Court filing
APPLICATION for Order for PRELIMINARY ORDERS OF FORFEITURE AGAINST DEFENDANT ARTUR… — USA v. Ayvazyan et al (Dkt. 909)
Record facts
| Court | U.S. District Court for the Central District of California |
|---|---|
| Filed | 2021-09-01 |
U.S. District Court for the Central District of California · No. 2:20-cr-00579-SVW · Doc. 909 · 2021-09-01 · Docket on CourtListener
Summary
The government's application for preliminary orders of forfeiture against defendant Artur Ayvazyan in United States v. Richard Ayvazyan, et al., No. 2:20-cr-00579-SVW, in the U.S. District Court for the Central District of California, filed September 1, 2021 as Document 909 by Assistant United States Attorney Brent A. Whittlesey. Under Fed. R. Crim. P. 32.2(b), it asks the court to enter four lodged preliminary orders covering $74,557.79 and $65,990.43 in seized Bank of America funds and three real properties in Tarzana, Glendale and Palm Desert, California. The memorandum states that the jury found the defendant guilty on counts including 18 U.S.C. § 1349 and 18 U.S.C. § 1956(h) and found his interest in the property subject to forfeiture. It proposes forfeiture language under 21 U.S.C. § 853 for the sentencing hearing set for October 18, 2021.
Summary drafted by a model from the document's text below and checked by script against that text before publication. It is a navigation aid, not a reading of what the document proves. Where AI is used
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TRACY L. WILKISON
Acting United States Attorney
SCOTT M. GARRINGER
Assistant United States Attorney
Chief, Criminal Division
JONATHAN GALATZAN
Assistant United States Attorney
Chief, Asset Forfeiture Section
BRENT A. WHITTLESEY (Cal. Bar No. 73493)
Assistant United States Attorney
Asset Forfeiture Section
1400 United States Courthouse
312 North Spring Street
Los Angeles, California 90012
Telephone: (213) 894-5421
Facsimile: (213) 894-0142
E-mail: brent.whittlesey@usdoj.gov
Attorneys for Plaintiff
United States of America
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
v.
RICHARD AYVAZYAN,
Aka “Richard Avazian” and
“Iuliia Zhadko,” et al.
Defendants.
No. CR 20-00579-SVW-3
GOVERNMENT'S APPLICATION FOR
PRELIMINARY ORDERS OF
FORFEITURE AGAINST DEFENDANT
ARTUR AYVAZYAN
Sentencing Hearing
Date: October 18, 2021
Time: 11:00 a.m.
Courtroom: 10A
TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
Plaintiff United States of America, by and through its
counsel of record, the United States Attorney for the Central
District of California and Assistant United States Attorney
Case 2:20-cr-00579-SVW Document 909 Filed 09/01/21 Page 1 of 15 Page ID
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Brent A. Whittlesey, hereby applies for issuance of a
Preliminary Orders of Forfeiture (“POFs”) lodged
contemporaneously herewith,1 pursuant to Fed. R. Crim. P. 32.2(b)
and with respect to questions 1 through 24 and defendant’s
guilty conviction on Counts One, Two through Twelve, Thirteen
through Twenty, Twenty-four, and Twenty-six of the First
Superseding Indictment as to the following property
(“Forfeitable Property”) to be forfeited to the United States of
America:
a.
$74,557.79 in bank funds seized from Bank of America
account number ending in 7695 held in the name of Allstate
Towing & Transport LLC;
b.
$65,990.43 in bank funds seized from Bank of America
account ending in 9700 held in the name of Runyan Tax Service
Inc.;
c.
The real property located at 4910 Topeka Drive,
Tarzana, California, APN: 2176-029-031, more particularly
described as:
DESCRIPTION: THE LAND REFERRED TO HEREIN IS SITUATED IN THE
COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, AND IS
DESCRIBED AS FOLLOWS:
PARCEL 1:
THOSE PORTIONS OF LOT 71 and 72 OF TRACT 2605, IN THE CITY
OF LOS ANGELES, COUNTY OF LOS ANGELES, STATE OF CALIFORNIA,
1 The government has lodged a total of four POFs – one for each
of the three real properties described below and one for the
remaining assets. Individual POFs are required for each parcel
of real property because orders purporting to effect title to
multiple parcels of real property cannot be recorded.
Case 2:20-cr-00579-SVW Document 909 Filed 09/01/21 Page 2 of 15 Page ID
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AS PER MAP RECORDED IN BOOK 27 PAGE 55 ET SEQ. OF MAPS, AND
THAT PORTION OF PARCEL "A” OF PARCEL MAP L.A. NO. 2015 AS
PER MAP FILED IN BOOK 32 PAGE 19 OF PARCEL MAPS, IN THE
OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, DESCRIBED AS
FOLLOWS:
BEGINNING AT A POINT IN THE CENTERLINE OF TOPEKA DRIVE, 40
FEET WIDE, AS SHOWN ON SAID MAP, DISTANT THEREON SOUTH 15°
10' 00" WEST 178.55 FEET FROM THE NORTHEASTERLY TERMINUS OF
THAT CERTAIN COURSE IN THE CENTERLINE OF TOPEKA DRIVE SHOWN
ON SAID MAP AS HAVING A BEARING OF NORTH 15° 10' 00" EAST
AND LENGTH OP 1055.19 FEET;
THENCE SOUTH 74° 50' 00" EAST 56.09 FEET TO THE BEGINNING
OF A TANGENT CURVE, CONCAVE TO THE NORTHWEST, HAVING A
RADIUS OF 129.86 FEET;
THENCE EASTERLY ALONG SAID CURVE 128.40 FEET; TO THE TRUE
POINT OF BEGINNING;
THENCE TANGENT TO SAID CURVE NORTH 48° 30' 50" EAST 147.14
FEET TO THE BEGINNING OF A TANGENT CURVE, CONCAVE TO THE
SOUTHEAST, HAVING A RADIUS OF 100.05 FEET;
THENCE EASTERLY ALONG SAID CURVE, 125.14 FEET, A RADIAL
LINE TO SAID POINT BEARS NORTH 30° 10' 46" EAST;
THENCE NORTH 10° 52' 46" EAST 45.32 FEET;
THENCE SOUTH 84° 29' 18" EAST 182.82 FEET;
THENCE SOUTH 04° 13' 10" WEST 195.63 FEET TO A POINT IN A
CURVE CONCAVE WESTERLY HAVING A RADIUS OF 175.31 FEET; A
RADIAL LINE TO SAID POINT BEARS NORTH 62° 22' 50” EAST;
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THENCE CONTINUING EASTERLY AND SOUTHERLY ALONG SAID CURVE
THROUGH A CENTRAL ANGLE OF 50° 06' 30" AN ARC DISTANCE OF
153.32 FEET;
THENCE TANGENT TO SAID CURVE SOUTH 22° 29' 20" WEST 63.38
FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE TO THE
NORTHWEST HAVING A RADIUS OF 375.00 FEET;
THENCE SOUTHWESTERLY ALONG SAID CURVE, THROUGH A CENTRAL
ANGLE OF 13° 52' 00" 90.76 FEET TO THE BEGINNING OF A
REVERSE CURVE CONCAVE TO THE SOUTHEAST HAVING A RADIUS OF
161.89 FEET;
THENCE SOUTHEASTERLY ALONG SAID CURVE, THROUGH A CENTRAL
ANGLE OF 17° 46' 00" 50.20 FEET TO THE BEGINNING OF A
REVERSE CURVE CONCAVE TO THE NORTHWEST HAVING A RADIUS OF
75.69 FEET;
THENCE SOUTHWESTERLY AND WESTERLY ALONG SAID CURVE, THROUGH
A CENTRAL ANGLE OF 33° 58' 30" 44.88 FEET TO A POINT OF
CUSP IN THE NORTHERLY LINE OF SAID PARCEL "A" SAID
NORTHERLY LINE BEING A CURVE CONCAVE SOUTHWESTERLY HAVING A
RADIUS OF 30.00'; A RADIAL LINE TO SAID POINT BEARS SOUTH
38° 26' 10" EAST;
THENCE EASTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE
116° 31' 20" AN ARC DISTANCE OF 61.01 FEET;
THENCE SOUTH 10° 54' 50" EAST 92.71 FEET;
THENCE SOUTH 80° 16' 17" WEST 20.00 FEET;
THENCE NORTH 31° 28' 33" WEST 120.33 FEET;
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THENCE NORTH 22° 17' 48" WEST 20.00 FEET TO THE BEGINNING
OF A CURVE CONCAVE NORTHWESTERLY HAVING A RADIUS OF 55.69
FEET;
THENCE NORTHEASTERLY ALONG SAID CURVE THROUGH A CENTRAL
ANGLE OF 49° 06' 52" AN ARC DISTANCE OF 47.74 FEET TO THE
BEGINNING OF A REVERSE CURVE CONCAVE SOUTHEASTERLY HAVING A
RADIUS OF 181.89 FEET;
THENCE NORTHEASTERLY ALONG SAID CURVE THROUGH A CENTRAL
ANGLE OF 17° 46' 00" AN ARC DISTANCE OF 56.40 FEET TO THE
BEGINNING OF A REVERSE CURVE CONCAVE NORTHWESTERLY HAVING A
RADIUS OF 355.00 FEET;
THENCE NORTHEASTERLY ALONG SAID CURVE THROUGH A CENTRAL
ANGLE OF 12° 45' 16" AN ARC DISTANCE OF 79.03 FEET;
THENCE NORTH 67° 12' 02" WEST 268.30 FEET;
THENCE NORTH 15° 10' 00" EAST 43.00 FEET;
THENCE NORTH 47° 02' 30" WEST 175.00 FEET TO THE TRUE POINT
OF BEGINNING.
PARCEL 2:
THE RIGHT OF INGRESS AND EGRESS FOR SAID PROPERTY OVER A
ROADWAY EASEMENT FROM TOPEKA DRIVE OVER THAT PORTION OF LOT
71, OF TRACT NO. 2605, IN THE CITY OF LOS ANGELES, COUNTY
OF LOS ANGELES, STATE OF CALIFORNIA, AS PER MAP RECORDED IN
BOOK 27, PAGE 55, ET SEQ., OF MAPS, IN THE OFFICE OF THE
COUNTY RECORDER OF SAID COUNTY, INCLUDED WITHIN A STRIP OF
LAND 30.00 FEET IN WITH, LYING 15.00 FEET ON EACH SIDE OF
THE FOLLOWING DESCRIBED CENTER LINE:
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BEGINNING AT THE SOUTHWESTERLY CORNER OF THE LAND CONVEYED
TO CIRELLA G. SMITH AND HUSBAND, BY DEED RECORDED JULY 8,
1943 AS INSTRUMENT NO. 118, IN BOOK 20132 PAGE 100,
OFFICIAL RECORDS, SAID CORNER BEING DISTANT 261.45 FEET
NORTHERLY FROM THE SOUTHWESTERLY CORNER OF LOT 71, SAID
TRACT 2605; THENCE NORMAL TO THE EASTERLY LINE OF TOPEKA
DRIVE, SOUTH 74° 50' 00” EAST 36.09 FEET TO THE BEGINNING
OF A TANGENT CURVE CONCAVE TO THE NORTHWEST HAVING A RADIUS
OF 129.86 FEET; THENCE NORTHEASTERLY ALONG SAID CURVE,
128.40 FEET; THENCE TANGENT TO SAID CURVE, NORTH 48° 30'
50" EAST 147.14 FEET TO THE BEGINNING OF A TANGENT CURVE
CONCAVE SOUTHERLY, HAVING A RADIUS OF 100.05 FEET; THENCE
EASTERLY ALONG SAID CURVE, 144.70 FEET; THENCE TANGENT TO
SAID CURVE, SOUTH 48° 37' 10" EAST, 161.06 FEET TO THE
BEGINNING OF A TANGENT CURVE CONCAVE WESTERLY, HAVING A
RADIUS OF 175.31 FEET, THENCE SOUTHERLY ALONG SAID CURVE,
217.57 FEET; THENCE TANGENT TO SAID CURVE, SOUTH 22° 29'
20" WEST 42.15 FEET TO A POINT.
d.
The real property located 834 Calle La Primavera,
Glendale, California, APN: 5663-036-33, more particularly
described as:
Parcel 1:
Lot 56 of Tract No. 45375, in the City of Glendale, County
of Los Angeles, State of California, as per map recorded in
Book 1128, Page(s) 55 to 63 inclusive of Maps, in the
office of the County Recorder of said County.
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Except therefrom all oil and minerals in, on and under said
land as reserved by Benjamin Dreyfus in deeds recorded in
Book 101, Pages 551 and in Book 107, Page 447 both of
Deeds, in said Office of the County Recorder.
Parcel 2:
Non-exclusive easements for access, ingress, egress,
encroachments, maintenance, repair, drainage, support and
other purposes, all as described in the Master Declaration
recorded March 7, 1989 as Instrument No. 1989-354873 and
any amendments thereto.
e.
The real property located at 74203 Anastacia Lane,
Palm Desert, California, APN: 684-331-008, more particularly
described as:
Parcel 1:
Lot 56 of Tract No. 45375, in the City of Glendale, County
of Los Angeles, State of California, as per map recorded in
Book 1128, Page(s) 55 to 63 inclusive of Maps, in the
office of the County Recorder of said County.
Except therefrom all oil and minerals in, on and under said
land as reserved by Benjamin Dreyfus in deeds recorded in
Book 101, Pages 551 and in Book 107, Page 447 both of
Deeds, in said Office of the County Recorder.
Parcel 2:
Non-exclusive easements for access, ingress, egress,
encroachments, maintenance, repair, drainage, support and
other purposes, all as described in the Master Declaration
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recorded March 7, 1989 as Instrument No. 1989-354873 and
any amendments thereto.
This application, which deals solely with the Forfeitable
Property, is supported by the finding of guilt as to defendant,
the finding by the jury that defendant’s interest in the
Forfeitable Property is subject to forfeiture to the United
States, and the matters set forth in the accompanying Memorandum
of Points and Authorities.
DATED: September 1, 2021 Respectfully submitted,
TRACY L. WILKISON
Acting United States Attorney
SCOTT M. GARRINGER
Assistant United States Attorney
Chief, Criminal Division
/s/Brent A. Whittlesey
BRENT A. WHITTLESEY_
Assistant United States Attorney
Asset Forfeiture Section
Attorneys for Plaintiff
UNITED STATES OF AMERICA
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MEMORANDUM OF POINTS AND AUTHORITIES
I. INTRODUCTION
Defendant was found guilty to Counts One, Two through
Twelve, Th, Thirteen through Twenty, Twenty-four, and Twenty-six
of the First Superseding Indictment in this case, charging him
with a violation of 18 U.S.C. § 1349 (conspiracy to commit wire
fraud and bank fraud), a violation of 18 U.S.C. § 1343 (wire
fraud), a violation of 18 U.S.C. § 1344(s) (bank fraud and
attempted bank fraud), a violation of 18 U.S.C.
§§ 1028A(a)(1)(aggravated identity theft), and a violation of 18
U.S.C. § 1956(h) (conspiracy to commit money laundering). After
the verdict was returned, the jury determined that defendant’s
interest in the following Forfeitable Property:
a.
$74,557.79 in bank funds seized from Bank of America
account number ending in 7695 held in the name of Allstate
Towing & Transport LLC;
b.
$65,990.43 in bank funds seized from Bank of America
account ending in 9700 held in the name of Runyan Tax Service
Inc.;
c.
The real property located at 4910 Topeka Drive,
Tarzana, California, APN: 2176-029-031;
d.
The real property located 834 Calle La Primavera,
Glendale, California, APN: 5663-036-33; and
e.
The real property located at 74203 Anastacia Lane,
Palm Desert, California, APN: 684-331-008
was forfeited to the United States.
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Pursuant to Rule 32.2(b), the government now applies for
the entry of the Preliminary Order of Forfeiture of the
Forfeitable Property (the proposed order is lodged
contemporaneously herewith). The government also requests that
the forfeiture of the Forfeitable Property be stated orally at
defendant’s sentencing and set forth in defendant’s Judgment and
Commitment Order.
II. ARGUMENT
A.
The Jury Found the Required Nexus Between Defendant's
Crime and the Forfeitable Property
Rule 32.2 of the Federal Rules of Criminal Procedure
provides, in pertinent part:
As soon as practicable after entering a guilty verdict or
accepting a plea of guilty or nolo contendere on any count in an
indictment or information with regard to which criminal
forfeiture is sought, the court must determine whether the
government has established the requisite nexus between the
property and the offense. . . . The court's determination may be
based on . . . any written plea agreement . . . .
Fed. R. Crim. P. 32.2(b)(1). The Advisory Committee Notes for
this provision explain that for the preliminary order of
forfeiture, the court must determine "if the property was
subject to forfeiture under the applicable statute, e.g.,
whether the property represented the proceeds of the offense . .
. ." Advisory Committee Notes to Rule 32.2, subdivision (a)
(2000 Adoption). The standard of proof regarding the
forfeitability of property in a criminal case is preponderance
of the evidence. See United States v. Najjar, 300 F.3d 466,
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485-86 (4th Cir. 2002); United States v. Shryock, 342 F.3d 948,
991 (9th Cir. 2003) (following Najjar); United States v.
DeFries, 129 F.3d 1293, 1312 (D.C. Cir. 1997); United States v.
Hernandez-Escarsega, 886 F.2d 1560, 1576-77 (9th Cir. 1989)
(interpreting language in 21 U.S.C. § 853); United States v.
Bieri, 21 F.3d 819 (8th Cir. 1994)(§ 853).
Thus, the only question before the Court in connection with
the requested entry of the proposed Preliminary Order is whether
the evidence before the Court is enough to establish by a
preponderance of the evidence that there is a nexus between the
specific property to be forfeited, and the offenses to which
defendant was found guilty. See Rule 32.2(b)(1).
The existence or extent of third-party interests in the
specific property will be determined after the entry of the
preliminary order. See United States v. Lazarenko, 476
F.3d 642, 648 (9th Cir. 2007) (“Upon a finding that the property
involved is subject to forfeiture, a court must promptly enter a
preliminary order of forfeiture without regard to a third
party’s interests in the property.”). The preliminary order
should be entered promptly in order to avoid unnecessary delay
in the forfeiture process and resolve potential third party
rights. United States v. Yeje-Cabrera, 430 F.3d 1, 15 (1st Cir.
2005). The defendant need not be present when the preliminary
order is entered. United States v. Segal, 495 F.3d 826, 837-38
(7th Cir. 2007).
The government is not required to establish the defendant’s
ownership of the property either to seize it or to obtain a
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preliminary order of forfeiture, and third parties are
prohibited from intervening in the criminal case, and cannot
complain that they have to wait for the ancillary proceeding to
assert their rights. Almeida v. United States, 459 F.3d 377,
381 (2d Cir. 2006); 18 U.S.C. § 1963(i). As explained in the
Advisory Committee Notes to Rule 32.2 (2000), the Rule was
revised with the intent to eliminate confusion over whether the
extent of the defendant’s ownership interest should be
determined by the finder of fact. The new rule clarified that
the only question upon conviction or a guilty plea is whether
there is a nexus between the violation of which the defendant
has been convicted (or to which he has pled) and the property
sought - if there is, the court should enter an order forfeiting
“whatever interest a defendant may have in the property without
having to determine exactly what that interest is.”2 A
defendant cannot object to the entry of a preliminary order on
the ground that the property at issue does not belong to him.
United States v. Schlesinger, 396 F. Supp. 2d 267, 273 (E.D.N.Y.
2005).
Here, the jury has already determined that the defendant’s
interest in the Forfeitable Property was subject to forfeiture
2 Criminal forfeiture is part of the defendant’s sentence,
so it is available only if the defendant is convicted of the
underlying substantive offense. Lazarenko, supra. If the
defendant is convicted, his interest in the property must be
forfeited regardless of what that interest is, so it is not
necessary to determine the extent of the interest. The only
issues left to be determined concerning ownership are those of
non-defendant third parties, whose interests are determined in
the ancillary process. Only after that process is complete does
the government obtain a Final Order of Forfeiture.
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to the United States as 1) property constituting or derived from
proceeds obtained, directly or indirectly, as a result of the
offenses traceable to one or more violations of 18 U.S.C.
§§ 1349, 1343, 1344(2), and 18 U.S.C. § 1028A(a) property
involved in or traceable to violations of 18 U.S.C. § 1957. As
such, the requirements of Rule 32.2(b) have been met and the
proposed Preliminary Order should be entered.
B.
The Mechanics of the Criminal Forfeiture
The Preliminary Order of Forfeiture becomes final as to the
defendant at the time of sentencing (or before sentencing, if
defendant consents). Rule 32.2(b)(3). After entry of the
preliminary order, the second phase of the forfeiture
proceedings may begin, to determine whether any third party
rights may exist in the specific property to be forfeited. Fed.
R. Crim. P. 32.2(c)(1).
Accordingly, the government respectfully requests that the
Court enter the proposed Preliminary Orders of Forfeiture lodged
contemporaneously herewith, authorizing the government to seize
the property subject to forfeiture (to the extent it has not
already done so) and to commence proceedings governing
third-party rights. Fed. R. Crim. P. 32.2(b)(3). The government
will publish notice generally. Following such notification and
completion of any necessary ancillary proceedings, the
government will submit, as appropriate, final orders of
forfeiture pursuant to Fed. R. Crim. P. 32.2(c).
III. FORFEITURE MUST BE PRONOUNCED AT SENTENCING
At sentencing, pursuant to Rule 32.2(b)(3) of the Federal
Rules of Criminal Procedure, the "order of forfeiture becomes
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final as to the defendant and shall be made a part of the
sentence and included in the judgment."
The Court must pronounce the forfeiture conditions orally
as part of the sentence imposed on the defendant, and must
include the forfeiture in the judgment and commitment order.
See United States v. Gaviria, 116 F.3d 1498, 1530 (D.C. Cir.
1997) (forfeiture portion of the defendant’s sentence must be
announced in his presence pursuant to Fed. R. Crim. P. 43(a)).
The government recommends the following language be read to the
defendant and modified as necessary for inclusion in the
judgment and commitment order at the time of his sentencing:
Pursuant to 21 U.S.C. § 853 and Counts One, Two
through Twelve, Thirteen through Twenty, Twenty-four
and Twenty-six of the First Superseding Indictment,
defendant ARTUR AYVAZYAN has forfeited all of his
right, title, and interest in the specific property
more particularly described in the Preliminary Orders
of Forfeiture entered on [date].
///
///
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IV. CONCLUSION
For the foregoing reasons, the government respectfully
requests that the Court forthwith enter the proposed Preliminary
Orders of Forfeiture lodged herewith.
DATED: _September 1, 2021
Respectfully submitted,
TRACY L. WILKISON
Acting United States Attorney
SCOTT M. GARRINGER
Assistant United States Attorney
Chief, Criminal Division
/s/Brent A. Whittlesey
BRENT A. WHITTLESEY_
Assistant United States Attorney
Asset Forfeiture Section
Attorneys for Plaintiff
UNITED STATES OF AMERICA
Case 2:20-cr-00579-SVW Document 909 Filed 09/01/21 Page 15 of 15 Page ID
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