NOTICE OF MOTION AND MOTION to Vacate, Set Aside, or Correct Sentence by a Person… — USA v. Ayvazyan et al (Dkt. 1337)

Record facts

U.S. District Court for the Central District of California · No. 2:20-cr-00579-SVW · Doc. 1337 · 2022-12-08 · Docket on CourtListener

Full text

Carlo Brooks, CA Bar # 316485
3826 Grand View Boulevard, Suite 661472
Los Angeles, CA 90066
(310) 691-9373
carlo@carlobrooks.com
Attorney for Petitioner
RICHARD AYVAZYAN
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION
RICHARD AYVAZYAN,
Petitioner
vs.
UNITED STATES OF AMERICA,
Respondent.
)
)
)
)
)
)
)
)
)
)
Case No.: 2:22-cv-8915
[CR No. 2:20-cr-579-SVW]
MOTION TO VACATE, SET
ASIDE, OR CORRECT
SENTENCE UNDER 28 U.S.C. §
2255
Petitioner Richard Ayvazyan through undersigned counsel, hereby
respectfully moves this Court to vacate, set aside, or correct his sentence pursuant
to 28 U.S.C. § 2255.
DATED: December 8, 2022
Respectfully submitted,
/s/ Carlo Brooks  
CARLO BROOKS
Attorney for Petitioner
1
Case 2:20-cr-00579-SVW     Document 1337     Filed 12/08/22     Page 1 of 54   Page ID
#:20280

MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE
UNDER 28 U.S.C. § 2255
I.
INTRODUCTION
Petitioner Richard Ayvazyan, by and through his attorney, Carlo Brooks,
hereby submits his motion to vacate, set aside, or correct his sentence. The
government’s entire case against Mr. Ayvazyan rests on an intentional egregious
violation of petitioner’s Fourth, Fifth, and Sixth Amendment rights based on the
government’s sustained pattern of misconduct, including a pretextual border stop
and lies about the purpose of that stop, deprivation of the right to counsel,
destruction of evidence, lying about that misconduct, abusing the grand jury
process, disregarding Brady obligations, flagrantly violating court orders, and lying
to the Court, and, above all, building the lynchpin of its case and “star witness” at
trial out of undeniably tainted evidence.
II.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
The government’s case against Petitioner and the resulting judgment rest
entirely on the use of unconstitutionally obtained evidence.
Based on a suspicion of fraud committed by a certain Iuliia Zhadko and his
company, Timeline Transport, in a PPP loan application, the government’s sights
turned to Mr. Ayvazyan because Zhadko was one of several friends and associates
who transferred money to help make a down-payment on Mr. Ayvazyan’s home.
Based on Petitioner’s decade-old record involving a non-jail plea, the government
1
Case 2:20-cr-00579-SVW     Document 1337     Filed 12/08/22     Page 2 of 54   Page ID
#:20281

assumed that he too must be culpable; however, the government had zero direct
evidence that Mr. Ayvazyan was involved in Zhadko’s allegedly fraudulent
application.
In an effort to fill this critical gap in its investigation, the government began a
pattern of misconduct that plagued the case from the beginning till the end. The
government unlawfully stopped, interrogated, and searched Petitioner based on a
pretextual invocation of the border search authority and “National Security.” See
Dkt. 130, 135, 136. As case agent Justin Palmerton testified at the Miami bail
hearing, “once the CBP stopped for the secondary inspection, we learned that there
was a photograph of Iuliia Zhadko on the digital device and we made the
connection that Iuliia Zhadko was, in fact, an alias of Richard Ayvazyan.” Oct. 22,
2020 Hr’g Tr. at 23-24, United States v. Ayvazyan, 20-mj-3857, Dkt. 17 (S.D. Fla.
Oct. 22, 2020) (“Oct. 22 Tr.”).
The tainted evidence from the October 19, 2020 Miami airport stop became
the lynchpin of the government’s case against Mr. Ayvazyan. In effect, the fruit of
the pretextual Miami airport customs inspection ultimately found its way into
government trial exhibit ​GEX 10, which contained text messages in which
Petitioner and co-defendant Tamara Dadyan allegedly discussed the conspiracy.
Without that tainted evidence, the government would not have been able to obtain
the evidence seized at 17450 Weddington Street in Encino, California, the residence
2
Case 2:20-cr-00579-SVW     Document 1337     Filed 12/08/22     Page 3 of 54   Page ID
#:20282

of
Tamara
Dadyan
and
Artur
Ayvazyan,
two
of
Defendants’
accused
co-conspirators Weddington home, including Dadyan’s phone, which contained the
text messages. The Government used Mr. Ayvazyan’s tainted phone information to
obtain the search warrants on the Weddington residence.
In March 2021, Defendants moved to suppress all of the evidence from the
Miami airport on the basis that the Fourth Amendment prohibited the warrantless
detention and searches the government conducted by deputizing Customs and
Border Protection (CBP) officials to the investigation of suspected PPP loan fraud.
See Dkt. 130, Motion to Suppress Evidence From Pretextual Detention and
Warrantless Searches. Defendants also moved to suppress all of the evidence from
the Miami airport on the basis that the search of Defendants’ luggage and phones
violated the Fifth and Sixth Amendments. See Dkt. 135, Motion to Suppress
Evidence Collected in Violation of the Fifth and Sixth Amendments.
On April 27, 2021, the Court granted in part Petitioner’s Motion to Suppress
Evidence Collected in Violation of the Fifth and Sixth Amendments the motion in
part. As to the Fifth Amendment argument, the Court found a Miranda violation
and suppressed the evidence from Defendants’ phones. See Dkt. 296.
Notably, the Court found that Defendants’ disclosure of their phone passcodes
was not voluntary. Dkt. 296 at 17. The Court found several factors compelled this
result. Defendants were in custody without being given Miranda warnings.
3
Case 2:20-cr-00579-SVW     Document 1337     Filed 12/08/22     Page 4 of 54   Page ID
#:20283

Defendants had been detained for approximately four hours when they provided
their phone passcodes and, at that time, Defendants had been separated from one
another and individually interrogated. Id.
The Court found that, most importantly, each defendant was induced to
provide their phone passcode with false information. Id. Specifically, Mr. Ayvazyan
was told that he only needed to search the cell phone for “national security
purposes and just to confirm that [he] was not a terrorist.” See Dkt. 133, Ayvazyan
Decl. ¶ 24; see also id., Ex. 13 (transcript of video interrogation in which Ayvazyan
asks “What does credit cards have to do with national security that Ramirez is
talking about? What is it?”). Terabelian was told that agents needed to look at her
phone to see if Terabelian was a national security threat, and that Terabelian would
“be on the next flight” if she cooperated with agents. See Dkt. 133, Terabelian Decl.
¶ 12.
Under these circumstances, the Court found, the provision of passcodes by
Defendants to customs agents was not voluntary, and any evidence discovered on
Defendants’ smartphones at the Miami airport was ordered suppressed. Dkt. 296 at
18 (citing United States v. Thompson, 422 F.3d 1285, 1295–96 (11th Cir. 2005)
(“Sufficiently coercive conduct normally involves . . . the making of a promise that
induces a confession.”).
Yet while the Court granted Defendant’s Motion to suppress the physical
4
Case 2:20-cr-00579-SVW     Document 1337     Filed 12/08/22     Page 5 of 54   Page ID
#:20284

fruits of an alleged Miranda violation at the Miami airport, the Court rejected
Petitioner’s argument that because the applications for warrants to search
Defendants’ homes referenced the tainted evidence seized at the Miami airport, the
evidence seized during the search of Defendants’ home was the fruit of the
poisonous tree and should also be suppressed.1
In his Motion to Suppress Evidence Seized at the Miami Airport on Fourth
Amendment Grounds, Petitioner argued that the government’s entire case against
him was the fruit of a “disturbing emerging practice of law enforcement agencies
[directing] direct border officers to use their border search authority to investigate
alleged criminal conduct untethered from any border or national security concern.
The result is an “anything goes” free-for-all when hapless subjects of a domestic
criminal investigation happen to travel through an airport and are denied
fundamental rights.” Dkt. 130 at 1.
Petitioner argued that Ninth Circuit case law was controlling and that
precedent in United States v. Cano, 934 F.3d 1002, 1017 (9th Cir. 2019) expressly
forbade intrusive searches conducted for general law enforcement purposes, which
are distinguishable from the “routine searches” to “to prevent smuggling and to
prevent prohibited articles from entry, which are proper under the government’s
plenary border search authority. See U.S. Const. art. I, § 8, cl. 1. Indeed, Petitioner
1 Later, in its August 20, 2021 Order denying Defendants’ Kastigar Motion, the Court similarly concluded that the Weddington
and Canoga homes were not added as search warrant targets based on tainted information
5
Case 2:20-cr-00579-SVW     Document 1337     Filed 12/08/22     Page 6 of 54   Page ID
#:20285

argued, as set forth in Cano, “[w]arrants are generally required ‘unless the
exigencies of the situation make the needs of law enforcement so compelling that
the warrantless search is objectively reasonable under the Fourth Amendment.’”
Cano, 934 F.3d at 1010 (quoting Mincey v. Arizona, 437 U.S. 385, 393-94 (1978).
The Court agreed that the pretextual stop would have been unlawful if Ninth
Circuit law applied: “Indeed, under Ninth Circuit law, the search at issue falls
outside the scope of the border search exception. In the Ninth Circuit, ‘[a] border
search must be conducted to enforce importation laws, and not for general law
enforcement purposes.’ Dkt. 296 at 4 (quoting Cano, 934 F.3d at 1013). Therefore,
under Cano and general Fourth Amendment jurisprudence, to determine whether a
search was conducted for general law enforcement purposes, courts must conduct
an objective inquiry. Dkt. 296 at 5 (citing Cano, 934 F.3d at 1016 n.9).
However, based on the Eleventh Circuit location of the search, Miami, FL, the
Court found that Eleventh Circuit law applied, and the search was lawful, because
in the Eleventh Circuit, “border searches of property are reasonable without any
level of suspicion.” Dkt. 296 at 4 (quoting United States v. Touset, 890 F.3d 1227,
1232, 1237 (11th Cir. 2018)). United States v. Touset, 890 F.3d 1227 (11th Cir.
2018) involved the “importation of contraband” – specifically, child pornography
on two laptops and two external hard drives in the traveler’s possession. Id. at 1230.
The Court in Touset held that border agents needed no justification
6
Case 2:20-cr-00579-SVW     Document 1337     Filed 12/08/22     Page 7 of 54   Page ID
#:20286

whatsoever to detain (for seventeen days) and forensically search electronic devices
of an American citizen returning from abroad. Id. at 1237. As stated in the
concurring opinion, “This new-found government position presents a different and
difficult question, one not addressed by the Supreme Court or (until today) any
appellate court. Touset, 890 F.3d at 1238-39 (Corrigan, J., concurring in part).
Justice Corrigan therefore concurred only in the Court’s alternative holding that
“the district court correctly denied Touset’s motions to suppress because the
forensic searches of his electronic devices were supported by reasonable
suspicion.” Id.
What ensued was an essential “free for all” in which text messages featured at
trial (GEX 10) were selected using notes from the FBI or OIG Agent’s review of
Petitioner’s unconstitutionally seized phone. Under Kastigar, the government bears
the “heavy burden” of proving by a preponderance “that ‘all of the evidence it
proposes to use,’ and all of its trial strategy, were ‘derived from legitimate
independent sources.’” United States v. Danielson, 325 F.3d 1054, 1072 (9th Cir.
2003) (quoting Kastigar, 406 U.S. at 460). In addition to this prospective burden of
proof, the government must “demonstrate that ‘none of the evidence presented to
the grand jury is derived, directly or indirectly, from the immunized testimony[.]’”
United States v. Hampton, 775 F.2d 1479, 1489 (11th Cir. 1985).
The record abounds with documents, pleadings and testimony showing both
7
Case 2:20-cr-00579-SVW     Document 1337     Filed 12/08/22     Page 8 of 54   Page ID
#:20287

evidentiary and non-evidentiary uses by the government of the tainted information
– use which the government must disprove to survive Kastigar scrutiny.
As set forth herein, the record shows that at every stage of the litigation
following the Miami customs stop, the government used tainted information and
derivative tainted information in many respects, including but not limited to
interpreting evidence, focusing the investigation, developing pre-trial strategy, and
building its case. It used Petitioner’s unlawfully seized phone as an investigatory
lead and to uncover other evidence, to present evidence or testimony to the grand
jury, to refuse to plea bargain, to plan or adjust trial strategy such as case theory,
anticipating defenses, selecting exhibits – especially Exhibit 10 – making witness
decisions, or planning examinations.
Petitioner’s sentence was “imposed in violation of the Constitution or laws of
the United States,” and must be vacated and set aside.
III.
ARGUMENT
A. Fourth Amendment Violation: The credit cards offered as evidence
at trial were seized as part of a pretextual border search that
violated the Fourth Amendment as applied in Ninth Circuit law.
The court erroneously applied Eleventh Circuit law even though
(a) if it was one circuit’s law, it should be the Ninth Circuit because
that’s where the search was directed from; (b) the court
misinterpreted Eleventh Circuit law; (c) the law at issue should
have been the Fourth Amendment, not one circuit’s jurisprudence,
and suppression of all fruits of the unlawful search and seizure was
proper due as a matter of deterrence to the egregious violations of
Petitioner’s constitutional rights.
8
Case 2:20-cr-00579-SVW     Document 1337     Filed 12/08/22     Page 9 of 54   Page ID
#:20288

The government’s case against Petitioner and the resulting judgment rest
entirely on the use of unconstitutionally obtained evidence.
Based on a suspicion of fraud committed by a certain Iuliia Zhadko and his
company, Timeline Transport, in a PPP loan application, the government’s sights
turned to Mr. Ayvazyan because Zhadko was one of several friends and associates
who transferred money to help make a down-payment on Mr. Ayvazyan’s home.
Based on Petitioner’s decade-old record involving a non-jail plea, the government
assumed that he too must be culpable; however, the government had zero direct
evidence that Mr. Ayvazyan was involved in Zhadko’s allegedly fraudulent
application.
In an effort to fill this critical gap in its investigation, the government began a
pattern of misconduct that plagued the case from the beginning till the end. The
government unlawfully stopped, interrogated, and searched Petitioner based on a
pretextual invocation of the border search authority and “National Security.” See
Dkt. 130, 135, 136. As case agent Justin Palmerton testified at the Miami bail
hearing, “once the CBP stopped for the secondary inspection, we learned that there
was a photograph of Iuliia Zhadko on the digital device and we made the
connection that Iuliia Zhadko was, in fact, an alias of Richard Ayvazyan.” Oct. 22,
2020 Hr’g Tr. at 23-24, United States v. Ayvazyan, 20-mj-3857, Dkt. 17 (S.D. Fla.
Oct. 22, 2020) (“Oct. 22 Tr.”).
9
Case 2:20-cr-00579-SVW     Document 1337     Filed 12/08/22     Page 10 of 54   Page ID
#:20289

The tainted evidence from the October 19, 2020 Miami airport stop became
the lynchpin of the government’s case against Mr. Ayvazyan. In effect, the fruit of
the pretextual Miami airport customs inspection ultimately found its way into
government trial exhibit ​GEX 10, which contained text messages in which
Petitioner and co-defendant Tamara Dadyan allegedly discussed the conspiracy.
Without that tainted evidence, the government would not have been able to obtain
the evidence seized at the Weddington Street residence in Encino, California, the
residence of Tamara Dadyan and Artur Ayvazyan, two of Defendants’ accused
co-conspirators Weddington home, including Dadyan’s phone, which contained the
text messages. The Government used Mr. Ayvazyan’s tainted phone information to
obtain the search warrants on the Weddington residence.
In March 2021, Defendants moved to suppress all of the evidence from the
Miami airport on the basis that the Fourth Amendment prohibited the warrantless
detention and searches the government conducted by deputizing Customs and
Border Protection (CBP) officials to the investigation of suspected PPP loan fraud.
See Dkt. 130, Motion to Suppress Evidence From Pretextual Detention and
Warrantless Searches. Defendants also moved to suppress all of the evidence from
the Miami airport on the basis that the search of Defendants’ luggage and phones
violated the Fifth and Sixth Amendments. See Dkt. 135, Motion to Suppress
Evidence Collected in Violation of the Fifth and Sixth Amendments.
10
Case 2:20-cr-00579-SVW     Document 1337     Filed 12/08/22     Page 11 of 54   Page ID
#:20290

On April 27, 2021, the Court granted in part Petitioner’s Motion to Suppress
Evidence Collected in Violation of the Fifth and Sixth Amendments the motion in
part. As to the Fifth Amendment argument, the Court found a Miranda violation
and suppressed the evidence from Defendants’ phones. See Dkt. 296.
Notably, the Court found that Defendants’ disclosure of their phone passcodes
was not voluntary. Dkt. 296 at 17. The Court found several factors compelled this
result. Defendants were in custody without being given Miranda warnings.
Defendants had been detained for approximately four hours when they provided
their phone passcodes and, at that time, Defendants had been separated from one
another and individually interrogated. Id.
The Court found that, most importantly, each defendant was induced to
provide their phone passcode with false information. Id. Specifically, Mr. Ayvazyan
was told that he only needed to search the cell phone for “national security
purposes and just to confirm that [he] was not a terrorist.” See Dkt. 133, Ayvazyan
Decl. ¶ 24; see also id., Ex. 13 (transcript of video interrogation in which Ayvazyan
asks “What does credit cards have to do with national security that Ramirez is
talking about? What is it?”). Terabelian was told that agents needed to look at her
phone to see if Terabelian was a national security threat, and that Terabelian would
“be on the next flight” if she cooperated with agents. See Dkt. 133, Terabelian Decl.
¶ 12.
11
Case 2:20-cr-00579-SVW     Document 1337     Filed 12/08/22     Page 12 of 54   Page ID
#:20291

Under these circumstances, the Court found, the provision of passcodes by
Defendants to customs agents was not voluntary, and any evidence discovered on
Defendants’ smartphones at the Miami airport was ordered suppressed. Dkt. 296 at
18 (citing United States v. Thompson, 422 F.3d 1285, 1295–96 (11th Cir. 2005)
(“Sufficiently coercive conduct normally involves . . . the making of a promise that
induces a confession.”).
Yet while the Court granted Defendant’s Motion to suppress the physical
fruits of the Miranda violation at the Miami airport, the Court rejected Petitioner’s
argument that because the applications for warrants to search Defendants’ homes
referenced the tainted evidence seized at the Miami airport, the evidence seized
during the search of Defendants’ home was the fruit of the poisonous tree and
should also be suppressed.
In his Motion to Suppress Evidence Seized at the Miami Airport on Fourth
Amendment Grounds, Petitioner argued that the government’s entire case against
him was the fruit of a “disturbing emerging practice of law enforcement agencies
[directing] direct border officers to use their border search authority to investigate
alleged criminal conduct untethered from any border or national security concern.
The result is an “anything goes” free-for-all when hapless subjects of a domestic
criminal investigation happen to travel through an airport and are denied
fundamental rights.” Dkt. 130 at 1.
12
Case 2:20-cr-00579-SVW     Document 1337     Filed 12/08/22     Page 13 of 54   Page ID
#:20292

Petitioner argued that Ninth Circuit case law was controlling and that
precedent in United States v. Cano, 934 F.3d 1002, 1017 (9th Cir. 2019) expressly
forbade intrusive searches conducted for general law enforcement purposes, which
are distinguishable from the “routine searches” to “to prevent smuggling and to
prevent prohibited articles from entry, which are proper under the government’s
plenary border search authority. See U.S. Const. art. I, § 8, cl. 1.
The Court denied Defendants’ Motion to Suppress on Fourth Amendment
grounds, chastising Petitioner for limiting its argument that the Miami airport
search was not permissible under Eleventh Circuit to “a single footnote.” Dkt. 296
at 6. The Court countered that “[n]owhere in Touset did the Eleventh Circuit limit
its holding to searches of electronic devices for child pornography.” Id. The Court
then leaped to a second, crucial, conclusion based on its reading of the second
portion of the Touset opinion, stating that in finding the record supported a finding
of reasonable suspicion, the court in Touset “did not apply the standard Defendants
suggest” and “analyze whether agents had reasonable suspicion of contraband” but
rather applied a “broader” standard enunciated by the Eleventh Circuit in Denson v.
United States, 574 F.3d 1318, 1339 (11th Cir. 2009): that reasonable suspicion must
be based upon a “particularized and objective basis for suspecting the particular
person of criminal activity.” Dkt. 296 at 7 (adding emphasis).
The Court’s misreading of Eleventh Circuit case law for the proposition that
13
Case 2:20-cr-00579-SVW     Document 1337     Filed 12/08/22     Page 14 of 54   Page ID
#:20293

CBP’s search and seizure authority extends warrantless border searches based on
suspicion of general criminal activity was pivotal in this case. Critically, the Court’s
interpretation of Eleventh Circuit case law allowed it to dismiss any notion that
Ninth Circuit or (analogous jurisprudence) might apply, and thereby find that the
forum agents’ reliance “on the law of the situs” was reasonable when directing the
out-of-circuit search, Dkt. 296 at 12, and that “all agents involved fully complied
with Eleventh Circuit law.” Id. at 12-13. This, in turn, caused the Court to find
Petitioner’s arguments undermined by the Supreme Court’s discussion in Davis v.
United States, 564 U.S. 229 (2011) regarding the circumstances warranting
deterrence. See Davis, 564 U.S. at 241 (“An officer who conducts a search in
reliance on binding appellate precedent does no more than ac[t] as a reasonable
officer would and should act under the circumstances.”) Thus, concluded the Court,
“Applying those principles to the unique circumstances before the Court, deterrence
is not warranted merely because the Miami airport search violated Ninth Circuit
law.” Dkt. 296 at 12.
The Court noted that under Davis, deterrence would only be warranted if
forum agents from directing out-of-circuit searches that comply with the law of the
situs of the search “exhibited deliberate, reckless, or grossly negligent disregard for
Fourth Amendment rights.” Dkt. 296 at 13 (citing Davis, 564 U.S. at 238). The
Court noted that nothing suggested Agent Palmerton “controlled the location of the
14
Case 2:20-cr-00579-SVW     Document 1337     Filed 12/08/22     Page 15 of 54   Page ID
#:20294

border search.” Id. “In sum,” the Court concluded, “there is no ‘forum shopping’ to
deter here because no forum shopping occurred.” Id. at 14. Persuaded that the
government’s untested interpretation of Eleventh Circuit law controlled the case,
the Court concluded that “Eleventh Circuit law requires the denial of Defendants’
motion to suppress” on Fourth Amendment grounds. Id.
Petitioner argued that Ninth Circuit precedent in United States v. Cano, 934
F.3d 1002, 1017 (9th Cir. 2019) expressly forbade intrusive searches conducted for
general law enforcement purposes, which are distinguishable from the “routine
searches” to “to prevent smuggling and to prevent prohibited articles from entry,
which are proper under the government’s plenary border search authority. See U.S.
Const. art. I, § 8, cl. 1. Indeed, Petitioner argued, as set forth in Cano, “[w]arrants
are generally required ‘unless the exigencies of the situation make the needs of law
enforcement so compelling that the warrantless search is objectively reasonable
under the Fourth Amendment.’” Cano, 934 F.3d at 1010 (quoting Mincey v.
Arizona, 437 U.S. 385, 393-94 (1978).
The Court agreed that the pretextual stop would have been unlawful if Ninth
Circuit law applied: “Indeed, under Ninth Circuit law, the search at issue falls
outside the scope of the border search exception. In the Ninth Circuit, ‘[a] border
search must be conducted to enforce importation laws, and not for general law
enforcement purposes.’ Dkt. 296 at 4 (quoting Cano, 934 F.3d at 1013). Therefore,
15
Case 2:20-cr-00579-SVW     Document 1337     Filed 12/08/22     Page 16 of 54   Page ID
#:20295

under Cano and general Fourth Amendment jurisprudence, to determine whether a
search was conducted for general law enforcement purposes, courts must conduct
an objective inquiry. Dkt. 296 at 5 (citing Cano, 934 F.3d at 1016 n.9).
However, based on the Eleventh Circuit location of the search, Miami, FL, the
Court found that Eleventh Circuit law applied, and the search was lawful, because
in the Eleventh Circuit, “border searches of property are reasonable without any
level of suspicion.” Dkt. 296 at 4 (quoting United States v. Touset, 890 F.3d 1227,
1232, 1237 (11th Cir. 2018)). United States v. Touset, 890 F.3d 1227 (11th Cir.
2018) involved the “importation of contraband” – specifically, child pornography
on two laptops and two external hard drives in the traveler’s possession. Id. at 1230.
The Court in Touset held that border agents needed no justification
whatsoever to detain (for seventeen days) and forensically search electronic devices
of an American citizen returning from abroad. Id. at 1237. As stated in the
concurring opinion, “This new-found government position presents a different and
difficult question, one not addressed by the Supreme Court or (until today) any
appellate court. Touset, 890 F.3d at 1238-39 (Corrigan, J., concurring in part).
Justice Corrigan therefore concurred only in the Court’s alternative holding that
“the district court correctly denied Touset’s motions to suppress because the
forensic searches of his electronic devices were supported by reasonable
suspicion.” Id.
16
Case 2:20-cr-00579-SVW     Document 1337     Filed 12/08/22     Page 17 of 54   Page ID
#:20296

Touset’s holding that border searches of property are reasonable without any
level of suspicion is anchored in Congress’ broad powers under the Commerce
Clause “to prevent smuggling and to prevent prohibited articles from entry.” Touset,
890 F.3d at 1229. “[B]ecause child pornography is unprotected by the First
Amendment, the Court reasoned, “Congress may declare it contraband and prohibit
its importation.” Id. at 1232 (citing United States v. Thirty-Seven Photographs, 402
U.S. 363, 376-77 (1971); accord United States v. 12 200-Ft. Reels of Super 8MM.
Film, 413 U.S. 123, 128-29 (1973). Therefore, CBP’s 17-day detention and forensic
search of the defendant’s two laptops and two external hard drives to prevent the
“importation of contraband” – child pornography in the traveler’s possession –, the
Court reasoned, did not require reasonable suspicion because such search and
seizure was proper under the government’s plenary border search authority.
In his reply brief in Support of Motions To Suppress Evidence From
Pretextual Detention and Warrantless Searches [Dkt. 208], Petitioner cited
well-settled authorities and case law delimiting the nature of CBP’s police power.
As Petitioner stated, “CBP has statutory authority to conduct border searches to
‘interdict[] persons attempting to illegally enter or exit the United States or goods
being illegally imported into or exported from the United States at a place other
than a designated port of entry” and to “deter and prevent the illegal entry of
terrorists, terrorist weapons, persons, and contraband.’” Dkt. 208 at 8-9 (quoting 6
17
Case 2:20-cr-00579-SVW     Document 1337     Filed 12/08/22     Page 18 of 54   Page ID
#:20297

U.S.C. § 211(e)(3)(A)-(B)).
In its Opposition to Petitioner’s Motion [Dkt. 152], the government
characterized items seized from the defendants’ phones, such as a photograph of a
fake driver’s license, as “counterfeit access devices and identification documents,”
which it argued were a “form of digital contraband,” subject to seizure like the
pornographic images in Touset. Dkt. 152 at 9, 17. In his Reply, Petitioner made
clear that no law declares third parties’ “access devices” to be contraband and
prohibits their importation:
To the contrary, the definition of contraband that cannot
be transported, concealed, or possessed on an aircraft
includes drugs, weapons, counterfeit money, certain
cigarettes, counterfeit versions of certain copyrighted
materials, and goods bearing a counterfeit mark as
defined
under
18
U.S.C.
§
2320.
49
U.S.C.
§
80302(a)-(b); accord 19 U.S.C. § 4301 (adopting that
definition and adding other goods whose importation is
prohibited by the Tariff Act of 1930, i.e., the Act
prohibiting importation of child pornography but not
photographs of allegedly fake identification documents).
Not one of the “AUTHORITY/REFERENCES” cited in
the CBP memorandum provided by the government (Dkt.
152 Ex. 4 ¶ 4) references authority to interdict third
parties’ access devices. Indeed, Counsel has been unable
to find a single case, statute, or regulation that would take
the step the government requests here and define CBP’s
authority
to
search
for
“contraband”
as
including
authority to search for third parties’ access devices.
Dkt. 208 at 9-10.
Based on the foregoing, Petitioner argued that whether or not a reasonable
search for contraband would have been permissible, this was neither a search for
18
Case 2:20-cr-00579-SVW     Document 1337     Filed 12/08/22     Page 19 of 54   Page ID
#:20298

contraband nor a reasonable search and was “therefore unconstitutional under the
Fourth Amendment regardless of which circuit’s law applied.” Dkt. 208 at 15-16
n.19. Petitioner distinguished Touset as a case permitting searching for actual
digital contraband – child pornography – “rather than evidence of an intent-based
crime.” Id. (citing Touset, 890 F.3d at 1236; see Cano, 934 at 1015 n.8
(distinguishing Touset on this ground)).
In denying Defendants’ Motion to Suppress on Fourth Amendment grounds,
the Court chastised Petitioner for limiting its argument that the Miami airport
search was not permissible under Eleventh Circuit to “a single footnote.” Dkt. 296
at 6. The Court countered that “[n]owhere in Touset did the Eleventh Circuit limit
its holding to searches of electronic devices for child pornography.” Id. The Court
then leaped to a second, crucial, conclusion based on its reading of the second
portion of the Touset opinion, stating that in finding the record supported a finding
of reasonable suspicion, the court in Touset “did not apply the standard Defendants
suggest” and “analyze whether agents had reasonable suspicion of contraband” but
rather applied a “broader” standard enunciated by the Eleventh Circuit in Denson v.
United States, 574 F.3d 1318, 1339 (11th Cir. 2009): that reasonable suspicion must
be based upon a “particularized and objective basis for suspecting the particular
person of criminal activity.” Dkt. 296 at 7 (adding emphasis).
In emphasizing and seizing on the phrase “criminal activity,” the Court
19
Case 2:20-cr-00579-SVW     Document 1337     Filed 12/08/22     Page 20 of 54   Page ID
#:20299

completely lost sight of the contours of CBP’s statutory authority, which does not
permit it to conduct warrantless border searches based on reasonable suspicion of
general “criminal activity.” As Petitioner had taken pains to make clear in his
Motion and Reply, a border search must be conducted to enforce importation laws,
and not for general law enforcement purposes. See Dkt. 208 at 8-9 (quoting 6
U.S.C. § 211(e)(3)(A)-(B)) (CBP has statutory authority to conduct border searches
to “interdict[] persons attempting to illegally enter or exit the United States or
goods being illegally imported into or exported from the United States at a place
other than a designated port of entry” and to “deter and prevent the illegal entry of
terrorists, terrorist weapons, persons, and contraband.”).
Nothing in Touset or
Denson violate this bedrock principle because both
cases and the progeny they rely on involve searches for importation of contraband
– a circumstance not present in Petitioner’s case. Denson cannot stand for an
expansion of the contours of CBP’s search and seizure authority to warrantless
border searches based on suspicion of general criminal activity. Denson arose when
the defendant claimed customs agents violated her rights under the U.S.
Constitution and Florida tort law by searching her at the Miami airport after she
arrived aboard a flight from Jamaica “on the purported suspicion that she was
attempting to smuggle narcotics into the United States inside her alimentary canal.”
Denson, 574 F.3d at 1323. As expressly stated in Denson, cases like Denson and
20
Case 2:20-cr-00579-SVW     Document 1337     Filed 12/08/22     Page 21 of 54   Page ID
#:20300

Touset involve searches for the interception of contraband, not intrusive searches
conducted for general law enforcement purposes:
Reasonable suspicion requires more than mere fanciful
conjecture; it must be based upon a “particularized and
objective basis for suspecting the particular person . . . of
criminal activity.” United States v. Cortez, 449 U.S. 411,
417-18, 101 S. Ct. 690, 695, 66 L. Ed. 2d 621 (1981).
Although this standard imposes limits on a Customs
official’s discretion after an individual has crossed the
border, it relaxes the normal warrant requirement of
probable cause in recognition of the “many difficulties
that attend the attempt[s] to intercept contraband and to
apprehend
increasingly
mobile
and
sophisticated
smugglers.” United States v. Bilir, 592 F.2d 735, 739-40
(4th Cir. 1979)
Denson, 574 F.3d at 1341 (emphasis added).
The Court’s misreading of Eleventh Circuit case law for the proposition that
CBP’s search and seizure authority extends warrantless border searches based on
suspicion of general criminal activity was pivotal in this case. Critically, the Court’s
interpretation of Eleventh Circuit case law allowed it to dismiss any notion that
Ninth Circuit or (analogous jurisprudence) might apply, and thereby find that the
forum agents’ reliance “on the law of the situs” was reasonable when directing the
out-of-circuit search, Dkt. 296 at 12, and that “all agents involved fully complied
with Eleventh Circuit law.” Id. at 12-13. This, in turn, caused the Court to find
Petitioner’s arguments undermined by the Supreme Court’s discussion in Davis v.
United States, 564 U.S. 229 (2011) regarding the circumstances warranting
21
Case 2:20-cr-00579-SVW     Document 1337     Filed 12/08/22     Page 22 of 54   Page ID
#:20301

deterrence. See Davis, 564 U.S. at 241 (“An officer who conducts a search in
reliance on binding appellate precedent does no more than ac[t] as a reasonable
officer would and should act under the circumstances.”) Thus, concluded the Court,
“Applying those principles to the unique circumstances before the Court, deterrence
is not warranted merely because the Miami airport search violated Ninth Circuit
law.” Dkt. 296 at 12.
The Court noted that under Davis, deterrence would only be warranted if
forum agents from directing out-of-circuit searches that comply with the law of the
situs of the search “exhibited deliberate, reckless, or grossly negligent disregard for
Fourth Amendment rights.” Dkt. 296 at 13 (citing Davis, 564 U.S. at 238). The
Court noted that nothing suggested Agent Palmerton “controlled the location of the
border search.” Id. “In sum,” the Court concluded, “there is no ‘forum shopping’ to
deter here because no forum shopping occurred.” Id. at 14. Persuaded that the
government’s untested interpretation of Eleventh Circuit law controlled the case,
the Court concluded that “Eleventh Circuit law requires the denial of Defendants’
motion to suppress” on Fourth Amendment grounds. Id.
Yet The Court failed to consider CBP agents’ violation of their own
regulations and policies, which apply regardless of the “situs of the search”
It is undisputed based on the above-described CBP and FBI conduct that
deterrence and suppression of all unconstitutionally obtained evidence, including
22
Case 2:20-cr-00579-SVW     Document 1337     Filed 12/08/22     Page 23 of 54   Page ID
#:20302

evidence that was utilized to obtain the search warrants, was warranted. It is true
that to trigger the exclusionary rule, police conduct must be sufficiently deliberate
that exclusion can meaningfully deter it. The police conduct here was sufficiently
deliberate under any circuit law.” CBP agents deliberately fabricated a “national
security concern” as a pretext for the search and the search was not for “importation
of contraband,” but for aiding the FBI in investigating the alleged PPP loan fraud.
The Court limited its inquiry to whether forum agents directing out-of-circuit
searches complied with “the law of the situs of the search.” As set forth above, they
did not. Yet the Court failed to consider CBP agents’ violation of their own
regulations and policies, which apply regardless of the “situs of the search”
There exists a line of venerable Ninth Circuit case law holding that egregious
Fourth Amendment violations warrant the application of the exclusionary rule in
civil proceedings, such as CBP border inspections. See Gonzalez-Rivera v. INS, 22
F.3d 1441, 1448 (9th Cir. 1994); Sanchez v. Sessions, 904 F.3d 643 (9th Cir. 2017)
(evidence obtained in an unlawful manner will be excluded from civil proceedings
(1) “when the agency violates a regulation promulgated for the benefit of
petitioners and that violation prejudices the petitioner’s protected interests” and (2)
“when the agency egregiously violates a petitioner’s Fourth Amendment rights.”)
Part 162 of Chapter I of Title 19 of the Code of Federal Regulations Customs sets
forth the rules which regulate U.S. Customs and Border Protection’s Inspection,
23
Case 2:20-cr-00579-SVW     Document 1337     Filed 12/08/22     Page 24 of 54   Page ID
#:20303

Search, and Seizure powers. 19 CFR § 162.21 of Subpart C, “Seizures,” provides
that “Property may be seized, if available, by any Customs officer who has
reasonable cause to believe that any law or regulation enforced by Customs and
Border Protection or Immigration and Customs Enforcement has been violated, by
reason of which the property has become subject to seizure or forfeiture.” 19 C.F.R.
§ 162.21 (Lexis Advance through the Nov. 30, 2022 issue of the Federal Register,
with the exception of the amendments appearing at 87 FR 71748, 87 FR 73400, 87
FR 73433, and 87 FR 73488).
Here, Mr. Ayvazyan’s interest in being free from pretextual searches and
seizures clearly fall within the purposes of 19 C.F.R. § 162.21. CBP admittedly did
not have “reasonable cause” to believe that any law or regulation enforced by
Customs and Border Protection or Immigration and Customs Enforcement had been
violated. There was no “reasonable cause” to believe Petitioner was attempting to
import contraband. CBP officers falsified their reports by stating that the search and
detention occurred “for purposes of national security.” CBP conducted a series of
searches of private smartphones over the course of almost four hours, lied about the
purpose of their search, violated CBP policy by executing the search without the
travelers present, and clearly violated 19 C.F.R. § 162.21. Bad faith constitutional
violations are per se egregious. See Gonzalez-Rivera v. INS, 22 F.3d 1441, 1449 n.5
(9th Cir. 1994) (“Federal courts cannot countenance deliberate violations of basic
24
Case 2:20-cr-00579-SVW     Document 1337     Filed 12/08/22     Page 25 of 54   Page ID
#:20304

constitutional rights. To do so would violate our judicial oath to uphold the
Constitution of the United States.”); Adamson v. C.I.R., 745 F.2d 541, 546 (9th Cir.
1984). Because the pretext search and seizure by CBP agents was an egregious
constitutional violation and per se violation of 19 C.F.R. § 162.21, the violation
required suppression of the evidence obtained, regardless of whether the FBI agents
directing the out-of-circuit search complied with Ninth Circuit, Eleventh Circuit, or
any circuit case law.
Thus, despite egregious violations of the Fourth Amendment and the agency’s
own regulations, the Court found the government to be free of misconduct and
therefore deterrence completely unwarranted. Yet Petitioner was severely
prejudiced and irreparably harmed by the government’s conduct. As such,
Petitioner’s sentence was imposed in violation of the Constitution or laws of the
United States, and must be set aside.
B. The government obtained an extension of the search warrant – that
ultimately provided the key evidence at trial – on an ex parte basis
without statutory authority for doing so. The government – despite
already telling the defense that it was reviewing the phones to seek
a superseding indictment – lodged as its only reason for proceeding
ex parte that it could not disclose that information to the defense.
25
Case 2:20-cr-00579-SVW     Document 1337     Filed 12/08/22     Page 26 of 54   Page ID
#:20305

In his April 21, 2021 Motion to Dismiss for Prosecutorial Misconduct,
Petitioner provided a chart Section II.C describing the many examples of how the
government abused the grand jury process to continue gathering evidence regarding
the entities and people in the initial indictment. The government’s misconduct also
extended to failing to disclose to the Court that it planned all along to supersede on
the same conspiracy charged in November as a way of evading its Speedy Trial and
Discovery Order obligations.
In October and November 2020, the government filed both a complaint and
indictment alleging probable cause to believe that many of the loans and entities in
the superseding indictment were part of the same conspiracy as the original
indictment. For example, in the October 20, 2020 complaint, the government
alleged probable cause to believe that Edward Paronyan submitted the allegedly
fraudulent Redline Auto Collision loan application in the indictment. Compare
Compl. ¶¶ 26.c-.e (Dkt. 152 Ex. 11 at 68), with Superseding Ind. Overt Acts 29-31
(Dkt. 154 at 18). Similarly, the November 3, 2020 search warrant application
alleged that Ayvazyan and Terabelian had “stolen” the identity of N.T. and used that
identity to apply for disaster loans, i.e., Counts Eleven and Twenty-Two in the
superseding indictment, but it held those allegations back for four more months.
Compare Search Warrant App. ¶¶ 33.k, 62.d (Dkt. 152 Ex. 11 at 31, 44-45), with
Superseding Ind. ¶¶ 37, 44-45 (Dkt. 154 at 29-30, 36). But the government held
these allegations and others back from the indictment, and instead succeeded in
26
Case 2:20-cr-00579-SVW     Document 1337     Filed 12/08/22     Page 27 of 54   Page ID
#:20306

using a superseding indictment to extend its evidence gathering process without
being bound by the limitations in Fed. R. Crim. P. 16 and 17.
The Court made clear that the government could not leverage COVID-19 as
an opportunity to build out its case, but that is precisely what the government did.
From the moment Ayvazyan invoked his speedy trial rights, the government
appears to have intentionally manipulated the grand jury process to lengthen the
time during which it could build a case against Ayvazyan without disclosing tainted
information to the defense. As described in Petitioner’s April 21, 2021 Motion to
Enforce the December 22, 2020 Discovery Order, the government violated the
Court’s discovery order and continued producing documents after the Court’s
March 15 deadline. Dkt. 248.
The government attempted to excuse its blatant violations of the Discovery
Order by misrepresenting what it was producing, claiming that the documents
related to the superseding indictment. The government’s excuses fall flat for three
reasons. First, as reflected in the Chart in Ayvazyan’s Reply in Support of his
Motion to Enforce the Court’s December 22, 2020 Discovery Order (Dkt. 287 at
6-8), many of the late productions relate to the entities and loans in the initial
indictment. Second, nothing in the Court’s Discovery Order contemplated an
extension of the order should the government file a superseding indictment. The
March 15 discovery deadline did not contain an exception where the prosecutors –
who had already alleged a conspiracy involving others known to the government –
27
Case 2:20-cr-00579-SVW     Document 1337     Filed 12/08/22     Page 28 of 54   Page ID
#:20307

could evade their obligations by seeking another indictment of the same
conspiracy. Third, even if the late-produced documents only concerned the new
conduct alleged in the superseding indictment (which they did not), all of the
documents produced to date relate to one conspiracy – the one charged in the
November indictment. Indeed, the pre-March 12 indictment discovery included
documents related to every one of the new defendants and new allegations that
were allegedly part of the same overarching conspiracy. The government’s dumping
of data related to this alleged overarching conspiracy and continued production
after the close of discovery violated the Court’s Discovery Order and operated as an
extension of the search warrant that ultimately provided the key evidence at trial.
C. In Violation of Petitioner’s Fourth and Fifth Amendment rights,
the text messages featured at trial (GEX 10) were selected using
notes from the FBI or OIG Agent’s review of an unconstitutionally
seized phone.
At a Kastigar hearing, the government bears the “heavy burden” of proving
by a preponderance “that ‘all of the evidence it proposes to use,’ and all of its trial
strategy, were ‘derived from legitimate independent sources.’” United States v.
Danielson, 325 F.3d 1054, 1072 (9th Cir. 2003) (quoting Kastigar, 406 U.S. at
460). In addition to this prospective burden of proof, the government must
“demonstrate that ‘none of the evidence presented to the grand jury is derived,
directly or indirectly, from the immunized testimony[.]’” United States v. Hampton,
28
Case 2:20-cr-00579-SVW     Document 1337     Filed 12/08/22     Page 29 of 54   Page ID
#:20308

775 F.2d 1479, 1489 (11th Cir. 1985). “The particular proof that will satisfy the
government’s ‘heavy burden,’ ... [varies] from case to case....” Danielson, 325 F.3d
at 1072. But “the mere assertion by the government of ‘the integrity and good faith
of the prosecuting authorities’ is not enough. ... Rather, the government must
present evidence” to carry its burden. Id.; see United States v. Mapelli, 971 F.2d
284, 288 (9th Cir. 1992).
The
onus
is
on
the
government
to
disprove
both evidentiary and
non-evidentiary uses of the tainted information. The government must prove that it
did not use the tainted information or any derivative information in any respect,
including but not limited to: To interpret evidence, focus the investigation, develop
pre-trial strategy, or to build a case; As an investigatory lead or to uncover other
evidence; To identify, prepare, refresh, or in any way impact the statement of a
witness; To decide to initiate prosecution; To present evidence or testimony to the
grand jury; To refuse to plea bargain; To plan or adjust trial strategy such as case
theory, anticipating defenses, selecting exhibits, making witness decisions, or
planning examinations. See, e.g., Kastigar, 406 U.S. at 460; Dudden, 65 F.3d at
1467; Hsia, 131 F. Supp. 2d at 202. See, e.g., United States v. North, 910 F.2d 843,
860-63, on pet. for reh’g, 920 F.2d 940 (D.C. Cir. 1990); Hampton, 775 F.2d at
1488; see also United States v. Allen, 864 F.3d 63, 93 (2d Cir. 2017). See, e.g.,
Danielson, 325 F.3d at 1072; Dudden, 65 F.3d at 1467. United States v. Zielzinsky,
740 F.2d 727, 733 (9th Cir. 1984); Hampton, 775 F.2d at 1485 (11th Cir. 1985). See,
29
Case 2:20-cr-00579-SVW     Document 1337     Filed 12/08/22     Page 30 of 54   Page ID
#:20309

e.g., Danielson, 325 F.3d at 1072; Hsia, 131 F. Supp. 2d at 202. See, e.g.,
Danielson, 325 F.3d at 1072; Mapelli, 971 F.2d at 287; Dudden, 65 F.3d at 1467;
Benson, 2016 WL 215233, at *4.
In short, the government must prove that there was no “link in the chain”
involving tainted evidence and that Ayvazyan and Terabelian will be left “in
substantially the same position” as if their Fifth Amendment rights had never been
violated. See Kastigar, 406 U.S. at 462.
On April 27, 2021, the Court granted in part Petitioner’s Motion to Suppress
Evidence Collected in Violation of the Fifth and Sixth Amendments the motion in
part. As to the Fifth Amendment argument, the Court found a Miranda violation
and suppressed the evidence from Defendants’ phones. See Dkt. 296. Yet while the
Court granted Defendant’s Motion to suppress the physical fruits of the Miranda
violation at the Miami airport, the Court rejected Petitioner’s argument that because
the applications for warrants to search Defendants’ homes referenced the tainted
evidence seized at the Miami airport, the evidence seized during the search of
Defendants’ home was the fruit of the poisonous tree and should also be
suppressed.2
Later, despite the evidence adduced in Defendants’ May 17, 2021 Motion For
A Kastigar Hearing, To Disqualify The Prosecution Team, And To Dismiss [Dkt.
338] and the July 28, 2021 and July 29, 2021 hearings thereon [Dkt. 820, 821; 813,
2 Later, in its August 20, 2021 Order denying Defendants’ Kastigar Motion, the Court similarly concluded that the Weddington
and Canoga homes were not added as search warrant targets based on tainted information
30
Case 2:20-cr-00579-SVW     Document 1337     Filed 12/08/22     Page 31 of 54   Page ID
#:20310

814 (hearing transcripts)], the Court found that messages featured at trial (GEX 10)
and which were selected using notes from the FBI or OIG Agent’s review of
Petitioner’s unconstitutionally seized phone passed muster under Kastigar’s strict
standards. Petitioner demonstrated irrefutable “links in the chain” involving tainted
evidence – specifically, the use of his unconstitutionally seized phone – to what
came to be known as the government’s “star witness” in the case and trial:
Government Exhibit 10 (“GEX 10”), Dkt. 113 (transcript of July 28, 2021 Kastigar
hearing) at 196.
As case agent Justin Palmerton testified at the Miami bail hearing, “once the
CBP stopped for the secondary inspection, we learned that there was a photograph
of Iuliia Zhadko on the digital device and we made the connection that Iuliia
Zhadko was, in fact, an alias of Richard Ayvazyan.” Oct. 22, 2020 Hr’g Tr. at
23-24, United States v. Ayvazyan, 20-mj-3857, Dkt. 17 (S.D. Fla. Oct. 22, 2020)
(“Oct. 22 Tr.”). As Defendants set forth in their Kastigar Motion and at the
hearings, the illegal search and seizure directed by Agent Palmerton was the
precursor to Government Exhibit 10. This is because Petitioner’s unlawfully seized
phone (referred to as the “Zhadko phone” or “phone 1B23”) contained the “mirror
image” of many of the text messages from the Tamara Dadyan phone (“phone
1B21), which was obtained via the search warrant on the Weddington Street
residence. Up to six to seven weeks before trial, between February and May 2021,
31
Case 2:20-cr-00579-SVW     Document 1337     Filed 12/08/22     Page 32 of 54   Page ID
#:20311

Agent Palmerton hardly touches the Dadyan phone; he relies on its mirror image,
phone 1B23, Petitioner’s phone. Dkt. 113 (transcript of July 28, 2021 Kastigar
hearing) at 197.
D. The government’s failure to use a taint team meant that all of their
review and trial strategy happened with tainted evidence in mind,
in violation of Petitioner’s Fifth Amendment rights.
When the U.S. Department of Justice seizes potentially privileged files or
devices, the fundamental protections offered by the attorney-client privilege,
attorney work product protection, and other privileges and protections are put at
risk. “Taint teams,” also referred to as “filter teams” or “privilege teams” are a team
of prosecutors and agents who are, in theory, screened from the investigation team
and asked to pass along only those communications that are neither privileged nor
protected by constitutional rights. See Justice Manual § 9-13.420; see also id. §
9-13.400(D)(7) (“In executing a warrant . . . , investigators should use protocols
designed to minimize intrusion into potentially protected materials . . . , including
but not limited to keyword searches (for electronic searches) and filter teams.”)
The prosecution team in the instant case purportedly used a filter team. See
Dkt. 813, Kastigar hearing transcript, at 25-25; 136; 192; 213-214. However,
government testimony proves that the taint from Petitioner’s unlawfully seized
phone was hardly “filtered.” Agent Palmerton testified that the Cellebrite reports
from the digital devices from the Miami seizure were released to him from the filter
32
Case 2:20-cr-00579-SVW     Document 1337     Filed 12/08/22     Page 33 of 54   Page ID
#:20312

team on February 23, 2021. Id. at 25. Agent Palmerton reviewed phone 1B123
which was registered to Zhadko, and the other was 1B126, which was registered to
a Victoria Kauichko, approximately once per week from  February 24 and April 27
2021. Id. at 26-27. He exported what he thought were relevant text messages into a
PDF format. Id. at 27. IRS Criminal Investigation Special Agent Geffrey Clark
“never spoke with the filter team.” Id. at 136. Prior to April 27, 2021, no one
provided Agent Clark with information from any other other phones besides the
Miami phones. Id. Agent Clark reviewed the Tamara Dadyan phone, of which the
Zhadko phone contained the mirror image, but as of April 26, 2021, that phone had
not been released from the filter team to the government team. Id. at 136-137. In
other words, the Tamara Dadyan phone was not purged of the taint of the Zhadko
phone – Petitioner’s phone.
The testimony demonstrates that no tainted information was filtered in any
meaningful way. The government’s “fox” was left in charge of the Defendants’
“henhouse” and unfiltered information flowed from agent to agent. There was no
judicial review before any tainted materials could be released to the prosecution
team. Petitioner’s Fifth Amendment rights were clearly violated.
E. The Court’s substantively unreasonable or even unconscionable
total sentence and departure from the guidelines calculation was an
unlawful and procedurally unreasonable sentence, especially in
light of the fact that the proceeding was held in absentia.
33
Case 2:20-cr-00579-SVW     Document 1337     Filed 12/08/22     Page 34 of 54   Page ID
#:20313

On September 8, 2021, Petitioner’s counsel sought leave of the Court to
withdraw because Petitioner had not provided counsel with any instructions or
authorized counsel to advocate for one outcome or another at sentencing. Dkt. 942.
The Court denied that motion and directed counsel to proceed with sentencing in
absentia. Dkt. 980. Petitioner’s counsel was forced to submit a sentencing
memorandum as a submission of counsel alone with the risk of prejudice to
Petitioner’s rights.
In his Memorandum, Petitioner’s counsel made clear that this was a rare case
in which other defendants around the country allegedly committed substantially
similar crimes at substantially similar times. A summary submitted to the Court of
substantially all sentences of PPP/EIDL loan fraud cases involving loss amounts
similar to this case made one takeaway clear: a sentence of no more than 72 months
was appropriate for Ayvazyan. The 286-month sentence suggested by Probation,
which appeared to be driven by its adherence to the proposed Guidelines range, was
substantially greater than any sentence imposed on similarly situated defendants
across the country. However, as pointed out by counsel, the Guidelines range was
81-95 months of incarceration: 57-71 months for the money laundering counts
(Counts 1-20, 26) plus a consecutive 24-month term for the aggravated identity
theft counts (Counts 21 and 22). This potential 95 months of imprisonment was still
exceeded by orders of magnitude the Court’s “overarching duty” at sentencing to
impose the most lenient sentence possible that is sufficient to serve the sentencing
34
Case 2:20-cr-00579-SVW     Document 1337     Filed 12/08/22     Page 35 of 54   Page ID
#:20314

purposes in Section 3553(a)(2). Pepper v. United States, 562 U.S. 476, 491 (2011);
United States v. Carty, 520 F.3d 984, 991 (9th Cir. 2008) (en banc) (central tenet of
sentencing is that a criminal sentence must be sufficient, but not greater than
necessary to serve the purposes codified in 18 U.S.C. § 3553(a)(2)). The precedent
from PPP/EIDL loan fraud cases affirmed that a sentence of 72 months was
sufficient but not greater than necessary.
At the November 15, 2021 Sentencing Hearing, which was conducted in
absentia, the Court ultimately elected to fashion a sentence that comported neither
with the guidelines calculation nor the sentencing purposes in Section 3553(a)(2).
See Dkt. 1166 (minutes); 1154 (transcript). Petitioner’s counsel reiterated to the
Court that a “sentence of 72 months would put Mr. Ayvazyan towards the very
upper end of that greater than 20 of the 22 defendants including several that we
summarized in our papers that I believe are more culpable than Mr. Ayvazyan.”
Dkt. 1154 at 18. The government advocated for 159 months: “135 which is top end
of the guidelines range plus 24 mandatory minimum.” Id. at 23. For un-enunciated
reasons, The Court elected to go beyond the guidelines and the government’s own
recommendation and sentenced Petitioner to 180 months (“15 years on each of
Counts 1 through 20 and 15 years on Count 26 to be served concurrently”) plus 24
months on each of Counts 21 and 22 to be served concurrently with each other but
consecutive to the terms imposed on Counts 1 through 20 and 26 – i.e., a total of
204 months. Id. at 26.
35
Case 2:20-cr-00579-SVW     Document 1337     Filed 12/08/22     Page 36 of 54   Page ID
#:20315

The Court’s “reasoning” for the sentencing was not based on fact or law, but
on its own personal view of the case. “Not to sound hyperbolic, but, in the Court’s
experience which now is in excess of 30 years, I can’t recall a fraud case that was
conducted in a more calloused, intentional way without any regard for the law.” Id.
at 29. “I mean, the sentence is necessary to reflect the seriousness of the offense, to
promote respect for the law and to provide just punishment for the offense. The
Court recognizes that in the universe of white collar cases, this is a sentence that is
very meaningful and not unprecedented but certainly at the higher range of
sentences that this Court has imposed and other courts have imposed. But, given the
nature of what was introduced at trial, the Court is convinced that this is the least
sentence that the Court can impose to satisfy the element of promoting respect for
the law and to provide punishment and, on the second factor, adequate deterrence to
criminal conduct.” Id.
Notably, in support of the admittedly exemplary sentencing, the Court relied
on the text messages from Petitioner’s unlawfully seized and tainted phone: “He
says, for example, in the text messages, I didn’t sleep all night, I was working 24
hours straight, this program is over at the end of the month, get as much as we can.
And he and Tamara Dadyan described their fraud as an achievement.”
The Court’s words speak for themselves. A scope of the taint extended all the
way to Petitioner’s substantively unreasonable and unconscionable in absentia
sentence. Petitioner’s phone was not derived from a legitimate independent source.
36
Case 2:20-cr-00579-SVW     Document 1337     Filed 12/08/22     Page 37 of 54   Page ID
#:20316

It was used as an investigatory lead or to uncover other evidence, which tainted the
entire case, including the sentence. See, e.g., Danielson, 325 F.3d at 1072; United
States v. Dudden, 65 F.3d 1461, 1467 (9th Cir. 1995). Petitioner’s sentence must be
set aside.
Moreover, the government was free to proceed with a fugitive complaint to
further enhance the sentence based on flight, while the government gamed the
extradition process by waiting until the last minute to extract Petitioner from
Montenegro, in an apparent effort to deprive him of his ability to appeal or
collaterally attack his sentence.
F. Holding the Kastigar hearing after trial denied Petitioner of the
ability to plead guilty and due process right to bargain with the
government knowingly and intelligently.
A defendant has a due process right to bargain with the government
knowingly and intelligently (presumably advised by competent counsel) and
explicitly offered to forego a constitutional claim in exchange for a benefit, except
in unusual circumstances where a claim cannot be waived. See United States v.
Doyle, 348 F.2d 715, 718-19 (2d Cir.), cert. denied, 382 U.S. 843 (1965).
Here, on May 18, 2021, the Court ordered the Kastigar hearing would be held
on May 26, 2021, before trial. Dkt. 341. However, on May 19, 2021, the
government filed ex parte application for Reconsideration of the Scheduling Order
Setting Kastigar Hearing, arguing, inter alia, that “considerations of judicial
37
Case 2:20-cr-00579-SVW     Document 1337     Filed 12/08/22     Page 38 of 54   Page ID
#:20317

economy counsel in favor of holding a Kastigar hearing after trial” because
“[w]hereas a pre-trial Kastigar hearing requires the parties and the Court to predict
what evidence will ultimately be received, a post-trial hearing enables the factfinder
to adjudicate the issues with the benefit of knowing the evidence that was actually
used at trial.”
Dkt. 344 at 11 (emphasis added). “Moreover,” the government
added, “the jury’s verdict (or an entry of a pre-trial guilty plea by any defendant)
could very well influence the scope of the inquiry or obviate the need for it
altogether.”
In opposition to the government’s timing argument, Petitioner argued that the
government’s argument that it was “almost impossible to predict the evidence that
will be admitted at trial” was nonsensical given that the government claimed to be
“ready to proceed to trial” on April 5, 2021. Dkt. 351 at 17 n.17 (citing Dkt. 267-2).
“It is hard to fathom how the government could be ready to proceed to trial, yet not
know which exhibits it intends to use in its case-in-chief or their admissibility. …
At this point, the government should know with a reasonable degree of certainty
which exhibits it intends to introduce in its case-in-chief.” Id.
Indeed, after trial and once the post-trial Kastigar hearing was held, it became
imminently clear the government knew which exhibits it intended to use in its
case-in-chief – namely, the text messages featured at trial which were selected
using notes from the FBI or OIG Agent’s review of Petitioner’s unconstitutionally
seized phone, which made their way into what came to be known as the
38
Case 2:20-cr-00579-SVW     Document 1337     Filed 12/08/22     Page 39 of 54   Page ID
#:20318

government’s “star witness” in the case and trial: GEX 10. See Dkt. 113 (transcript
of July 28, 2021 Kastigar hearing) at 196. At the time of the government’s ex parte
application, Petitioner’s unlawfully seized phone (phone 1B23) was being used as
the “mirror image” to select the text messages from the Tamara Dadyan phone
(“phone 1B21), which was obtained from the Weddington Street residence.
Therefore, it was not “almost impossible to predict the evidence that [would] be
admitted at trial.” Without the benefit of Kastigar review, GEX 10 was almost
certain to be admitted at trial in light of the Court’s limited suppression of
Petitioner’s phone.
At a Kastigar hearing, the government bears the “heavy burden” of proving
by a preponderance “that ‘all of the evidence it proposes to use,’ and all of its trial
strategy, were ‘derived from legitimate independent sources.’” United States v.
Danielson, 325 F.3d 1054, 1072 (9th Cir. 2003) (quoting Kastigar, 406 U.S. at
460). The government must prove that it did not use the tainted information or any
derivative information in any respect, including but not limited to, refusing to plea
bargain. See, e.g., United States v. Danielson, 325 F.3d 1054, 1072 (9th Cir. 2003);
United States v. Hsia, 131 F. Supp. 2d 195, 202 (D.D.C. 2001).
The government’s concern of “an entry of a pre-trial guilty plea by any
defendant” was disingenuous as it made no offer to Petitioner before trial. It goes
without saying that if Petitioner learned pre-trial that the government’s makings of
GEX 10 would be found to be free of taint, he could have exercised his due process
39
Case 2:20-cr-00579-SVW     Document 1337     Filed 12/08/22     Page 40 of 54   Page ID
#:20319

right to bargain with the government knowingly and intelligently and forego trial
(and other constitutional claims) in exchange for the benefit of a plea in line with
the
level
of punishment his co-defendants received. Instead, due to the
government’s trial tactics and lack of candor to the Court, Petitioner was deprived
of this right.
G. The Government’s Failure to turn over Brady Evidence Warrants
Vacatur of the Conviction
In, Brady v. Maryland, 373 U.S. 83 (1963) the U.S. Supreme Court ruled that
suppression by the prosecution of evidence favorable to a defendant who has
requested it violates due process. “One of the principal, sworn duties of a
prosecutor is to disclose to a defendant all material, favorable evidence, including
impeachment evidence, in the Government’s possession.” United States v. Govey,
284 F. Supp. 3d 1054, 1061 (C.D. Cal. 2018) (citing Brady v. Maryland, 373 U.S.
83 (1963); Giglio v. United States, 405 U.S. 150 (1972)). The evidence must be
disclosed “at a time when the disclosure would be of value to the accused.” Gantt v.
Roe, 389 F.3d 908, 912 (9th Cir. 2004) (granting habeas relief where prosecutors
failed to disclose exculpatory evidence in time for use by defendant at trial). “Strict
compliance with these discovery obligations is required for a defendant to be
afforded due process and to meaningfully exercise his Sixth Amendment right to a
fair and speedy trial and his right to call and confront witnesses.” Govey, 284 F.
Supp. 3d at 1061.
40
Case 2:20-cr-00579-SVW     Document 1337     Filed 12/08/22     Page 41 of 54   Page ID
#:20320

In Petitioner’s April 21, 2021 Motion to Enforce the December 22, 2020
Discovery Order, Petitioner had already argued that the government’s inability to
produce evidence in its possession before trial warranted dismissal of the
indictment. Dkt. 248 at 7-9.
On May 20, 2021, Petitioner’s counsel sent a letter to the prosecuting attorney
regarding outstanding discovery,
requesting that the government produce all
information
or documents responsive to Category One (“Information and
Documents Regarding Kastigar Taint”) by May 22, 2021 and produce all
information or documents responsive to Categories Two (“Brady Evidence from
Other Agencies Participating in the Prosecution”), Three (“Information Regarding
the Responsiveness Review of Seized Devices 1B17, 1B21, 1B81, and 1B85”), and
Four (“Notice of the Core Allegations for Trial”) by May 24, 2021. Dkt. 353-1 (Ex.
A to Notice Regarding Defendant Richard Ayvazyan’s Discovery Demands). With
respect to Brady evidence, counsel noted that on May 7, 2021, he had asked the
government several basic questions about its Brady obligations in light of the
expansive government team involved in investigating and/or prosecuting this case –
documents and information in any such agency’s custody or control that is material
to preparing the defense; is favorable to the defense; would tend to contradict any
of the government’s evidence or argument; would tend to support any of the
defense’s stated or anticipated arguments including those listed in Petitioner’s
November 18, 2020 discovery letter and subsequent statements to the Court; would
41
Case 2:20-cr-00579-SVW     Document 1337     Filed 12/08/22     Page 42 of 54   Page ID
#:20321

tend to impeach any government witness; would tend to cast doubt on the accuracy
or admissibility of witness testimony on which the prosecution may rely; is relevant
to sentencing; or would tend to exculpate Petitioner or mitigate his culpability in
any respect, and documents or information could lead to the discovery of evidence
that would do the same. In its May 17, 2021 email, the government claimed it had
responded to this request in a court filing, but it had not.
In his May 20, 2021 Response to the government’s Notice Regarding
Defendant Richard Ayvazyan’s Discovery Demands, Petitioner noted that the
government had “roped a multitude of agencies into a sprawling investigation and
prosecution,” and that, for example, a state investigation team had participated in
the investigation since at least November 5, 2020, when it participated in executing
the search warrants in this case, see e.g., Nov. 6, 2020 Mem. of Activity
(DOJ_PROD_0000162787, produced on May 13, 2021) (noting that the lead
investigator on the state case who had referred that case to the FBI/USAO in 2017
“conducted the search” in this case at co-defendant Dadyan and Artur Ayvazyan’s
home); Nov. 9, 2020 FD-302 (DOJ_PROD_ 0000152511, produced on Mar. 15,
2021) (noting that three LAPD task force officers participated in the search in this
case at Residential Property 2 (allegedly owned by Ayvazyan)), and likely have
continued consulting, investigating, and working with the rest of the prosecution
team ever since. It was therefore not unreasonable to ask the government to adhere
to its Brady, Rule 16, and ethical obligations and turn over the Brady discovery.
42
Case 2:20-cr-00579-SVW     Document 1337     Filed 12/08/22     Page 43 of 54   Page ID
#:20322

Nevertheless, the Court allowed the government to disclose no exculpatory
evidence while allowing it simultaneously to introduce evidence prejudicial to
Petitioner. As set forth in Petitioner’s July 12, 2021 Motion For New Trial And/Or
Judgment Of Acquittal, the Court allowed evidence of “reserve identities” while
simultaneously excluding exculpatory evidence related to those identities. Dkt. 683
at 8-9. The government had argued that the “reserve identities” (for example, fake
or synthetic drivers licenses that were seized from Tamara Dadyan’s residence and
admitted into evidence at trial as GX 57.a) were evidence of “the parts for an
assembly line to produce fraudulent loan applications” that were relevant to
whether the defendants were guilty of the single, unitary conspiracy and scheme
charged in Counts 1-20 of the First Superseding Indictment. See Dkt. 384, May 31,
2021 Motion in Limine to Admit Evidence Inextricably Intertwined with the
Charged Offenses (Government's MIL #2) (Exhibits 1-4 filed under seal) Filed by
Plaintiff USA as to Defendant Richard Ayvazyan, Marietta Terabelian, Artur
Ayvazyan, Tamara Dadyan, Manuk Grigoryan, Arman Hayrapetyan, Edvard
Paronyan, Vahe Dadyan, at 6.
In response to this evidence, the defense attempted to introduce evidence that
this “assembly line of fraud” was actually part of a separate mortgage fraud scheme
(unrelated to PPP or EIDL applications) operated by Tamara Dadyan. The existence
of this other conspiracy, completely unrelated to the Grigoryan crew, made it more
likely that Dadyan operated her own PPP scheme using the same infrastructure
43
Case 2:20-cr-00579-SVW     Document 1337     Filed 12/08/22     Page 44 of 54   Page ID
#:20323

from the alleged mortgage fraud scheme. This is fatal to the single, unitary
conspiracy and scheme charged by the government in this case. Petitioner was
precluded from presenting this evidence via the testimony of Detective Lyle
Barnes, Dkt. 664 at 1-3, and repeatedly precluded from questioning other witnesses
regarding the same. Because Petitioner was not permitted to present this relevant
and exculpatory evidence to the jury, his conviction should be set aside.
Further, to the extent such evidence was excluded because it could have
prejudiced co-defendant Artur Ayvazyan (Dkt. 664 at 1), severance – not the
exclusion of exculpatory evidence – was the appropriate remedy. Under Rule 14 of
the Federal Rules of Criminal Procedure the district court may order a severance
when it appears that a defendant may be significantly prejudiced by a joint trial
with his co-defendants. When one defendant’s exculpatory evidence might
prejudice another, the remedy is not to deny the first defendant the right to present
his defense, but rather to sever the two defendants and conduct their trials
separately. See United States v. Williams, 878 F.2d 388 (9th Cir. 1989) (both
antagonistic defenses and the risk of spillover evidence from another defendant’s
defense are grounds for severance). The Courts’ failure to sever the two defendants
and instead exclude evidence that was exculpatory vis-a-vis Petitioner prejudiced
Petitioner and violated his Brady rights.
44
Case 2:20-cr-00579-SVW     Document 1337     Filed 12/08/22     Page 45 of 54   Page ID
#:20324

H. Petitioner did not receive information concerning the availability
of, or ability to, appeal his convictions and/or sentence, which is
ineffective assistance of counsel
A criminal defendant has the right to the effective assistance of counsel. This
right is guaranteed by the Sixth and Fourteenth Amendments to the United States
Constitution. Strickland v. Washington, 466 U.S. 668 (1984). “To establish ‘that
counsel was constitutionally ineffective for failing to file a notice of appeal,’ a
defendant ‘must show (1) that counsel’s representation ‘fell below an objective
standard of reasonableness,’ and (2) that counsel’s deficient performance
prejudiced the defendant.” United States v. Cheevers, No. 19-55484, 2022 U.S.
App. LEXIS 12213, at *1-2 (9th Cir. May 5, 2022) (quoting Roe v. Flores-Ortega,
528 U.S. 470, 476-77 (2000) (citations omitted). “In order to satisfy the first prong,
a defendant must make at least one of the following three showings: (1) that
counsel ‘fail[ed] to follow the defendant’s express instructions with respect to an
appeal’; (2) that ‘a rational defendant would want to appeal’ and counsel did not
consult with the defendant about appealing; or (3) that the defendant ‘reasonably
demonstrated to counsel that he [or she] was interested in appealing’ and counsel
did not consult with the defendant. Id. (quoting Flores-Ortega, 528 U.S. at 478,
480).
Petitioner makes a sufficient showing as to any of several of the three
alternatives, and his ineffective assistance claim therefore is valid. Petitioner
45
Case 2:20-cr-00579-SVW     Document 1337     Filed 12/08/22     Page 46 of 54   Page ID
#:20325

discussed a motion for a new trial with his attorney, but appealing the conviction or
sentence was not discussed. See Exhibit B, Declaration of Richard Ayvazyan.
Petitioner avers that based on what he knows today, he believes he had strong
grounds to appeal. Id. Petitioner was not advised he had only fourteen days to
appeal after the judgment, or that he could appeal from outside the country. Id.
Petitioner missed an opportunity he would have seized if properly advised. Id. As
set forth in this brief and the Court’s pleadings and transcripts, a rational defendant
in Petitioner’s position would want to appeal. Petitioner’s lawyer had a duty to
consult with his client about the choice to appeal. Therefore, for this reason too,
Petitioner’s sentence was “imposed in violation of the Constitution or laws of the
United States.”
I. The Court erred in charging only one conspiracy despite the
finding of multiple conspiracies.
The court failed to properly instruct the jury on the issue of multiple
conspiracies and schemes. In reviewing instructions for error, the court must ask
whether the jury instructions, “taken as a whole, [] misle[d] the jury or state[d] the
law incorrectly to the prejudice of the objecting party.” City of Long Beach v.
Standard Oil of California, 46 F.3d 929, 933 (9th Cir. 1995); see also United States
v. Wilkerson, 361 F.3d 717, 732 (2d Cir. 2004) (“A jury instruction is erroneous if it
misleads the jury as to the correct legal standard or does not adequately inform the
jury on the law”).
46
Case 2:20-cr-00579-SVW     Document 1337     Filed 12/08/22     Page 47 of 54   Page ID
#:20326

Here, the jury instructions misled the jury by not informing them that, if the
government’s evidence supported the existence of multiple, separate conspiracies
and schemes rather than the single, unitary conspiracy and scheme charged in
Counts 1-20 of the indictment, they were required to acquit the defendants on all of
these counts. The defense was entitled to this instruction because the government
failed to adduce sufficient evidence to carry its burden with respect to the elements
of each of the above- referenced counts. The government charged a single, unitary
conspiracy and executions of a single, unitary scheme to defraud in the indictment
and were required to prove that single conspiracy and scheme beyond a reasonable
doubt. “A single conspiracy can only be demonstrated by proof that an overall
agreement existed among the conspirators.” United States v. Fernandez, 388 F.3d
1199, 1226 (9th Cir. 2004) (quoting United States v. Duran, 189 F.3d 1071, 1080
(9th Cir. 1999)). To prove a conspiracy, “the evidence must show that each
defendant knew, or had reason to know, that his benefits were probably dependent
upon the success of the entire operation.” Id. If the evidence at trial establishes
multiple conspiracies (as it did here), then there is insufficient evidence to support
conviction of a single conspiracy and any conviction must be reversed. Id. at
1226-27; see also United States v. Brown, 912 F.2d 1040, 1043 (9th Cir. 1990) (“the
trial court instructed the jury that in order to convict Brown it must find that he was
a member of the single conspiracy charged in the indictment. If he did conspire but
not as a member of that conspiracy, a not guilty verdict was required. This is of no
47
Case 2:20-cr-00579-SVW     Document 1337     Filed 12/08/22     Page 48 of 54   Page ID
#:20327

little importance. It underscores the fact that this is not a case where a trial court
permitted a defendant to be convicted of a single overall conspiracy even though
only separate conspiracies were shown.”).
Similarly, the evidence must establish “a single scheme to defraud” in order to
convict on the wire and bank fraud counts. See United States v. Wellington, 754
F.2d 1457, 1463 & n.3 (9th Cir. 1985); see also United States v. Morse, 785 F.2d
771, 776- 77 (9th Cir. 1986) (“In a mail fraud case in which a defendant contends
that a variance has occurred between the single scheme charged in each count of the
indictment and the proof at trial, the jury must be instructed that, to return a guilty
verdict, each of the jurors must find the defendant guilty of participation in the
same single scheme to defraud alleged in the indictment.”); United States v.
Mastelotto, 717 F.2d 1238 (9th Cir. 1983) (same).
In this case, there were (if anything) multiple conspiracies and schemes
lacking a single “overall agreement . . . among the conspirators.” The alleged
conspirators’ success was not dependent upon the success of the entire operation,
and – even though the alleged co-conspirators had substantial pre-existing ties
unrelated to any charged conspiracy – there was not sufficient conspiratorial
interconnectivity and interdependence to permit a factual finding of a single
conspiracy or scheme. The evidence adduced at trial supported the existence of at
least two (and potentially many more) different conspiracies and corresponding
schemes embedded within the charged conspiracy and scheme. First, Manuk
48
Case 2:20-cr-00579-SVW     Document 1337     Filed 12/08/22     Page 49 of 54   Page ID
#:20328

Grigoryan was at the center of a set of schemes involving credit card fraud and
construction funding fraud that involved the use of synthetic identities of Russian
and Ukrainian foreign exchange students, including Iuliia Zhadko, Viktoria
Kauichko, and Anton Kudiumov. This conduct pre-dated the existence of PPP
loans. Several of Manuk Grigoryan’s dedicated group of co-conspirators, including
Asya Vostanikyan, Paruyr Hayrapetyan, Hayk Ohanyan, and Edvard Paronyan,
further engaged in Employment Development Department (EDD) fraud, and
separately engaged in PPP loan fraud, at the same time, using overlapping synthetic
identities and entities. Grigoryan’s Canoga Avenue apartment, for example, was
found to contain references to Grigoryan’s PPP loan fraud companies and synthetic
identities, EDD fraud documents, and medical bills for Grigoryan’s wife. See GX
54.b; DX 59; DX 48.
Second, over the last several years, Tamara Dadyan was at the center of a
different set of schemes, and is alleged to involve Grigor Tatoian, Arshak
Bartoumian, and Art Martirosyan among others. Dadyan also deployed some of
these people to commit PPP loan fraud in 2020. Although Dadyan’s group also
obtained synthetic identities derived from Russian and Ukrainian foreign exchange
students (among other sources) including Iuliia Zhadko, there was no joint venture
or sufficient interdependence between the Grigoryan and Dadyan groups to allow
the jury to find, beyond a reasonable doubt, the existence of a conspiracy involving
all of the defendants charged in the indictment. Taken together, this evidence of
49
Case 2:20-cr-00579-SVW     Document 1337     Filed 12/08/22     Page 50 of 54   Page ID
#:20329

separate, unrelated conspiracies led by Tamara Dadyan and Manuk Grigoryan
required that the jury be given a multiple conspiracies and multiple schemes
instruction as requested by Ayvazyan. Because this instruction was not given,
Petitioner’s sentence was imposed in violation of the Constitution or laws of the
United States.
Petitioner was also prejudiced because he was denied a jury instruction on his
theory of the defense: that the government’s evidence demonstrated multiple
conspiracies and schemes rather than the single, unitary conspiracy and scheme
charged. Thus, acquittal was required. The burden to receive such an instruction is
minimal—all that is required is “some foundation in the evidence” even if that
evidence is “weak, insufficient, inconsistent, or of doubtful credibility.” United
States v. Sotelo-Murillo, 887 F.2d 176, 179 (9th Cir. 1989) (“A criminal defendant
is entitled to a jury instruction on any defense which provides a legal defense to the
charge against him and has some foundation in the evidence, even though the
evidence may be weak, insufficient, inconsistent, or of doubtful credibility. Where a
defendant’s requested instruction is supported by some evidence, a trial court’s
failure to give it is reversible error.”). A jury instruction on the defendant’s theory
of the defense is a right “so basic to a fair trial” that failure to give it is reversible
error. United States v. Escobar de Bright, 742 F.2d 1196, 1201 (9th Cir. 1984) (“The
right to have the jury instructed as to the defendant’s theory of the case is one of
50
Case 2:20-cr-00579-SVW     Document 1337     Filed 12/08/22     Page 51 of 54   Page ID
#:20330

those rights ‘so basic to a fair trial’ that failure to instruct where there is evidence to
support the instruction can never be considered harmless error.”) (citations
omitted).
At a minimum, a specific unanimity instruction was required because of the
specter of multiple conspiracies and schemes underlying the indictment. Petitioner
requested such an instruction. See June 25, 2021 Trial Transcript (AM & PM) at
9:14-10:2. Such an instruction is required where evidence of multiple conspiracies
is presented, because there is a “genuine possibility of jury confusion” or a
possibility “that a conviction may occur as the result of different jurors concluding
that the defendant committed different acts.” United States v. Lapier, 796 F.3d
1090, 1096 (9th Cir. 2015) (“Because the evidence in this case tended to show
multiple conspiracies instead of the single charged conspiracy, the failure to give a
specific unanimity instruction was plain error violating [defendant]’s substantial
right to a unanimous jury verdict as granted by Article III, § 2, and the Sixth
Amendment of the United States Constitution.”). As such, Petitioner’s sentence was
imposed in violation of the Constitution or laws of the United States, and must be
vacated and set aside.
IV.
CONCLUSION
For the reasons set forth above, Petitioner’s sentence was “imposed in
violation of the Constitution or laws of the United States.” Pursuant to 28 U.S.C. §
2255, “[u]nless the motion and the files and records of the case conclusively show
51
Case 2:20-cr-00579-SVW     Document 1337     Filed 12/08/22     Page 52 of 54   Page ID
#:20331

that the prisoner is entitled to no relief, the court shall . . . grant a prompt hearing
thereon, determine the issues and make findings of fact and conclusions of law with
respect thereto.” 28 U.S.C. § 2255(b). Here, Petitioner has alleged cognizable
claims that are supported by the record. Therefore, the Court should vacate the
conviction or promptly schedule this matter for an evidentiary hearing.
Dated: December 8, 2022
Respectfully submitted,
/s/ Carlo Brooks  
Carlo Brooks, Esq.
3826 Grand View Bl, Ste 661472
Los Angeles, CA 90066
(310) 691-9373
carlo@carlobrooks.com
Attorney for Petitioner
52
Case 2:20-cr-00579-SVW     Document 1337     Filed 12/08/22     Page 53 of 54   Page ID
#:20332

CERTIFICATE OF SERVICE
I certify that I served a copy of this document and its attachments on the
Court and all parties by filing this document with the Clerk of the Court through the
CM/ECF system, which will provide electronic notice and an electronic link to this
document to all counsel of record.
DATED: December 8, 2022
Respectfully submitted,
/s/ Carlo Brooks        
Carlo Brooks, Esq.
53
Case 2:20-cr-00579-SVW     Document 1337     Filed 12/08/22     Page 54 of 54   Page ID
#:20333

File and source

File

gov.uscourts.cacd.802533.1337.0.pdf

Size

396,363 bytes

SHA-256

b5b68b9de5f9ff92990cd735ace4e9153393f98011978d31cb507bf92a422c82

Our copy

gov.uscourts.cacd.802533.1337.0.pdf

Original

PACER (login required)