OPINION of USCA filed as to Defendant Vahe Dadyan, Notice of Appeal 1090 , CCA… — USA v. Ayvazyan et al (Dkt. 1399)

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U.S. District Court for the Central District of California · No. 2:20-cr-00579-SVW · Doc. 1399 · 2023-08-07 · Docket on CourtListener

Full text

FOR PUBLICATION 
 
UNITED STATES COURT OF APPEALS 
FOR THE NINTH CIRCUIT 
 
UNITED STATES OF AMERICA,   
  
 
 
 
 
Plaintiff-Appellee,  
  
   v.  
  
VAHE DADYAN,   
  
 
 
 
 
Defendant-Appellant. 
 
 
No. 21-50237  
  
D.C. No.  
2:20-cr-00579-
SVW-8  
  
  
OPINION 
 
UNITED STATES OF AMERICA,   
  
 
 
 
 
Plaintiff-Appellee,  
  
   v.  
  
ARTUR AYVAZYAN, AKA Arthur 
Ayvazyan,   
  
 
 
 
 
Defendant-Appellant. 
 
 
No. 21-50302  
  
D.C. Nos.  
2:20-cr-00579-
SVW-3  
2:20-cr-00579-
SVW  
  
   
 
Appeal from the United States District Court 
for the Central District of California 
Stephen V. Wilson, District Judge, Presiding 
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USA V. DADYAN 
 
Argued and Submitted June 8, 2023 
Pasadena, California 
 
Filed August 7, 2023 
 
Before:  MILAN D. SMITH, JR. and ROOPALI H. 
DESAI, Circuit Judges, and CAROL BAGLEY AMON,* 
District Judge. 
 
Opinion by Judge Milan D. Smith, Jr. 
 
 
 
SUMMARY** 
 
Criminal Law 
 
The panel affirmed in part and vacated in part the district 
court’s imposition of restitution obligations on Vahe Dadyan 
and Artur Ayvazyan following their convictions of various 
offenses stemming from an eight-person conspiracy to 
fraudulently obtain and launder millions of dollars in federal 
Covid-relief funds that were intended to assist businesses 
impacted by the pandemic. 
The panel held that, under the Mandatory Victims 
Restitution Act (MVRA), the district court properly imposed 
 
* The Honorable Carol Bagley Amon, United States District Judge for 
the Eastern District of New York, sitting by designation. 
** This summary constitutes no part of the opinion of the court.  It has 
been prepared by court staff for the convenience of the reader. 
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USA V. DADYAN 
 
3 
 
restitution in the full amount of the loss caused by the 
conspiracy instead of just the loss caused by the fraudulent 
loan applications Vahe and Artur personally played a role in 
submitting. 
As to Artur, the panel held that the district court properly 
ordered a restitution amount under the MVRA based on the 
“value” of fraudulently obtained property, which exceeded 
the amount of “actual loss” the district court found when 
sentencing him under U.S.S.G. § 2B1.1(b)(1).  Artur’s 
proposed rule to make a Guidelines-loss finding a hard cap 
on a restitution calculation could not be squared with Ninth 
Circuit precedent, or with the text and purpose of the 
MVRA. 
The panel held that Artur failed to establish that the 
district court clearly erred in calculating the amount of 
restitution. 
The panel held that precedent foreclosed Artur’s 
argument that his Fifth and Sixth Amendment rights to due 
process and a jury trial required that a jury, not a district 
judge, find all facts underpinning restitution beyond a 
reasonable doubt. 
As to Vahe, the panel vacated and remanded for the 
district court to amend his judgment and commitment order 
to specify, as the government conceded, that his restitution 
obligation runs jointly and severally with those of his four 
trial co-defendants. 
In separately filed memorandum dispositions, the panel 
affirmed Vahe and Artur’s jury convictions, affirmed the 
district court’s application of the Sentencing Guidelines to 
Artur, and vacated and remanded for Artur’s resentencing 
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USA V. DADYAN 
because the district court plainly erred by failing to invite his 
allocution. 
 
 
 
COUNSEL 
Verna J. Wefald (argued), Law Office of Verna Wefald, 
Pasadena, California, for Defendant-Appellant Vahe 
Dadyan. 
Kathryn A. Young (argued), Deputy Federal Public 
Defender; Cuauhtemoc Ortega, Federal Public Defender; 
Federal Public Defender’s Office, Los Angeles, California; 
for Defendant-Appellant Artur Ayvazyan. 
David M. Lieberman (argued) and Christopher Fenton, 
Attorneys, Appellate and Fraud Sections; Lisa H. Miller, 
Deputy Assistant Attorney General; Kenneth A. Polite, Jr., 
Assistant Attorney General; E. Martin Estrada, United States 
Attorney; Criminal Division, United States Department of 
Justice, United States Attorney’s Office; Washington, D.C.; 
Daniel G. Boyle and Scott Paetty, Assistant United States 
Attorneys; Bram M. Alden, Criminal Appeals Section Chief; 
United States Department of Justice, United States 
Attorney’s Office; Los Angeles, California; Jeremy R. 
Sanders, Trial Attorney; United States Department of 
Justice; New York, New York; for Plaintiff-Appellee. 
 
 
 
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USA V. DADYAN 
 
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OPINION 
 
M. SMITH, Circuit Judge: 
Vahe Dadyan and Artur Ayvazyan were convicted of 
various offenses stemming from an eight-person conspiracy 
to fraudulently obtain and launder millions of dollars in 
federal Covid-relief funds that were intended to assist 
businesses impacted by the pandemic.  On appeal, Vahe and 
Artur challenge their restitution obligations on both legal and 
factual grounds.  We affirm their restitution obligations, 
except that we vacate and remand for Vahe’s judgment and 
commitment order to be amended to specify that, as all 
parties agree, his restitution obligation runs jointly and 
severally with those of his trial co-codefendants.1 
FACTUAL BACKGROUND 
In March 2020, the federal government provided two 
lifelines to businesses impacted by the Covid-19 pandemic.  
The Coronavirus Aid, Relief, and Economic Security 
(CARES) Act established the Paycheck Protection Program 
(PPP), which made billions of dollars in government-
guaranteed loans available to qualifying businesses for 
payroll retention and other authorized expenses.  Pub. L. No. 
116-136, § 1102, 134 Stat. 281, 286–94 (2020).  The 
CARES 
Act 
also 
authorized 
the 
Small 
Business 
Administration, through the Economic Injury Disaster Loans 
(EIDL) program, to make low-interest loans to qualifying 
 
1 In separately filed memorandum dispositions, we affirm Vahe and 
Artur’s jury convictions, affirm the district court’s application of the 
Sentencing Guidelines to Artur, and vacate and remand for Artur’s 
resentencing because the district court plainly erred by failing to invite 
his allocution.   
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USA V. DADYAN 
businesses for certain authorized expenses, including 
providing sick leave to employees who contracted Covid and 
maintaining 
payroll 
during 
Covid-related 
business 
disruptions.  Id. § 1110, 306–08.   
Vahe, Artur, and six other individuals conspired to 
submit fraudulent PPP and EIDL loan applications and, once 
those loan applications were approved, to launder the 
fraudulently obtained funds.2  Vahe, for example, signed a 
$157,500 PPP loan application stating that his business had 
eleven employees and average monthly payroll expenses of 
$63,000—but, in reality, his business had no employees and 
no payroll expenses.  Similarly, Artur (among other things) 
submitted a $124,000 PPP loan application containing false 
payroll information.  Nor did Vahe and Artur use the PPP 
funds for authorized business expenses.  Instead, after taking 
a circuitous route, the bulk of Vahe’s and Artur’s PPP funds 
ended up facilitating co-conspirators’ multi-million-dollar 
real estate transactions. 
A jury convicted Vahe of conspiracy to commit bank and 
wire fraud (18 U.S.C. §§ 1343–1344, 1349); conspiracy to 
commit money laundering (id. § 1956(h)); and substantive 
counts of wire fraud, bank fraud, and concealment money 
laundering (id. §§ 1343–1344, 1956(a)(1)(B)(i)).  The 
district court sentenced Vahe to one year and one day in 
prison and held him jointly and severally liable along with 
his trial co-defendants for $10,706,188.13 in restitution—
with that figure representing the district court’s calculation 
 
2 Because Vahe and Artur are related to and share the same last names 
as some of their co-conspirators, we refer to them by their first names. 
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USA V. DADYAN 
 
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of all losses the conspiracy directly and proximately caused 
to victims after Vahe joined it.3 
A jury convicted Artur of conspiracy to commit bank and 
wire fraud (18 U.S.C. §§ 1343–1344, 1349); conspiracy to 
commit concealment money laundering (id. § 1956(h)); 
substantive counts of wire and bank fraud (id. §§ 1343–
1344); and aggravated identity theft (id. § 1028A(a)(1)).  
The district court sentenced Artur to five years in prison and 
held him jointly and severally liable along with his trial co-
defendants for $17,723,141.26 in restitution—with that 
figure representing the district court’s calculation of all 
losses the conspiracy directly and proximately caused to 
victims.  Vahe and Artur timely appealed. 
JURISDICTION AND STANDARD OF REVIEW 
We have jurisdiction pursuant to 28 U.S.C. § 1291.  “The 
legality of a restitution order is reviewed de novo, as is the 
district court’s valuation methodology.  If the order is within 
statutory bounds, then the restitution calculation is reviewed 
for abuse of discretion, with any underlying factual findings 
reviewed for clear error.”  United States v. Gagarin, 950 
F.3d 596, 607 (9th Cir. 2020) (cleaned up). 
ANALYSIS 
I. Co-Conspirator Liability 
Vahe and Artur argue that the district court erred as a 
matter of law by imposing restitution in the full amount of 
loss caused by the conspiracy instead of just the loss caused 
by the fraudulent loan applications they personally played a 
 
3 As explained below, the parties agree that Vahe’s restitution obligation 
runs jointly and severally with his trial co-defendants, but his current 
judgment and commitment order does not reflect that.  Infra section V. 
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USA V. DADYAN 
role in submitting.4  We reject this argument as foreclosed 
by precedent: Where a defendant is convicted of conspiracy, 
the Mandatory Victims Restitution Act (MVRA) authorizes 
a district court to hold the defendant jointly and severally 
liable, see 18 U.S.C. § 3664(h), “for all [victims] harmed by 
the entire scheme,” United States v. Riley, 335 F.3d 919, 931 
(9th Cir. 2003) (emphasis added). 
In Riley, the defendant pled guilty to, among other 
offenses, conspiracy to produce fictitious financial 
instruments (there, checks and money orders).  Id. at 923–
25.  Challenging his restitution obligation, the defendant 
argued that “he should not be held accountable for the losses 
caused by his coconspirators’ check cashing”—that is, his 
co-conspirators’ conduct within the scope of and in 
furtherance of the conspiracy he joined.  Id. at 931.  We 
rejected this argument and held: “[I]n a case involving a 
conspiracy or scheme, restitution may be ordered for all 
persons harmed by the entire scheme. . . . A conspirator is 
vicariously liable for reasonably foreseeable substantive 
crimes committed by a coconspirator in furtherance of the 
conspiracy.”  Id. at 931–32.  So too here: The district court 
did not err by holding Vahe and Artur jointly and severally 
liable for restitution in the full amount of loss that the entire 
conspiracy caused.5 
 
4 Vahe’s restitution obligation (about $10.7 million) is less than Artur’s 
(about $17.7 million) because the district court excluded from Vahe’s 
obligation all losses caused before Vahe joined the conspiracy.  
5 This is not to suggest that a district court must follow the approach 
taken here.  Instead, a district court has a choice where it “finds that more 
than 1 defendant has contributed to the loss of a victim.”  18 U.S.C. 
§ 3664(h).  A court may, as the district court did here, hold each 
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USA V. DADYAN 
 
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II. Different 
Restitution 
and 
Guidelines-Loss 
Calculations 
Artur argues that the district court erred as a matter of 
law by ordering a restitution amount (about $17.7 million) 
that exceeded the amount of loss the district court found 
when sentencing him (more than $1.5 million but less $3.5 
million).  As above, our precedent forecloses this argument: 
There is no categorical rule that restitution must be equal to 
or less than the amount of loss found when applying 
Sentencing Guidelines § 2B1.1(b)(1) or similar loss-based 
Guidelines sections. 
As Artur’s argument suggests, MVRA restitution 
calculations in property-deprivation cases and Guidelines 
section 2B1.1(b)(1) loss calculations do share common 
ground.  When calculating MVRA restitution for a property-
based offense and the “return of the [fraudulently obtained] 
property . . . is impossible, impracticable, or inadequate,” the 
district court “shall require” the defendant to pay “the value 
of the property.”  18 U.S.C. § 3663A(b)(1)(B) (emphasis 
added).  When calculating the Guidelines range for a 
defendant convicted of a standard property-deprivation 
crime, a district court increases the defendant’s Guidelines 
range to account for the amount of “loss” caused, with loss 
defined as the greater of the “actual” or “intended” amount 
of “pecuniary harm.”  U.S.S.G. § 2B1.1(b)(1) & Application 
Note 3(A).  Given the high-level similarity of these terms 
(“value” of fraudulently obtained property and “pecuniary 
harm”), restitution and Guidelines-loss figures often mirror 
one another when the Guidelines calculation is based on 
actual (rather than intended) loss.  See United States v. 
 
defendant jointly and severally “liable for payment of the full amount of 
restitution,” or it “may apportion liability among the defendants.”  Id. 
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Lawrence, 189 F.3d 838, 842 (9th Cir. 1999) ($574,700 for 
both); cf. United States v. Anderson, 741 F.3d 938, 951 (9th 
Cir. 2013) (Guidelines § 2B5.3(b)(1) loss of at least 
$200,000; restitution of $247,144).   
Moreover, some of our decisions include statements 
equating restitution and actual loss.  See, e.g., United States 
v. Begay, 33 F.4th 1081, 1096 (9th Cir. 2022) (“any award 
is limited to the victim’s actual losses” (citation omitted)); 
United States v. Rizk, 660 F.3d 1125, 1137 (9th Cir. 2011) 
(“[a] district court may not order restitution such that victims 
will receive an amount greater than their actual losses”); 
United States v. Stoddard, 150 F.3d 1140, 1147 (9th Cir. 
1998) (“[r]estitution can only be based on actual loss”).  As 
we have done before, “[w]e acknowledge that [these 
decisions] use of the phrase ‘actual loss’ in discussion of 
restitution generates some confusion.”  United States v. 
Nosal, 844 F.3d 1024, 1046–47 (9th Cir. 2016) (citation 
omitted).  That is because those decisions used “actual loss” 
in the colloquial sense, not necessarily tethered to a 
Guidelines calculation.  The point being emphasized in those 
statements is that victims may not receive restitution that 
exceeds the losses they actually suffered.  
But those statements and the noted similarities between 
restitution and Guidelines loss do not add up to the 
categorical rule, advanced by Artur, that once a court 
determines “actual loss” for Sentencing Guidelines 
purposes, its restitution determination cannot exceed that 
amount.  Instead, when our court has actually been presented 
with Artur’s categorical argument, we have rejected it.  In 
Nosal, we explained: “We must initially decide whether, as 
[the defendant] urges, the restitution award is invalid 
because it exceeds the actual loss that the district court 
determined for the purposes of the Sentencing Guidelines 
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U.S.S.G. § 2B1.1(b) . . . . The answer to that question is 
found in our observation that ‘calculating loss under the 
guidelines is not necessarily identical to loss calculation for 
purposes of restitution.’”  Id. at 1046 (citation omitted).  
Indeed, we have cautioned district courts to not reflexively 
“rely on [their] calculation of the loss under the Sentencing 
Guidelines to determine the amount of restitution as the two 
measures serve different purposes and utilize different 
calculation methods.”  Anderson, 741 F.3d at 952; see also 
United States v. Gossi, 608 F.3d 574, 582 (9th Cir. 2010) 
(“we reject [the defendant’s] argument that we should look 
to the advisory Sentencing Guidelines for calculating the 
victim’s losses”).  Artur’s proposed categorial rule, which 
would make a Guidelines-loss finding a hard cap on a 
restitution calculation, cannot be squared with our court’s 
precedent. 
Nor can Artur’s proposed categorical rule be squared 
with the text and purpose of the MVRA.  The MVRA does 
not just set forth the high-level guidance that restitution 
should equal the “value” of fraudulently obtained property; 
it provides specific instructions on how to calculate “value” 
in specific situations—sometimes doing so in ways that 
expressly contradict the Guidelines’ approach to calculating 
loss.  Consider the following two examples: The MVRA 
requires compensation for “expenses incurred during 
participation in the investigation,” while Guidelines 
commentary provides that “[l]oss shall not include . . . costs 
incurred by victims primarily to aid the government in[] the 
prosecution and criminal investigation of an offense.”  
Nosal, 844 F.3d at 1046–47 (quoting 18 U.S.C. 
§ 3663A(b)(4); 
U.S.S.G. 
§ 2B1.1 
Application 
Note 
3(D)(ii)).  Similarly, the MVRA “can include prejudgment 
interest,” United States v. Catherine, 55 F.3d 1462, 1465 
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(9th Cir. 1995), while Guidelines commentary provides that 
“[l]oss shall not include . . . interest of any kind,” U.S.S.G. 
§ 2B1.1 Application Note 3(D)(i).  In each example, the 
MVRA not only tolerates but requires a restitution 
calculation that exceeds Guidelines loss. 
That is not to suggest that a large discrepancy will always 
be without significance.  An unexplained discrepancy may, 
in certain cases, facilitate a defendant’s clear-error challenge 
to his or her restitution obligation—though we caution 
against overreliance on a discrepancy, as it does not indicate 
which figure, restitution or Guidelines loss, might be 
erroneous.6  Or, an unexplained discrepancy not rooted in 
statutory differences might provide a hint that the district 
court included a non-cognizable form of loss in its restitution 
calculation.  But to reiterate our holding: A discrepancy, 
standing alone, does not establish legal error. 
III. Clear-Error Challenge  
We now turn to and reject Artur’s clear-error challenge.  
In the district court, “[a]ny dispute as to the proper amount 
or type of restitution shall be resolved by the court by the 
preponderance of the evidence,” with the government 
bearing “[t]he burden of demonstrating the amount of loss 
sustained by a victim as a result of the offense.”  18 U.S.C. 
§ 3664(e).  In resolving such a dispute, the district court must 
rely on “evidence that possesses sufficient indicia of 
 
6 Here, for instance, the government suggested at oral argument that the 
district court’s Guidelines loss calculation constituted procedural error, 
before clarifying that it was not raising that argument on appeal.  
“Because the government did not take an appeal” on this issue and Artur 
“has nothing to gain from a higher advisory guidelines range,” we 
express no view on whether the district court committed procedural 
error.  United States v. Dokich, 614 F.3d 314, 320 (7th Cir. 2010). 
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USA V. DADYAN 
 
13 
 
reliability to support its probable accuracy.”  Anderson, 741 
F.3d at 951–52 (citation omitted); see also United States v. 
Waknine, 543 F.3d 546, 557–58 (9th Cir. 2008) (victim 
affidavits in question “were too summary and too conclusory 
to be sufficiently reliable in the face of [the defendant’s] 
objections”).  “[E]xact precision is not required and district 
courts do have a degree of flexibility in accounting for a 
victim’s complete losses.”  Anderson, 741 F.3d at 954.  
Accordingly, the district court is entitled to draw reasonable 
inferences when coming to its restitution calculation.  See 
United States v. Walter-Eze, 869 F.3d 891, 914–15 (9th Cir. 
2017). 
On appeal, a factual challenge to a restitution calculation 
is subject to clear-error review.  Gagarin, 950 F.3d at 607.  
Broad, unsupported contentions of inaccuracy will generally 
not overcome that deferential standard of review.  A 
defendant-appellant must undermine the reliability of 
specific evidence on which the district court relied or 
undermine specific factual underpinnings of the calculation.  
See Waknine, 543 F.3d at 557–58 (clear error to rely on 
“summary and . . . conclusory” victim affidavits when 
defendant challenged affidavits’ assertions); United States v. 
Matsumaru, 244 F.3d 1092, 1108–09 (9th Cir. 2001) (clear 
error to not discount from calculation the value that the 
victim did receive in the fraudulent transaction). 
Here, the district court elected not to calculate restitution 
at the time of sentencing and instead ordered supplemental 
briefing.  The government largely rested on its prior papers 
and a declaration that attached as an exhibit a table of over 
one hundred fraudulently obtained loans the government 
contended were connected to the conspiracy.  Artur argued 
in his supplemental brief that “many of th[e] loans” in the 
government’s table “involv[ed] real companies” and that it 
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USA V. DADYAN 
is “unclear whether the loans were fraudulent at all or 
whether the third party simply had a [legitimate ] 
connection” to one of the co-conspirators.  In a written order, 
the district court accepted the $17.7 million sum supported 
by the government’s table.  Addressing Artur’s argument, 
the court explained that all the loans in the table “are 
connected to the conspiracy” in “a variety of ways.”  The 
table includes loans that were obtained via applications 
submitted in co-conspirators’ own names, using co-
conspirators’ known aliases, and from IP addresses traced to 
co-conspirators’ homes.  Proceeds from included loans were 
traced to bank accounts and entities controlled by co-
conspirators.  And the loans included in the table supported 
the bank and wire fraud counts on which the jury convicted. 
On appeal, Artur again suggests in passing that it is 
“unclear” whether some loans included in the restitution 
amount were “fraudulent at all” and described the 
government’s table as resting on “cryptic summaries that did 
not explain [the loans’] illegality.”  Artur does not identify 
any particular loans that he thinks were legitimate; nor does 
he identify which particular “summaries” are so “cryptic” 
that the loans they describe cannot be connected to the 
conspiracy.  Moreover, Artur does not challenge any of the 
district court’s detailed factual findings that connected the 
loans in the table to the conspiracy.  Accordingly, Artur fell 
far short of establishing that the district court clearly erred in 
calculating restitution. 
IV. Due Process and Jury-Trial Right 
Artur argues that his Fifth and Sixth Amendment rights 
to due process and a jury trial require that a jury (not a district 
judge) find all facts underpinning restitution beyond a 
reasonable doubt (not by a preponderance of the evidence).  
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15 
 
Artur concedes that our precedent forecloses this argument, 
and he raises it before this panel only to preserve it.  See 
United States v. George, 949 F.3d 1181, 1188 (9th Cir. 
2020); United States v. Green, 722 F.3d 1146, 1148–51 (9th 
Cir. 2013). 
V. Joint and Several Liability  
Vahe requests a limited remand instructing the district 
court to amend his judgment and commitment order to 
reflect that his restitution obligation runs jointly and 
severally with that of his trial co-defendants.  The MVRA 
provides the district court with two options where it “finds 
that more than 1 defendant has contributed to the loss of a 
victim”: The “court may make each defendant liable for 
payment of the full amount of restitution or may apportion 
liability among the defendants.”  18 U.S.C. § 3664(h) 
(emphasis added).  Here, the district court determined in an 
order addressing the restitution obligations of four of Vahe’s 
co-defendants that joint and several liability is appropriate.  
The judgment and commitment order for each of those four 
defendants further specifies that their restitution obligations 
run jointly and severally.  Yet Vahe’s judgment and 
commitment order does not so specify.  The government 
concedes on appeal that Vahe’s restitution obligation runs 
jointly and severally and that a limited remand would be 
appropriate.  Accordingly, we remand Vahe’s case on this 
narrow ground and instruct the district court to amend 
Vahe’s judgment and commitment order to specify, as 
everyone agrees, that his restitution obligation runs jointly 
and severally with those of his four trial co-defendants. 
CONCLUSION 
For the above reasons, we AFFIRM Vahe’s and Artur’s 
restitution obligations, except that we VACATE AND 
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REMAND for the district court to amend Vahe’s judgment 
and commitment order to specify that his obligation runs 
jointly and severally.  We address in separately filed 
memorandum dispositions Vahe and Artur’s arguments 
regarding their jury convictions and Artur’s arguments 
regarding his sentencing. 
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