Ex Parte Application for Bond Pending Appeal — USA v. Ayvazyan et al. (Dkt. 1226, C.D. Cal.)

Record facts

U.S. District Court for the Central District of California · No. 2:20-cr-00579-SVW · Doc. 1226 · 2021-12-29 · Docket on CourtListener

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TARIK S. ADLAI, SBN 165454
LAW OFFICES OF TARIK S. ADLAI
65 No. Raymond Avenue, Suite 320
Pasadena, California 91103
Tel: (626) 578-7294
Fax: (626) 685-2562
E-mail: tadlai@adlailaw.com
Attorney for Defendant
ARTUR AYVAZYAN
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
UNITED STATES OF
AMERICA,
Plaintiff,
                v.
ARTUR AYVAZYAN,
Defendant.
Case NO. 20-CR-00579-SVW
EX PARTE APPLICATION
FOR RELEASE ON BAIL
PENDING APPEAL
(18 U.S.C. § 3143)
TO THE HONORABLE STEPHEN V. WILSON, UNITED STATES
DISTRICT JUDGE, ALL PARTIES AND THEIR ATTORNEYS OF
RECORD:
Defendant Artur Ayvazyan, by and through his newly-
retained appellate counsel Tarik S. Adlai, hereby respectfully
applies for an Order allowing Mr. Ayvazyan to remain released on
bond pending appeal, including a stay of his prison term and
surrender date.
This application is made on the ground that Artur Ayvazyan
poses no risk of flight or danger and that his newly-retained
counsel has identified several potential appellate issues that are
likely to result in reversal, an order for a new trial, or a reduced
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term of imprisonment less than the expected duration of the
appellate process.
This application is based on the papers, pleadings and records
on file in this case, the attached memorandum of points and
authorities, declaration of counsel, and any other information or
argument the Court may receive.
The Government’s position is not known at this time.
DATED: December 29, 2021.
Respectfully submitted,
Law Offices of Tarik S. Adlai
      /s/ Tarik S. Adlai
TARIK S. ADLAI, Esq.
Attorney for Defendant 
Artur Ayvazyan
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TABLE OF CONTENTS
TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
iii
TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v
INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
I.
A Defendant Who Poses No Risk of Flight or
Danger and Presents a Non-Frivolous Issue That,
If Sustained Would Result in Reversal, Is Entitled
to Bail on Appeal.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
II.
Mr. Artur Ayvazyan Poses No Risk of Flight or
Danger. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
III.
The Record Reveals Several Fairly Debatable
Appellate Issues That Could Result In Reversal. . . . . . 5
A.
The Court Likely Erred In Failing to Instruct
on Multiple Conspiracies. . . . . . . . . . . . . . . . . . . . 5
B.
There Was Insufficient Evidence to Support
the Conviction for Aggravated Identity Theft.. . . 7
C.
Mr. Ayvazyan’s Sentencing Guidelines
Should Have Been Adjusted Downward for
His Limited Role in the Offense. . . . . . . . . . . . . . 8
D.
Failure to Address Defendant. . . . . . . . . . . . . . . 11
CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
DECLARATION OF TARIK S. ADLAI.. . . . . . . . . . . . . . . . . . . . . 13
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TABLE OF AUTHORITIES
Cases
Burks v. United States,
473 U.S. 1 (1978). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Flores-Figueroa v. United States,
556 U.S. 646 (2009).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Green v. United States,
365 U.S. 301 (1961). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
United States v. Anguiano,
873 F.2d 1314 (9th Cir. 1989). . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
United States v. Diaz,
884 F.3d 911 (9th Cir. 2018). . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
United States v. Garcia,
340 F.3d 1013 (9th Cir. 2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
United States v. Handy,
761 F.2d 1279 (9th Cir. 1985). . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
United States v. Perdomo-Espana,
522 F.3d 983 (9th Cir. 2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
United States v. Spentz,
653 F.3d 815 (9th Cir. 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Statutes and Rules
18 U.S.C.
§ 1028A(a)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
§ 3143(b).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
FED. R. CRIM. P. 32(i)(4)(A)(ii). . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
U.S.S.G.
§ 3B1.2.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9-11
App. C, Amend. 755 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
App. C, Amend. 794.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Miscellaneous
Measuring Recidivism: The Criminal History Computation Of The
Federal Sentencing Guidelines, (2004), available at
http://www.ussc.gov/sites/default/files/pdf/research-and-
publications/research-publications/2004/200405-
_Recidivism_Criminal_History.pdf... . . . . . . . . . . . . . . . . . . . 4
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INTRODUCTION
Artur Ayvazyan should allowed to remain released on bail
pending appeal.  He poses no risk of flight or danger.  Even a
cursory review of the record by appellate counsel reveals significant
issues that are likely to result in reversal.
STATEMENT OF FACTS
Artur Ayvazyan was convicted of fraud, identity theft and
money laundering arising out of his wife’s and brother’s scheme to
submit fraudulent PPP loan applications for fictitious people and
companies.  Artur applied for a PPP loan and EIDL grants, through
his wife, for Allstate Towing and Transport, a trucking business he
had owned and operated for years.  The applications submitted by
his wife, however, contained material misstatements.  It is
undisputed that, unlike most all of the other applications processed
by his wife and brother, Mr. Ayvazyan’s applications were
submitted in his own name and for his own pre-existing company. 
Artur Ayvazyan was nonetheless accused and convicted of
participating in the fraudulent scheme orchestrated by his wife and
brother.
Mr. Artur Ayvazyan is a naturalized citizen who moved to the
United States when he was 8 years old.  His parents divorced when
he was 5.  The massive destruction and displacement caused by the
1988 Armenian Earthquake prompted his single mother to move to
America with her two children.  Artur did not grow up with his
father, did not know his father, and only learned of his father’s
death upon returning from his honeymoon.
Artur Ayvazyan is now a 41 year old man with two children of
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his own, as well as the two nephews and a niece he took into his
home when his brother disappeared.  He owned and operated a
trucking business for the past 10 years which, if not thriving, at
least generated enough income for him to survive.  His only
criminal point was for public intoxication 6 years ago for which he
was placed on probation.
Mr. Ayvazyan was released on a $100,000 appearance bond
the day after his November 5, 2020 arrest.  He surrendered his
U.S. Passport that same day.  Dkt. 6.  He has made all court
appearances.  When contacted by his brother’s pretrial services
officer to check on his sister-in-law, he went to their home to find
his brother and wife missing.  He brought his brother’s three
children back with him to his home.  Thereafter, Mr. Ayvazyan
showed up for sentencing, fully aware that the Government
claimed he was in violation of the terms of his release, sought 21
years imprisonment, and that the probation officer calculated his
guidelines range as 14 to 17½ years, and recommended a sentence
of 16 years.  In mid-November, the Court sentenced Artur
Ayvazyan to 5 years imprisonment with a surrender date of
January 3, 2022.  The Court deferred entering judgment until
December.  C.R. 1198. Mr. Ayvazyan has not yet been designated to
an institution but he has already paid the special assessments the
Court imposed on him.
ARGUMENT
I.
A Defendant Who Poses No Risk of Flight or Danger
and Presents a Non-Frivolous Issue That, If Sustained
Would Result in Reversal, Is Entitled to Bail on Appeal
A defendant is entitled to be released pending appeal on a
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#:19510

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showing that he “is not likely to flee or pose a danger to the safety
of any other person or the community if released” and that “the
appeal is not for the purpose of delay and raises a substantial
question of law or fact likely to result in [] reversal.”  18 U.S.C. §
3143(b).
The Ninth Circuit has repeatedly emphasized that instead of
requiring an appellant to establish a likelihood of success, the
“likely to result” in reversal standard describes “the type of question
that must be presented.”  United States v. Garcia, 340 F.3d 1013,
1020 n.5 (9th Cir. 2003) (emphasis added); United States v. Handy,
761 F.2d 1279, 1280 (9th Cir. 1985).
For there to be a “substantial question,” the prospective
appellant need only show that the issue is “fairly debatable’ or
‘fairly doubtful.’”  Handy, 761 F.2d at 1283.  This standard simply
requires “more substance than would be necessary to a finding that
[the question] was not frivolous.”  Id.; accord Garcia, 340 F.3d at
1020 n.5.  
In short, the defendant need only propose to raise “a non-
frivolous issue that, if decided in the defendant’s favor, would likely
result in reversal or could satisfy one of the other conditions.”
Garcia, 340 F.3d at 1013 n.5.
II.
Mr. Artur Ayvazyan Poses No Risk of Flight or Danger
Mr. Artur Ayvazyan has a strong connection to the United
States and to Los Angeles in particular.  When he first came to the
United States with his mother, the family moved to the Los
Angeles area where he has lived ever since.  He has lived in
Encino, with his two young teenage daughters, both citizens, for
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#:19511

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over a decade and a half.  He has been the most responsible
caretaker for his aging and disabled mother for years, even though
his older brother also lived only a short distance away from them. 
His wife, Tamara Dadyan, is also a United States citizen.
Mr. Artur Ayvazyan was released on an unsecured
appearance bond over a year ago.  He has attended all court
hearings.  He has never even showed up late.
In allowing Artur Ayvazyan to remain on bond not only after
conviction, but also after sentencing, the Court has already
manifested a clear finding that Mr. Artur Ayvazyan poses no risk of
flight or danger to the community.  Artur Ayvazyan has honored
his promises to the Court.
Nor does he pose any risk of danger.  The crime of conviction
was a white collar fraud organized and orchestrated by others.  The
case involved no violence, physical injury, property damage or
threats to inflict them.  He was in the lowest criminal history
category, with only one point for a public intoxication for which he
was placed on probation.  Furthermore, as someone over 40, Mr.
Ayvazyan’s likelihood of offending again is dramatically lower than
the average offender.  Defendants over the age of 40 exhibit
markedly lower rates of recidivism in comparson to younger
defendants.   See Measuring Recidivism: The Criminal History
Computation Of The Federal Sentencing Guidelines, at 12, 28
(2004), available at http://www.ussc.gov/sites/default/files/pdf/-
research-and-publications/research-publications/2004/200405-
_Recidivism_Criminal_History.pdf (“Recidivism rates decline
relatively consistently as age increases,” from 35.5% under age 21
to 9.5% over 50).
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III.
The Record Reveals Several Fairly Debatable Appellate
Issues That Could Result In Reversal1
A.
The Court Likely Erred In Failing to Instruct on
Multiple Conspiracies
“A defendant is entitled to have the jury instructed on his or
her theory of defense, as long as that theory has support in the law
and some foundation in the evidence.”  United States v. Perdomo-
Espana, 522 F.3d 983, 986-87 (9th Cir. 2008).  “Only slight
evidence will create the factual issue necessary to get the defense
to the jury, even though the evidence is weak, insufficient,
inconsistent, or of doubtful credibility.”  United States v. Spentz,
653 F.3d 815, 818 (9th Cir. 2011) (internal quotations omitted).
No different than any other theory of defense, “A defendant is
entitled to a multiple conspiracies instruction [] if the defendant’s
theory of multiple conspiracies is supported by law and has some
foundation in the evidence.”  United States v. Anguiano, 873 F.2d
1314, 1317 (9th Cir. 1989).  Here, there was substantial foundation
in the evidence that the Government was prosecuting two different
conspiracies in a single conspiracy count.
The jury received evidence that Grigoryan, Paronyan, and the
two Hayrapetyans had never had any contacts, connections or
communications about PPP or EIDL loans with Terabelian, the two
Ayvazyans or the two Dadyans.  They effectively operated in two
separate universes:
    
Identification of all the claims and full briefing must
1.
necessarily follow a thorough review of all of the many transcripts
and the voluminous record in this case.  In the district court, there
were numerous significant motions and issues that could easily
form the basis for appeal.  The docket already contains over 1,200
entries.
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Although there were text messages, telephone calls, and
emails within and amongst Grigoryan, Paronyan, and the
Hayrapetyans, as well as extensive communications between the
Tamara Dadyan and Richard Ayvazyan and lesser amounts of
relevant communications with the others, there was no cross-
communication between the groups.
To the extent there was any cross-communication, insofar as
he had social contacts with the latter, Richard Ayvazyan was the
hub between Grigoryan and his brother’s wife Tamara:
But there were no communications about the alleged
fraudulent schemes between the two groups.
Although the Court recognized that there was sufficient
Richard Ayvazyan
Marietta Terabelian
Tamara Dadyan
Vahe Dadyan
Artur Ayvazyan
Manuk Grigoryan
Arman Hayrapetyan
Payrur Hayrapetyan
Edvard Paronyan
Manuk Grigoryan
Arman Hayrapetyan
Payrur Hayrapetyan
Edvard Paronyan
Richard
Ayvazyan
Marietta Terabelian
Tamara Dadyan
Vahe Dadyan
Artur Ayvazyan
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evidence to permit the defense to argue the government did not
prove a single conspiracy, the Court refused to instruct the jurors
that the difference between one overarching conspiracy and two
separate conspiracies was not merely proof of additional
criminality, but was legally significant as reflecting a failure to
prove the offense that was charged.
B.
There Was Insufficient Evidence to Support the
Conviction for Aggravated Identity Theft
Artur Ayvazyan was convicted of aggravated identity theft. 
18 U.S.C. § 1028A(a)(1).  The Supreme Court has clearly held that
to sustain a conviction, this section “requires the Government to
show that the defendant knew that the means of identification at
issue belonged to another person.”  Flores-Figueroa v. United
States, 556 U.S. 646, 657 (2009).
The Government’s principal evidence purportedly connecting
Artur Ayvazyan to falsified identifications was seized from
Dadyan’s office in the family home.  Not only did the Government
present no evidence that Artur had exclusive access to Dadyan’s
office, but it did not even present evidence that Artur ever used
Dadyan’s office or stored items there.  The only evidence at trial
was that Artur did not use Dadyan’s office, did not store papers in
her office, and that the handwriting on the papers seized from
Dadyan’s office was not Artur’s handwriting.   The Government’s
2
only other evidence was photographs found on phones seized from
the house.  But, again, the Government presented no evidence
    
Unsurprisingly, most of the handwriting on the papers seized
2.
from the family home was Dadyan’s, not Artur’s.
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Artur had sole or exclusive control over those phones and the
evidence the jury received was in fact to the contrary:  that Dadyan
had unfettered access to and frequently used other family
members’ phones, including Artur’s (often explaining she had not
kept her phone adequately charged).
The Government hypothesized that Richard Ayvazyan and
Tamara Dadyan created “synthesized” identities from
amalgamations of data.  To sustain a conviction, the law requires
that the defendant knew the identification pertained to a real, not
merely synthetic, person.
The Government appears to have failed to prove that the
fraudulent scheme employed the identities of actual, not synthetic,
people, and that Artur knew that the identities of real people were
involved.
If the evidence is found insufficient, the conviction will have
to be reversed.  Burks v. United States, 473 U.S. 1, 17-18 (1978)
C.
Mr. Ayvazyan’s Sentencing Guidelines Should Have
Been Adjusted Downward for His Limited Role in the
Offense
The Government consistently characterized Richard
Ayvazyan and Tamara Dadyan as “the two leaders.”  R.T. 6/24/21,
at 39, 42.  Dadyan was a real estate agent with a home office.  The
Government presented evidence that Richard Ayvazyan and
Tamara Dadyan’s operation processed over 150 loans under the
Paycheck Protection Program seeking, according to the
Government, in excess of $21 million.  Although seeking to saddle
him with the full scope of the loans applied for by his wife and
brother, the Government’s only evidence was that Mr. Artur
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Ayvazyan’s trucking business, Allstate Towing and Transport,
received a single PPP loan for $124,000 and a single EIDL for
$150,000, or about 1.3% of the total proceeds from the fraudulent
scheme.3
The Court ultimately concluded Mr. Artur Ayvazyan was
responsible for $1.5 million to $3.5 million of the schemes’ $21
million total intended losses but denied his request for a 3 point
downward adjustment for mitigating or minor role in the offense. 
U.S.S.G. § 3B1.2.
The sentencing guidelines provide that the mitigating role
adjustment will generally apply when a defendant is held
“accountable for a loss amount . . . that greatly exceeds the
defendant’s personal gain from a fraud offense or who had limited
knowledge of the scope of the scheme.”  U.S.S.G. § 3B1.2, App. Note
3(A).
Although the Court credited the Government’s theory that
Artur Ayvazyan knew “what was in the house” and “the scope of
the conspiracy,” R.T. 11/15/21, at 13, 14, those only go to establish
his criminal culpability, not his role in the offense.  Conversely,
however, the Court recognized that “his participation in this was
markedly different than Richard Ayvazyan and Tamara Dadyan.” 
R.T. 11/15/21, at 16.  In fact, his participation was markedly
different from everyone except Vahe Dadyan, who received the
proceeds of only one loan, instead of two.  There was no evidence
Artur Ayvazyan communicated with any of the co-defendants about
    
The Government also noted the existence of a $73,500 deposit
3.
but made no attempt to establish the source of the funds, let alone
that it was from Dadayan, Richard Ayvazyan, or funds traced in
any way to the federal goverment.
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the fraudulent scheme or conspiracy.  There was no evidence Mr.
Artur Ayvazyan had any check-printing devices, check-printing
software, or identification-creating devices or software.  R.T.
11/15/21, at 22.
Apart from the Court’s assumption that Artur Ayvazyan
knew the “scope and structure,” the Court failed to consider the
remaining factors that the Sentencing Commission required courts
to factor in when passing on the mitigating role adjustment
including:
(ii) the degree to which the defendant participated
in planning or organizing the criminal activity;
(iii) the degree to which the defendant exercised
decision-making authority or influenced the exercise of
decision-making authority;
(iv) the nature and extent of the defendant’s
participation in the commission of the criminal activity,
including the acts the defendant performed and the
responsibility and discretion the defendant had in
performing those acts;
(v) the degree to which the defendant stood to
benefit from the criminal activity.
U.S.S.G. § 3B1.2, App. Note 3(C).
There was no evidence Mr. Artur Ayvazyan participated in
planning or organizing.  Indeed, the Court acknowledged “he
wasn’t an architect.”  R.T. 11/15/21, at 26.  There was no evidence
he influenced, let alone exercised, decision-making authority. 
There was no evidence of his participation in the commission
besides authorizing Dadyan to apply for a loan (or perhaps two
loans) on his behalf.  As the Court also noted, Mr. Artur Ayvazyan’s
participation “may not have been critical.”  R.T. 11/15/21, at 26.
The Court’s finding that “he helped perpetrate the fraud” and
“he was involved” do not preclude the mitigating role adjustment. 
R.T. 11/15/21, at 26.  The Sentencing Commission has made clear
that even a defendant’s “essential or indispensable role in the
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criminal activity is not determinative.”  U.S.S.G. § 3B1.2, App.
Note 3(C).  The adjustment is available “if he is substantially less
culpable than the average participant.”  Id.  Here, with the possible
exception of Vahe Dadyan, the evidence suggests no one is less
culpable than Artur Ayvazyan.
Over a decade ago, the Sentencing Commission deleted any
commentary implying the downward adjustment should not be
regularly and frequently applied, observing that prior language
had “the unintended effect of discouraging courts from applying the
mitigating role adjustment in otherwise appropriate
circumstances.”  U.S.S.G. App. C, Amend. 755 (eff. Nov. 1, 2011).
The factors identified in App. Note 3(C) were added out of
concern that the mitigating role adjustment was not being applied
often enough.  U.S.S.G. App. C, Amend. 794.
The Ninth Circuit made clear several years ago that, “Going
forward, the assessment of a defendant’s eligibility for a minor-role
adjustment must include consideration of the factors identified by
the Amendment, not merely the benchmarks established by our
caselaw that pre-dates Amendment 794’s effective date.”  United
States v. Diaz, 884 F.3d 911, 916 (9th Cir. 2018).  The Court’s
failure to properly apply the mitigating role adjustment is likely to
result in a reversal for resentencing.  Diaz, 884 F.3d at 918.
D.
Failure to Address Defendant
After hearing argument from the attorneys, without
addressing Mr. Ayvazyan or inviting him to address the Court, the
Court imposed sentence.  R.T. 11/15/21, at 22-23.
Rule 32 commands that “before imposing sentence, the court
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must . . . address the defendant personally in order to permit the
defendant to speak or present any information to mitigate the
sentence.”  FED. R. CRIM. P. 32(i)(4)(A)(ii).
The Court’s failure to address Mr. Ayvazyan and failure to
invite him to allocute is reversible.  Green v. United States, 365
U.S. 301, 304 (1961).
CONCLUSION
Artur Ayvazyan poses no risk of flight or danger to the
community and anticipates being able to raise any of several non-
frivolous issues that, if sustained, would likely result in reversal. 
He should be allowed to be released on bail pending appeal.
DATED: December 29, 2021.
Respectfully submitted,
Law Offices of Tarik S. Adlai
      /s/ Tarik S. Adlai
TARIK S. ADLAI, Esq.
Attorney for Defendant 
Artur Ayvazyan
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DECLARATION OF TARIK S. ADLAI
I, Tarik S. Adlai, declare:
1.
I am an attorney, duly licensed and authorized to
practice law before all courts of the State of California and am a
member of the bar of this Court.  I am counsel for Artur Ayvazyan,
the defendant herein.  The facts contained in this declaration are
true based on the papers, pleadings, and records on file in this case,
are personally known to be to be true, or I am informed and believe
them to be true.  If called as a witness, I could and would
competently testify thereto. 
2.
The facts contained in the accompanying motion are
true.
3.
A true copy of the receipt for Mr. Ayvazyan’s payment of
his special assessments is attached hereto as Exhibit 1.
4.
On December 29, 2021, I contacted AUSA Catherine
Ahn who informed me that she will need to coordinate with other
members of the Government’s trial team, some of whom are on
vacation over the holidays and at least one of whom is preparing
for trial, before informing me of the Government’s position.
I declare under penalty of perjury that the foregoing is true
and that this declaration was executed this 29th day of December
2021, at Pasadena, California.
/s/ Tarik S. Adlai
TARIK S. ADLAI
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EXHIBIT 1
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#:19522

Case 2:20-cr-00579-SVW     Document 1226     Filed 12/29/21     Page 19 of 19   Page ID
#:19523

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