.)
c.
Elements of Bank Fraud
With respect to Counts 13-20, alleging bank fraud in violation
of 18 U.S.C. § 1344(2), the elements are as follows: (1) defendant
knowingly carried out a scheme or plan to obtain money or property
from the financial institution specified in the count by making false
statements or promises; (2) defendant knew that the statements or
promises were false; (3) the statements or promises were material;
that is, they had a natural tendency to influence, or were capable of
influencing, a financial institution to part with money or property;
(4) defendant acted with the intent to defraud; and (5) the specified
financial institution was federally insured. 9th Cir. MJI No. 8.127.
The government also alleged both an aiding and abetting theory and a
willful causation theory of liability under 18 U.S.C. §§ 2(a) and
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2(b) as part of its bank fraud scheme allegations in this case. (See
Counts 13-20.)
d.
Elements of Money Laundering Conspiracy
With respect to count 26, alleging conspiracy to engage in money
laundering in violation of 18 U.S.C. § 1956(h), the elements are as
follows: (1) beginning no later than in or around March 2020 and
continuing until at least in or around October 2020, there was an
agreement between two or more persons to commit money laundering
and/or engaging in monetary transactions in property derived from
specified unlawful activity; and (2) defendant became a member of the
conspiracy knowing of at least one of its objects and intending to
help accomplish it. 9th Cir. MJI No. 8.20 (modified for 18 U.S.C.
§ 1956(h)). The same general principles regarding conspiratorial
liability described in section III.A.1.a apply with equal force here.
2.
The Evidence Against Defendant Was Overwhelming
As discussed in detail above, the government’s evidence against
defendant was overwhelming. The government presented mountains of
evidence seized from defendant’s phone and residence that directly
implicated him in the conspiracies to submit fraudulent PPP and EIDL
loan applications and launder the fraudulently obtained proceeds.
The evidence included fake and stolen identities used to fraudulently
apply for PPP and EIDL loans, copies of the fraudulent PPP and EIDL
loan applications, screenshots of PPP and EIDL application submitted
using the names of identity theft victims, and bank statements
related to accounts used to launder the proceeds. The government
also presented text message from defendant’s wife and brother
detailing defendant’s extensive role in the conspiracies, including
how and when he was compensated for his role in the fraud.
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Defendant’s arguments for acquittal and/or a new trial rely
exclusively on the purported unreasonableness of the jury’s rejection
of his incredible, self-serving, and internally contradictory
testimony. Despite defendant’s attempt to blame the entirety of the
fraud on his wife, his testimony was internally inconsistent and
contradicted by other evidence. He claimed he mistrusted Tamara
Dadyan so much that he refused to jointly file taxes with her, but
provided her those same tax forms to submit loan applications on
behalf of his personal business, no questions asked. He claimed his
business was devastated by the pandemic, but he used a significant
percentage of COVID-19 disaster relief funds on a Harley Davidson
motorcycle shortly after receiving the money. He claimed he
legitimately transferred loan proceeds to his brother to repay an
outstanding loan, but he layered that transfer through two different
accounts, both in the names of his business, before sending it – not
to his brother, but to Encore Escrow - for a multi-million dollar
mansion purchased in his brother’s name (GEX 115 at 7). Such
activity is more consistent with conspiracy to submit fraudulent PPP
and EIDL loan applications and launder the proceeds, than being the
unwitting beneficiary of someone else’s crime.
Given the overwhelming evidence of defendant’s knowledge and
participation in the charged offenses, and the internal
contradictions in his testimony highlighted not only through cross-
examination but also in the government’s closing argument (6/24/21
A.M. Tr. 55:23-64:16), any rational trier of fact could have found
him guilty of the charged offenses. Given defendant’s direct denial
of his role in the charged offenses, the jury’s verdict was a clear
rejection of his testimony and credibility. Since a reviewing must
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respect the exclusive province of the jury to determine the
credibility of witnesses when considering a Rule 29 motion, the Court
should defer to the jury’s verdict. Jackson, 443 U.S. at 319-20;
Ramos, 558 F.2d at 546-47. Moreover, given the record described
above, this is hardly the “exceptional case[] in which the evidence
preponderates heavily against the verdict.” Pimentel, 654 F.2d at
545. As such, defendant’s motions should be denied.
B.
Aggravated Identity Theft (Count 24)
1.
Elements of Aggravated Identity Theft
With respect to count 24, alleging aggravated identity theft in
violation of 18 U.S.C. § 1028A(a)(1), the elements are as follows:
(1) defendant knowingly transferred, possessed, or used without legal
-authority a means of identification of another person, to wit, the
name and date of birth of Anna Dzukaeva; (2) defendant knew that the
means of identification belonged to a real person; and (3) defendant
did so during and in relation to the crime of wire fraud, in
violation of 18 U.S.C. § 1343, charged in count 12. 9th Cir. MJI No.
8.83.
The word “person” includes both living and deceased persons, and
the government is not required to prove that the defendant knew the
person was living when the defendant committed the crime of
aggravated identity theft. United States v. Maciel-Alcala, 612 F.3d
1092, 1100-02 (9th Cir. 2010). The government need not prove that
the identification document was stolen. United States v. Osuna-
Alvarez, 788 F.3d 1183, 1185 (9th Cir. 2015); see also United States
v. Gagarin, 950 F.3d 596, 604-605 (9th Cir. 2020) (holding that
government is not required to prove that other person did not consent
to use of his or her means of identification). The government also
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alleged both an aiding and abetting theory and a willful causation
theory of liability under 18 U.S.C. §§ 2(a) and 2(b) as part of its
aggravated identity theft charge against defendant. (See Count 24.)
2.
Proof of Defendant’s Commission of the Aggravated
Identity Theft of Anna Dzukaeva’s Name Charged in
Count 24
The government’s evidence also provided substantial proof of
defendant’s knowledge that Anna Dzukaeva, a foreign exchange student,
was a real person. Among other things, the trial evidence included
numerous other J-1 visa applicant identifications found in the
Weddington residence, and evidence of the co-conspirators’ repeated
use of real names and identities belonging to foreign exchange
students found in defendant’s phone and in his home. These
identities included Iuliia Zhadko, Anton Kudiumov, Liudmyla Kopytova,
and others. Given the actual possession of J-1 visas and
identification documents found at the Weddington residence, the jury
could – and did – reasonably infer that defendants knowingly used
these real persons’ names and identities in combination with fake and
fraudulent information to submit fraudulent PPP and EIDL applications
and open accounts to transfer the resulting proceeds. (See 6/24/21
A.M. Tr. 70:3-71:3.) A rational juror would have been able to find
that it was a deliberate and knowing choice to target foreign
exchange students, not an unknowing coincidence, and the weight of
the evidence supports this conclusion as well. Defendant’s motions
with respect to count 24 should, therefore, be denied.
V.
CONCLUSION
For the foregoing reasons, the government respectfully requests
that this Court deny defendant’s motion for a judgment of acquittal
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under Federal Rule of Criminal Procedure 29 and/or a new trial under
Federal Rule of Criminal Procedure 33.
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#:13421File and source
- File
- gov.uscourts.cacd.802533.793.0.pdf
- Size
- 561,159 bytes
- SHA-256
- 72b9a25801b94d5146afcd1a42eaa2fb5e03fc5ce6483c219e8daf60ee057989
- Original
- PACER (login required)