Government's Response to Tamara Dadyan's Motion to Withdraw Guilty Plea (Document 1092)
Summary
Government's Response to Defendant Tamara Dadyan's Motion to Withdraw Guilty Plea in United States v. Richard Ayvazyan et al., No. 2:20-cr-579(A)-SVW, filed October 28, 2021 as Document 1092, with a hearing date of November 8, 2021. The government calls the evidence of her guilt overwhelming and says she signed the plea agreement and admitted the factual basis three times, once under oath. It says she does not challenge the plea colloquy or identify new evidence, and that her ineffective-assistance claim about one sentence in the factual basis is contradicted by the record. It asks the Court to deny the motion and proceed to sentencing on November 15, 2021.
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“Government's Response to Tamara Dadyan's Motion to Withdraw Guilty Plea (Document 1092).”
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Case 2:20-cr-00579-SVW Document 1092 Filed 10/28/21 Page 1 of 30 Page ID #:17809
1 TRACY L. WILKISON
Acting United States Attorney
2 SCOTT M. GARRINGER
Assistant United States Attorney
3
Chief, Criminal Division
4 SCOTT PAETTY (Cal. Bar No. 274719)
CATHERINE AHN (Cal. Bar No. 248286)
5 BRIAN FAERSTEIN (Cal. Bar No. 274850)
Assistant United States Attorneys
6 Major Frauds/Environmental and Community Safety Crimes Sections
1100/1300 United States Courthouse
7 312 North Spring Street
8 Los Angeles, California 90012
Telephone: (213) 894-6527/2424/3819
9 Facsimile: (213) 894-6269/0141
E-mail: Scott.Paetty@usdoj.gov
10 Catherine.S.Ahn@usdoj.gov
Brian.Faerstein@usdoj.gov
11
12 JOSEPH S. BEEMSTERBOER
Acting Chief, Fraud Section
13 Criminal Division, U.S. Department of Justice
CHRISTOPHER FENTON
14 Trial Attorney, Fraud Section
Criminal Division, U.S. Department of Justice
15 1400 New York Avenue NW, 3rd Floor
Washington, DC 20530
16
Telephone: (202) 320-0539
17 Facsimile: (202) 514-0152
E-mail: Christopher.Fenton@usdoj.gov
18
Attorneys for Plaintiff
19 UNITED STATES OF AMERICA
20
UNITED STATES DISTRICT COURT
21
FOR THE CENTRAL DISTRICT OF CALIFORNIA
22
UNITED STATES OF AMERICA, No. 2:20-cr-579(A)-SVW
23
Plaintiff, GOVERNMENT’S RESPONSE TO DEFENDANT
24 TAMARA DADYAN’S MOTION TO WITHDRAW
v. GUILTY PLEA
25
RICHARD AYVAZYAN, Hearing Date: November 8, 2021
26
aka “Richard Avazian” and Hearing Time: 11:00 a.m.
27 “Iuliia Zhadko,” Location: Courtroom of the Hon.
MARIETTA TERABELIAN, Stephen V. Wilson
28 aka “Marietta Abelian” and
Case 2:20-cr-00579-SVW Document 1092 Filed 10/28/21 Page 2 of 30 Page ID #:17810
1 “Viktoria Kauichko,”
ARTUR AYVAZYAN,
2 aka “Arthur Ayvazyan,” and
TAMARA DADYAN,
3
MANUK GRIGORYAN,
4 aka “Mike Grigoryan,” and
“Anton Kudiumov,”
5 ARMAN HAYRAPETYAN,
EDVARD PARONYAN,
6 aka “Edvard Paronian” and
“Edward Paronyan,” and
7 VAHE DADYAN,
8
Defendant.
9
10
Plaintiff United States of America, by and through its counsel
11
of record, the Acting United States Attorney for the Central District
12
of California, Assistant United States Attorneys Scott Paetty,
13
Catherine Ahn, and Brian Faerstein, and Department of Justice Trial
14
Attorney Christopher Fenton, hereby files its Response to Defendant
15
Tamara Dadyan’s Motion to Withdraw Guilty Plea (ECF 998).
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Case 2:20-cr-00579-SVW Document 1092 Filed 10/28/21 Page 3 of 30 Page ID #:17811
1 This response is based upon the attached memorandum of points
2 and authorities, the declaration of Christopher Fenton and
3 accompanying exhibits, Fred Minassian’s responses to the government’s
4 interrogatories which are filed hereto under seal pursuant to the
5 Court’s order entered October 8, 2021 (ECF 1048), the files and
6 records in this case, and such further evidence and argument as the
7 Court may permit.
8 Dated: October 28, 2021 Respectfully submitted,
9 TRACY L. WILKISON
Acting United States Attorney
10
11 SCOTT M. GARRINGER
Assistant United States Attorney
12 Chief, Criminal Division
13 /s/
CATHERINE AHN
14 SCOTT PAETTY
15 BRIAN FAERSTEIN
Assistant United States Attorneys
16 CHRISTOPHER FENTON
Department of Justice Trial Attorney
17
Attorneys for Plaintiff
18 UNITED STATES OF AMERICA
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Case 2:20-cr-00579-SVW Document 1092 Filed 10/28/21 Page 4 of 30 Page ID #:17812
1 TABLE OF CONTENTS
2 Contents
3 TABLE OF CONTENTS...................................................i
4 TABLE OF AUTHORITIES...............................................ii
5 MEMORANDUM OF POINTS AND AUTHORITIES................................1
6 I. Introduction...................................................1
7 II. Statement of Facts.............................................2
8 A. The Overwhelming Evidence of Defendant’s Guilt............2
9 B. The Court’s Orders Denying Defendant’s Motions to
Suppress..................................................6
10
C. The Plea Agreement........................................8
11
D. The Change of Plea Hearing...............................12
12
E. Defendant’s Motion to Withdraw Her Guilty Plea...........15
13
III. Argument......................................................17
14
A. Defendant Fails to Meet Her Burden of Demonstrating a
15 Fair and Just Reason to Withdraw Her Guilty Pleas........18
16 IV. Conclusion....................................................25
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Case 2:20-cr-00579-SVW Document 1092 Filed 10/28/21 Page 5 of 30 Page ID #:17813
1 TABLE OF AUTHORITIES
2 CASES
3 Muth v. Fondren, 676 F.3d 815 (9th Cir. 2012)......................19
4 United States v. DeSimone, 736 F. Supp. 2d 477 (D.R.I. 2015)...23, 24
5 United States v. Ensminger, 567 F.3d 587 (9th Cir. 2009)...........17
6 United States v. Garcia, 401 F.3d 1008 (9th Cir. 2005).............18
7 United States v. Hyde, 520 U.S. 670 (1997).........................17
8 United States v. Jones, 472 F.3d 1136 (9th Cir. 2007)..............17
9 United States v. Joslin, 434 F.2d 526 (D.C. Cir. 1970).............18
10 United States v. McTiernan, 546 F.3d 1160 (9th Cir. 2008)..........18
11 United States v. Miller, 953 F.3d 1095 (9th Cir. 2020).............22
12 United States v. Nostratis, 321 F.3d 1206 (9th Cir. 2003)..........25
13 United States v. Ortega–Ascanio, 376 F.3d 879 (9th Cir. 2004)......18
14 United States v. Rios–Ortiz, 830 F.2d 1067 (9th Cir. 1987).........17
15 United States v. Ross, 511 F.3d 1233 (9th Cir. 2008)...............19
16 United States v. Treadwell, 593 F.3d 990 (9th Cir. 2010)...........22
17 United States v. Wells, 804 F. App’x 515 (9th Cir. 2020)...........22
18 OTHER AUTHORITIES
19 Fed. R. Crim. P. 11........................................17, 20, 24
20 U.S.S.G. § 1B1.3(a)(1)(B)......................................22, 23
21 U.S.S.G. § 2B1.1(b)(1)(K)..........................................22
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Case 2:20-cr-00579-SVW Document 1092 Filed 10/28/21 Page 6 of 30 Page ID #:17814
1 MEMORANDUM OF POINTS AND AUTHORITIES
2 I. Introduction
3 The evidence of defendant Tamara Dadyan’s (“defendant”) guilt is
4 overwhelming. It is the same evidence the government offered at the
5 trial of her co-defendants and led to their conviction on every count
6 with which she is also charged. There is no serious question that
7 had she proceeded to trial, she too would have been found guilty on
8 all counts. It is also highly likely that she would have been found
9 guilty for an attempted bank fraud scheme she committed while on
10 release awaiting trial. This charge, which is unique to her and
11 carries with it a significant risk of a substantial sentence of
12 imprisonment consecutive to any other term, is supported by audio
13 recordings of telephone calls she made from her personal telephone.
14 The government, however, agreed to dismiss the attempted bank fraud
15 count as part of a plea agreement pursuant to which defendant Tamara
16 Dadyan pleaded guilty to conspiracy and aggravated identity theft
17 counts.
18 Despite signing the plea agreement and thrice admitting to the
19 factual basis (once while under oath), on the eve of sentencing
20 defendant Tamara Dadyan now moves to withdraw her plea. She does not
21 challenge the adequacy of the Rule 11 plea colloquy or identify
22 newly-discovered evidence or intervening circumstances that could
23 meet her burden to demonstrate a fair and just reason to permit
24 withdrawal. Instead, she attempts to manufacture an ineffective
25 assistance of counsel claim based on an issue she purports to have
26 with respect to a single sentence in the factual basis. Her claim is
27 contradicted by the record, and, even if credited, would not change
28 that she has admitted all of the elements of the offenses and that
Case 2:20-cr-00579-SVW Document 1092 Filed 10/28/21 Page 7 of 30 Page ID #:17815
1 the Guidelines to which her admissions have exposed her would not
2 change. She has not, therefore, established a fair and just reason
3 to withdraw her plea. The Court should deny her motion and proceed
4 to sentence her along with her co-defendants on November 15, 2021.
5 II. Statement of Facts
6 A. The Overwhelming Evidence of Defendant’s Guilt
7 Although defendant Tamara Dadyan claims that the statement in
8 the factual basis for her plea linking her to all 151 fraudulent loan
9 applications at issue in this case was untrue, the evidence – all of
10 which was provided to her in discovery – clearly showed otherwise and
11 established her knowing participation in the overall conspiracy. On
12 November 5, 2020, federal law enforcement agents arrested defendant
13 Tamara Dadyan and her husband, defendant Artur Ayvazyan, and searched
14 their home on Weddington Street pursuant to a valid warrant. (ECF 20
15 and 5 (Initial Appearance of Tamara Dadyan and Artur Ayvazyan,
16 respectively) and ECF 297 (Order Denying Motion to Suppress as to
17 Artur Ayvazyan and Tamara Dadyan).) The search yielded overwhelming
18 evidence of their involvement in a conspiracy to fraudulently obtain
19 COVID-19 disaster relief funds and launder the proceeds. 1
20 Specifically, the government seized voluminous records,
21 including handwritten notes, checks, and copies of identification
22
23
1A detailed discussion of some of the items seized from the
24 Weddington residence, as well as some of the text messages seized
from defendant Tamara Dadyan and Artur Ayvazyan’s phones, can be
25 found in ECF 387 (Government’s Motion in Limine to Admit Evidence
Inextricably Intertwined with the Charged Offenses), 441 (Reply in
26 Support), and 793 (Government’s Opposition to Defendant Artur
Ayvazyan’s Rule 29 and 33 Motions) (denied in ECF 875 (rejecting
27 defendant’s argument and noting that “there was overwhelming evidence
of [defendant Artur Ayvazyan’s] guilt and that “[t]he evidence in
28 this case does not preponderate heavily against the verdict.
Instead, it preponderates heavily in favor . . .”).).
2
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1 documents and immigration records bearing the names and pictures of
2 individuals other than defendant Tamara Dadyan and her husband, as
3 well as their phones. Defendant Tamara Dadyan’s phone contained
4 voluminous text messages between herself and defendant Richard
5 Ayvazyan detailing the inner workings of the conspiracy, including
6 texts and attachments specific to many of the synthetic identities
7 that were central to the crimes charged (including Iuliia Zhadko,
8 Viktoria Kauichko, Anton Kudiumov, and Liudmyla Kopytova).
9 (Government Trial Exhibit (“GEX”) 10 at 1–70.) Among other things,
10 these texts discussed how to submit fraudulent PPP and EIDL
11 applications; how to obtain and falsify Employer Identification
12 Numbers (“EINs”) for businesses in PPP and EIDL applications; and how
13 to create fake payroll reports. (Id.)
14 In her text messages to defendant Richard Ayvazyan, defendant
15 Tamara Dadyan also repeatedly made statements inculpating herself.
16 She even joked about the harmful impact her crimes had on the federal
17 government and its disaster relief efforts, including about
18 bankrupting the United States. (GEX 10 at 4 (“They r never gonna
19 have enough money America needs to file bk”); GEX 10 at 7-8 (“Yah man
20 we need to do the max we can now u understand market Gonna crash[.]
21 And we can use the same names[.]”); GEX 10 at 13 (“No they kept
22 hanging up I will wake up early call[.] I was like on hold for ever
23 bro[.] Kept calling back today was disaster[.] Just like the loan
24 they r giving lol[.]”).)
25 Defendant Tamara Dadyan’s phone also contained a substantial
26 amount of other evidence of her extensive role in the loan fraud,
27 including:
28
3
Case 2:20-cr-00579-SVW Document 1092 Filed 10/28/21 Page 9 of 30 Page ID #:17817
1 • digital photographs of California driver’s licenses in the
names of Iuliia Zhadko, Armen Inijian, Anna Dzukaeva, Alak
2 Mikaelian, Diana Saakyan, and Leoncio Galver, all of which
3 were names used to obtain fraudulent PPP and EIDL loans (GEX
13.b);
4
• an email from an email account associated with defendant
5 Richard Ayvazyan detailing Iuliia Zhadko’s purported personal
information, addresses, and employment history (including at
6
Mod Interiors Inc., which was used to fraudulently obtain PPP
7 and EIDL loans) (GEX 13.b);
8 • checks in the names of Anna Dzukaeva, Diana Saakyan,
Montadrath, and Am & Am Financial Services, all of which were
9 identities and business names used to obtain fraudulent PPP
10 and EIDL loans (GEX 13.c);
11 • screenshots and digital photographs showing evidence of
fraudulent EIDL applications submitted through the U.S. Small
12 Business Administration (“SBA”) website on behalf of Artur
Ayvazyan, Tamara Dadyan, Anna Dzukaeva, Roza Avakian, Alak
13 Mikaelian, Liudmyla Kopytova, Mykhail Diuzhenko, Ara
14 Haritunian, and Hagop Bartoumian, all of which were names used
to submit fraudulent loan applications as part of the scheme
15 (GEX 13.d);
16 • fraudulent tax forms purportedly prepared by Alexander Fard, a
tax preparer whose name was stolen and repeatedly used in
17
connection with the conspiracy (GEX 13.e);
18
• mail addressed to Viktoria Kauichko, Medet Murat, and Runyan
19 Tax Service Inc., which were names used to obtain fraudulent
PPP and EIDL loans (GEX 13.f);
20
21 • web history reports showing efforts to find information about
anonymous VPN service with private internet access that would
22 have the effect of concealing a user’s identity and location
(GEX 13.h); and
23
24 • email correspondence between CV Escrow and “Anton” relating to
the purchase of the Imperial Court Residence, which was
25 purportedly purchased by the synthetic identity Anton Kudiumov
using stolen COVID-19 disaster relief funds (GEX 13.i).
26
27 The phone belonging to defendant Tamara Dadyan’s husband,
28 defendant Artur Ayvazyan, contained more evidence of their role in
4
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1 the conspiracy, including, among other things, templates for creating
2 fake identification documents (GEX 24.a), digital photographs of
3 dozens of fake California driver’s licenses and Social Security cards
4 (including many of the same names used to obtain fraudulent PPP and
5 EIDL loans described above) (GEX 26.b), screenshots and digital
6 photographs showing evidence of fraudulent EIDL applications
7 submitted through the SBA website (GEX 24.d), and digital photographs
8 of bank records and banking information using the names of several
9 individuals and companies who submitted fraudulent PPP and EIDL loan
10 applications (GEX 24.e).
11 The government also seized voluminous physical evidence from
12 defendant Tamara Dadyan and Artur Ayvazyan’s home on Weddington
13 Street, including, among other things, dozens of fake California
14 driver’s licenses, Social Security cards, and credit cards, including
15 for individuals whose names were used to fraudulently apply for PPP
16 and EIDL loans (GEX 57.a); dozens of fraudulent COVID-19 disaster
17 relief loan applications (GEX 57.e); and blank checks and other
18 records for dozens of bank accounts that received stolen COVID-19
19 disaster relief money (GEX 57.g). 2
20 The digital and physical evidence seized from defendant Tamara
21 Dadyan’s phone and home comprised a significant part of the
22 government’s case-in-chief at trial against her co-defendants Artur
23 Ayvazyan, Richard Ayvazyan, Marietta Terabelian, and Vahe Dadyan.
24 This evidence was in addition to all of the other evidence admitted
25
26 2 At defendants Tamara Dadyan and Artur Ayvazyan’s home, agents
also found official looking rubber stamps, including stamps for the
27 Clerk of the United States Bankruptcy Court for the Central District
of California, Los Angeles Registrar-Recorder/County Clerk, the Los
28 Angeles Superior Court, and numerous notaries. (ECF 207-1, ¶ 13, Ex.
13.)
5
Case 2:20-cr-00579-SVW Document 1092 Filed 10/28/21 Page 11 of 30 Page ID #:17819
1 at trial, including evidence seized from phones belonging to Artur
2 Ayvazyan, Richard Ayvazyan, Marietta Terabelian (GEX 16a-b, 19a-e,
3 24a-e), summary chart exhibits detailing the flow of stolen PPP and
4 EIDL loan money, including through bank accounts controlled by
5 defendants Tamara Dadyan and Artur Ayvazyan (GEX 115), and summary
6 chart exhibits showing how defendants Tamara Dadyan and Richard
7 Ayvazyan had together created an assembly line of fraud by creating
8 and using fake documents in support of dozens of fraudulent loan
9 applications (GEX 116).
10 B. The Court’s Orders Denying Defendant’s Motions to Suppress
11 On March 15, 2021, defendants Tamara Dadyan and Artur Ayvazyan
12 jointly moved to suppress the evidence seized during the search of
13 their home, including the digital evidence on their phones and the
14 physical evidence described above. (ECF 149.) By that date,
15 defendants and their counsel had had ample time to review the
16 evidence seized from their home. The physical evidence seized from
17 defendants Tamara Dadyan and Artur Ayvazyan’s home was made available
18 for inspection beginning December 17, 2020. (ECF 278-2.) A complete
19 forensic copy of defendants Tamara Dadyan’s and Artur Ayvazyan’s
20 respective phones was also produced to them on February 1, 2021
21 (months before the prosecution team had the opportunity to review
22 this evidence due to privilege review). (ECF 391-7, ECF 478 at 7.)
23 On April 27, 2021, the Court entered an order denying defendants
24 Tamara Dadyan and Artur Ayvazyan’s joint motion to suppress in all
25 material respects. (ECF 297.) The Court found the search warrant
26 for their home was valid and amply supported by probable cause.
27 (Id.) In addition to evidence they had applied for multiple
28 fraudulent loans using their home address, the Court detailed other
6
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1 evidence relating to the loan fraud that agents found when they had
2 searched trash left curbside outside defendants’ home. (Id. at 4-5
3 (citing Affidavit, In the Matter of the Search of [REDACTED]
4 Weddington Street Encino California 91316, No. 2:20-MJ-05286).) 3
5 On May 24, 2021, defendants Tamara Dadyan and Artur Ayvazyan
6 jointly moved a second time to suppress the evidence on the phones
7 seized during the search of their home. 4 (ECF 363.)
8 On June 10, 2021, the Court entered an order denying their
9 second motion, thereby allowing the government to offer evidence at
10 trial of, among other things, defendant Tamara Dadyan’s voluminous
11 inculpatory text messages with defendant Richard Ayvazyan about
12 numerous aspects of the fraudulent scheme. (ECF 478.)
13 Approximately two hours after the Court’s entry of its order,
14 Fred Minassian, counsel for defendant Tamara Dadyan, emailed counsel
15 for the government requesting a call to discuss the specific terms of
16 a potential plea offer. (Declaration of Christopher Fenton (“Fenton
17 Decl.”) ¶¶ 1-2, Ex. 1 (June 10, 2021 email chain between F. Minassian
18 and government counsel), Ex. 2 (June 10, 2021 ECF notice of entry of
19 Court order).) Mr. Minassian had first contacted the government
20 about the possibility of a potential plea agreement on behalf of
21 defendant Tamara Dadyan in April 2021, and those discussions
22 continued intermittently into early June 2021. (See Fenton Decl.
23 ¶ 3; see also Fred Minassian’s Responses to Government’s
24 Interrogatories (filed separately under seal) at Response to
25
3 Defendants Richard Ayvazyan and Marietta Terabelian made a
26 similar motion to suppress the evidence seized from their home,
including their phones (ECF 146), which the Court also denied (ECF
27 296).
28 4 Defendants Richard Ayvazyan and Marietta Terabelian also
joined in this motion.
7
Case 2:20-cr-00579-SVW Document 1092 Filed 10/28/21 Page 13 of 30 Page ID #:17821
1 Interrogatory Nos. 15 and 16. 5) Following the denial of defendant
2 Tamara Dadyan’s second motion to suppress, Mr. Minassian recommenced
3 those discussions in greater detail, and, over the course of the next
4 several days, the parties discussed the specific terms of a potential
5 plea. (Response to Interrogatory Nos. 16 and 17.) On June 14, 2021,
6 defendant Tamara Dadyan agreed to and signed a plea agreement. (ECF
7 525.)
8 C. The Plea Agreement
9 Pursuant to the plea agreement that defendant Tamara Dadyan
10 reviewed with her counsel and signed, she agreed to plead guilty to
11 one count of conspiracy to commit wire fraud and bank fraud (Count
12 1), one count of conspiracy to commit money laundering (Count 26),
13 and one count of aggravated identity theft (Count 24). (ECF 525 ¶¶
14 2.a, 5-9.) The plea agreement described in clear terms the mandatory
15 minimum and statutory maximum sentences for each offense to which she
16 was pleading guilty. (Id. ¶¶ 11-13). It also described in clear and
17 unambiguous terms the total maximum sentence for all of the offenses
18 to which she was pleading guilty, including the total maximum term of
19 imprisonment which is 52 years’ imprisonment. (Id. ¶ 14.) The
20
21
5 As previously disclosed to the Court and defendant Tamara
22 Dadyan, counsel Minassian is charged in United States v. Matosyan et
al., No. CR 17-480(A)-PSG. (ECF 95 at 2.) Counsel Minassian has
23 pleaded not guilty to the charges and trial is currently scheduled
for February 15, 2022 before the Honorable Philip S. Gutierrez, Chief
24 District Judge. (See Matosyan, ECF 645.) He remains an active
member of the State Bar of California and the Bar of the Central
25 District of California. On January 12, 2021, the Court held a
conference and found that defendant Tamara Dadyan was knowing and
26 aware of the potential conflict pertaining to her attorney, and the
Court further noted for the record that she voluntarily waived the
27 conflict. (ECF 110.) In an abundance of caution, however, the
government only cites to counsel Minassian’s Responses to the
28 Government’s Interrogatories where his statements are supported or
corroborated by other information.
8
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1 parties agreed to a Sentencing Guidelines calculation totaling 31
2 (before acceptance of responsibility). (Id. ¶ 21.) The parties
3 reserved their rights to argue that additional specific offense
4 characteristics, adjustments, and departures under the Sentencing
5 Guidelines are appropriate. (Id.)
6 The factual basis, which is nearly seven pages long, is
7 extremely detailed. (Id. ¶ 19.) It specifically identified many of
8 defendant Tamara Dadyan’s co-conspirators by name and described the
9 scope of the relevant conduct relating to the conspiracy counts to
10 include at least 151 fraudulent applications; explained the types of
11 false and fraudulent information used to obtain PPP and EIDL loans;
12 and listed several of the key synthetic or stolen identities used in
13 the fraud including Iuliia Zhadko, Viktoria Kauichko, and Anna
14 Dzukaeva. (Id.)
15 The factual basis also detailed the sources and significance of
16 the evidence found in defendant Tamara Dadyan’s home. For example:
17 • “Defendant further conspired and agreed with her husband,
Artur Ayvazyan, to create false and fraudulent
18 documentation in support of loans, including through the
19 use of templates for creating false and fraudulent
documents that were found on Artur Ayvazyan’s phone.”
20
• “Defendant further admits that records and items found at
21 her residence, at which she lived with co-defendant Artur
Ayvazyan, included: fake identification documents;
22
fraudulently obtained credit cards belonging to fake,
23 synthetic and stolen identities including names used to
apply for PPP and EIDL loans; checks and checkbooks in the
24 names of individuals and businesses who applied for PPP and
EIDL loans; copies of PPP and EIDL loan applications
25 including in her own name and the names of others; and fake
and stolen notary stamps and seals belonging to state and
26 federal courts.”
27
• “[T]ext messages obtained from defendant’s phone showed
28 that defendant explicitly discussed plans for the
9
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1 conspiracy with co-defendant Richard Ayvazyan, including
how to submit PPP and EIDL applications; how to obtain and
2 falsify Employer Identification Numbers (“EINs”) for
businesses in PPP and EIDL applications; and how to create
3
fake payroll reports.”
4
(Id.)
5
Defendant Tamara Dadyan certified that, among other things, she
6
had reviewed the plea agreement, discussed all of the terms with her
7
then-counsel Fred Minassian, and voluntarily agreed to the terms:
8
I have read this agreement in its entirety. I have had enough
9 time to review and consider this agreement, and I have carefully
and thoroughly discussed every part of it with my attorney. I
10 understand the terms of this agreement, and I voluntarily agree
to those terms. I have discussed the evidence with my attorney,
11 and my attorney has advised me of my rights, of possible
12 pretrial motions that might be filed, of possible defenses that
might be asserted either prior to or at trial, of the sentencing
13 factors set forth in 18 U.S.C. § 3553(a), of relevant Sentencing
Guidelines provisions, and of the consequences of entering into
14 this agreement. No promises, inducements, or representations of
any kind have been made to me other than those contained in this
15 agreement. No one has threatened or forced me in any way to
16 enter into this agreement. I am satisfied with the
representation of my attorney in this matter, and I am pleading
17 guilty because I am guilty of the charges and wish to take
advantage of the promises set forth in this agreement, and not
18 for any other reason.
19 (Id. at 29-30.) Mr. Minassian certified that he had reviewed and
20 discussed with defendant Tamara Dadyan the terms and consequences of
21 the plea agreement. 6 (Id. at 30-31.)
22 The benefits of the plea agreement to defendant Tamara Dadyan
23 were significant. In addition to a two-point reduction for
24 acceptance of responsibility, the plea agreement provided for the
25
26
6 Many of the statements that are the subject of Mr. Minassian’s
27 signed certification are corroborated by his responses to the
government’s interrogatories and the change of plea hearing. (See,
28 e.g., Response to Interrogatory Nos. 3, 8, 9, 16, 18, 19; June 14,
2021 Hr’g Tr. at 4:24-7:3.)
10
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1 dismissal of Count 33, which was an attempted bank fraud scheme
2 defendant Tamara Dadyan perpetrated while on pre-trial release. 7 The
3 evidence supporting that scheme included audio recordings of calls
4 she had placed using her personal telephone number to an FDIC-insured
5 financial institution while posing as Anna Dzukaeva to fraudulently
6 obtain access to stolen COVID-19 disaster relief funds she laundered
7 through an account she had opened under false pretenses. (Fenton
8 Decl. ¶ 4, Ex. 3.) This crime allegedly took place after she had
9 been initially indicted and was on release awaiting trial in this
10 case. Had she been convicted of Count 33 at trial, her offense level
11 would have increased from at least 31 to at least 34, plus an
12 additional two points to at least 36 in the absence of her acceptance
13 of responsibility offense level reduction, increasing the advisory
14 Guidelines range by at least 80 to 100 months’ imprisonment. 8 Such a
15 conviction would also constitute a violation of 18 U.S.C. § 3147,
16 resulting in an additional potential term of imprisonment of up to
17 ten years, to be served consecutive to any other custodial term.
18 Defendant Tamara Dadyan was informed of the sentencing considerations
19 relating to Count 33 and the benefit that would result from its
20
21 7 As part of the plea agreement, the government also agreed to
dismiss the substantive wire fraud and bank fraud counts; however,
22 dismissal of those particular counts did not impact the calculation
of the offense level under the Guidelines.
23
8 The government has filed a response to defendant Tamara
24 Dadyan’s Presentence Report arguing that her offense level should be
increased by seven to a total offense level of 38 based on her
25 aggravating role (3 levels), her possession of five or more means of
identification (2 levels), and the vulnerable victim enhancement (2
26 levels). These enhancements would apply regardless of whether
defendant pleaded guilty or was convicted at trial. (ECF 1001 at 2-
27 13.) If applied post-conviction at trial on all counts, defendant’s
offense level would have increased to 43 and her advisory guidelines
28 range would have increased from 188 to 235 months to life
imprisonment.
11
Case 2:20-cr-00579-SVW Document 1092 Filed 10/28/21 Page 17 of 30 Page ID #:17825
1 dismissal. (Fenton Decl. ¶ 5, Ex. 4 (“June 14, 2021 Hr’g Tr.”) at
2 14:9-16; Response to Interrogatory Nos. 8, 9, 15, 18.)
3 D. The Change of Plea Hearing
4 On June 14, 2021, the Court held a change of plea hearing during
5 which defendant Tamara Dadyan was sworn and the Court asked her a
6 series of probing questions to assure the Court that her guilty pleas
7 were voluntary and knowing. (See generally June 14, 2021 Hr’g Tr.)
8 The Court asked whether defendant Tamara Dadyan had enough time
9 to discuss her case and all possible defenses with Mr. Minassian and
10 whether she was satisfied with his representation. (Id. at 4:9-14.)
11 She responded in the affirmative to both questions. (Id.) The Court
12 then questioned Mr. Minassian, who confirmed he had indeed met with
13 her on several occasions. (Id. at 4:24-5:2.) Mr. Minassian further
14 confirmed he had “thoroughly” reviewed discovery. (Id. at 30:5-7.)
15 The Court asked whether defendant Tamara Dadyan had read,
16 understood, and discussed fully the plea agreement with Mr.
17 Minassian. (Id. at 5:10-17.) She responded in the affirmative to
18 all three questions. (Id.) The Court then questioned Mr. Minassian,
19 who stated he had reviewed the plea agreement “extensively” with
20 defendant and confirmed he was satisfied from his discussions with
21 his client that she fully understood all of the terms and conditions
22 in the plea agreement. (Id. at 5:18-7:3.)
23 At the direction of the Court, counsel for the government orally
24 reviewed certain aspects of the plea agreement in the presence of
25 defendant Tamara Dadyan. Specifically, counsel for the government:
26 • described the applicable mandatory minimum and statutory
maximum sentences for each offense to which she was
27 pleading guilty;
28
12
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1 • disclosed the total maximum sentence for all of the
offenses to which she was pleading guilty, including the
2 total maximum term of imprisonment which is 52 years’
3 imprisonment;
4 • set forth the parties’ agreement to certain applicable
sentencing factors that include a base offense level of 31
5 (before acceptance of responsibility); and
6
• explained the government would dismiss certain counts
7 against defendant at the time of sentencing, including
Count 33 which would have resulted in a plus-three offense
8 level enhancement, and recommend a minus two-level
reduction in the Guidelines offense level calculation at
9 sentencing provided defendant demonstrates acceptance of
10 responsibility.
11 (Id. at 8:1-14:16.) Counsel for the government also read aloud the
12 factual basis from the plea agreement, including the specific
13 provisions discussed and quoted above. (Id. at 15:1-23:6.)
14 At the conclusion of the reading of the factual basis, the Court
15 asked a series of specific questions of defendant Tamara Dadyan to
16 ensure she had actually committed the crimes for which she was
17 pleading guilty. Under oath, she admitted in Court to specific
18 details supporting her pleas of guilty to the conspiracy counts,
19 including the names of her co-conspirators; that she met with her co-
20 conspirators on several occasions to plan the crimes; that she
21 knowingly and voluntarily implicated her husband in crime; that
22 “Viktoria Kauichko” was a fake name used by defendant Richard
23 Ayvazyan; and that she set up a bank account using the name Anna
24 Dzukaeva which she controlled along with certain of her co-
25 conspirators. (Id. at 23:10-26:18.)
26 The Court also focused on a specific set of facts, namely that
27 defendant Tamara Dadyan had “submitted and caused to be submitted and
28 aided and abetted the submission of at least 151 fraudulent PPP and
13
Case 2:20-cr-00579-SVW Document 1092 Filed 10/28/21 Page 19 of 30 Page ID #:17827
1 EIDL applications as part of the conspiracy and scheme in which she
2 was a participant along with Richard Ayvazyan, Marietta Terabelian,
3 Artur Ayvazyan, Vahe Dadyan, and others.” (Id. at 17:4-9.) The
4 Court inquired about the purpose behind the inclusion of this
5 language and, after hearing the explanation from counsel for the
6 government and defense counsel’s concurrence, expressed its
7 understanding. Importantly, Mr. Minassian expressly stated that he
8 had discussed the purpose of including this language with defendant
9 Tamara Dadyan, who was present and standing next to Mr. Minassian,
10 and she did not state otherwise:
11 THE COURT: There is a section here following the part I just
read same page 20, it says you caused the submission of a 151
12 loan applications and attempted to receive 21 million and
received 18. I mean, that is in the plea agreement. But did
13
you know that at the time? Were you familiar with every loan
14 application in this case?
15 THE DEFENDANT: Not all of it, but –
16 THE COURT: So I mean why did the government put that in there?
17 THE GOVERNMENT: Your Honor, it's the position of the government
18 that given Ms. Dadyan's role in the conspiracy, it was
reasonably foreseeable to her that the scheme in the conspiracy
19 would cause the submission of --
20 THE COURT: That may very well be, but this is the factual basis
of the guilty plea. It seems that unless I'm misunderstanding,
21 that she wasn't tabulating and counting the applications. She
22 said she didn't know about all of them. She's admitted that she
knew about the other ones that are in the plea agreement. Why
23 was it necessary to put that in the plea agreement?
24 THE GOVERNMENT: That was for the basis of relevant conduct and
the loss, Your Honor.
25
THE COURT: So by agreeing to that, your position is that at the
26
time of sentencing then that becomes relevant conduct?
27
THE GOVERNMENT: Yes, Your Honor.
28
14
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1 THE COURT: Do you agree, Mr. Minassian?
2 MR. MINASSIAN: Yes, Your Honor, I do. That's the reason how I
explained it to my client.
3
4 THE COURT: I see.
5 (Id. at 26:19-27:23.)
6 Before concluding the change of plea hearing, the Court again
7 sought to confirm that defendant Tamara Dadyan’s guilty pleas were
8 voluntary, knowing and intelligent:
9 THE COURT: You realize, Ms. Dadyan, this is a very significant
day in your life. I'm just trying to make sure that you're doing
10 this with your eyes wide open. That is my concern. Are you?
11
THE DEFENDANT: Yes, Your Honor.
12
(Id. at 29:21 – 30:1.) The Court then made a finding that the guilty
13
plea was freely and knowingly made, accepted the plea, and ordered
14
preparation of a presentence investigation report. (Id. at 30:8-13.)
15
On August 3, 2021, when being interviewed by the U.S. Probation
16
and Pretrial Services Office, defendant Tamara Dadyan again reviewed
17
and stipulated to the factual basis. (ECF 959 ¶ 48.)
18
E. Defendant’s Motion to Withdraw Her Guilty Plea
19
Three weeks before her sentencing, after she had the opportunity
20
to review and object to her Presentence Investigation Report (ECF
21
959), defendant Tamara Dadyan moved to continue her hearing date and
22
withdraw her guilty plea. (ECF 998, 1002.) The motion to withdraw
23
her guilty plea is based on her claim that her former attorney, Mr.
24
Minassian, provided ineffective assistance in connection with her
25
plea, thus rendering the plea non-voluntary, and that she was
26
pressured to admit facts that were false, thus exposing her to a
27
substantially higher Guidelines range.
28
15
Case 2:20-cr-00579-SVW Document 1092 Filed 10/28/21 Page 21 of 30 Page ID #:17829
1 Specifically, defendant Tamara Dadyan now claims that she only
2 submitted four fraudulent applications and that she did not know
3 about most of the remaining 151 fraudulent applications much less
4 participate in them. 9 (ECF 998 at 5-8.) She further claims that she
5 advised Mr. Minassian that she was not responsible for all 151
6 fraudulent loans, but that Mr. Minassian pressured her to
7 nevertheless sign a plea agreement that contained a factual basis
8 they both knew to be factually inaccurate. (Id.) She asserts that
9 the purported intentional misstatement of facts relating to the 151
10 fraudulent loans became known to the government and the Court during
11 the change of plea hearing, but that the Court nevertheless accepted
12 the plea. 10 (Id. at 6-7.) According to the attorney presently
13 representing defendant, her former attorney, Mr. Minassian, should
14 have advised her to plead guilty without a plea agreement to only
15 certain counts and proceed to trial on the rest, which is how she now
16 wishes to proceed. (Id. at 10.) She claims that she would have
17 originally proceeded in this manner, but that her former attorney,
18
19
20 9 Defendant Tamara Dadyan’s claim that she only submitted four
fraudulent loan applications is obviously false and belied by the
21 overwhelming evidence the government offered at her co-defendants’
trial, including the evidence of dozens of fraudulent PPP and EIDL
22 loan applications found on her and her husband’s phones and in their
home (all of which is described above). Defendant’s false claim of
23 not knowing about any fraudulent loan applications other than the
four to which she now admits call into question her acceptance of
24 responsibility and may even constitute obstruction.
25 10 Defendant Tamara Dadyan also states that it was “unfortunate
that the United States insisted on the false factual basis in order
26 to permit the defendant to plea.” (ECF 998 at 12.) To the extent
she alleges the government knowingly asked defendant to sign and
27 plead guilty to a factual basis the government knew to be untrue,
that allegation is false. As discussed further herein, the
28 overwhelming evidence in this case supports the factual basis to
which the parties agreed as part of the plea agreement.
16
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1 Mr. Minassian, incorrectly advised that she had to either plead
2 guilty to all of the counts or none of them. (Id.)
3 III. Argument
4 A defendant may withdraw from a plea of guilty before sentencing
5 if “the defendant can show a fair and just reason for requesting the
6 withdrawal.” Fed. R. Crim. P. 11(d)(2)(B). Although the standard is
7 applied liberally, “[t]he burden of demonstrating such a fair and
8 just reason rests with defendant.” United States v. Jones, 472 F.3d
9 1136, 1141 (9th Cir. 2007).
10 A mere change of heart about the decision to plead guilty is not
11 a fair and just reason. United States v. Rios–Ortiz, 830 F.2d 1067,
12 1069 (9th Cir. 1987). The fair and just reason standard thus does
13 not permit a defendant to withdraw her guilty plea “simply on a
14 lark,” especially “[a]fter the defendant has sworn in open court that
15 [s]he actually committed the crimes, after [s]he has stated that
16 [s]he is pleading guilty because [s]he is guilty, after the court has
17 found a factual basis for the plea, and after the court has
18 explicitly announced that it accepts the plea.” United States v.
19 Hyde, 520 U.S. 670, 676 (1997). A guilty plea is a “grave and solemn
20 act, which is accepted only with care and discernment” and is not “a
21 mere gesture, a temporary and meaningless formality reversible at the
22 defendant’s whim.” Id. at 677 (citations omitted). Indeed, as the
23 Ninth Circuit has rightly held, “[o]nce the plea is accepted,
24 permitting withdrawal is, as it ought to be, the exception, not an
25 automatic right.” United States v. Ensminger, 567 F.3d 587, 593 (9th
26 Cir. 2009) (emphasis added).
27 In the Ninth Circuit, “[f]air and just reasons for withdrawal
28 include inadequate Rule 11 plea colloquies, newly discovered
17
Case 2:20-cr-00579-SVW Document 1092 Filed 10/28/21 Page 23 of 30 Page ID #:17831
1 evidence, intervening circumstances, or any other reason for
2 withdrawing the plea that did not exist when the defendant entered
3 h[er] plea.” See United States v. Ortega–Ascanio, 376 F.3d 879, 883
4 (9th Cir. 2004).
5 “Erroneous or inadequate legal advice may also constitute a fair
6 and just reason for plea withdrawal,” United States v. McTiernan, 546
7 F.3d 1160, 1167 (9th Cir. 2008), but only when the proper legal
8 advice of which the defendant was deprived “could have at least
9 plausibly motivated a reasonable person in [the defendant’s] position
10 not to have pled guilty.” United States v. Garcia, 401 F.3d 1008,
11 1011–12 (9th Cir. 2005). 11
12 A. Defendant Fails to Meet Her Burden of Demonstrating a Fair
and Just Reason to Withdraw Her Guilty Pleas
13
14 Defendant fails to meet her burden of showing that she received
15 erroneous or inadequate legal advice constituting a fair and just
16 reason for withdrawal of her guilty pleas.
17 First, defendant does not actually dispute that she committed
18 the crimes to which she pleaded guilty, namely (i) conspiring with
19 co-defendants Richard Ayvazyan, Marietta Terabelian, Artur Ayvayzan,
20
21 11Defendant’s purported articulation of the applicable standard
is wrong as a matter of law. (ECF 998 at 8-9.) Defendant cites a
22 composite of non-binding out-of-circuit cases mixing the different
23 standards that would apply to a motion to withdraw a guilty plea pre-
and post-sentencing. Defendant also cites and quotes legal
24 principles that have no application here. For example, she includes
the following quote from the D.C. Circuit’s opinion in United States
25 v. Joslin, 434 F.2d 526, 531 (D.C. Cir. 1970): “If the request was
made because appellant thought he had a defense, permission to
26 withdraw ‘should be rather freely granted.’” Defendant, however, did
not make the request to withdraw her guilty plea based on a newly
27
discovered defense. Rather, her request is based on a false claim
28 that her former counsel purportedly asked her to sign a factual basis
they both allegedly knew was inaccurate.
18
Case 2:20-cr-00579-SVW Document 1092 Filed 10/28/21 Page 24 of 30 Page ID #:17832
1 Vahe Dadyan, and other co-conspirators to fraudulently obtain PPP and
2 EIDL loans and launder the proceeds, and (ii) aggravated identity
3 theft based on her unauthorized use of Anna Dzukaeva’s name.
4 Moreover, the evidence in the record, which includes defendant’s
5 prior statements made during her signed plea agreement and Rule 11
6 plea colloquy and interview with Probation, satisfy the elements of
7 the crimes to which she pleaded guilty and thus support her guilty
8 plea. (ECF 525 ¶ 19; June 14, 2021 Hr’g Tr. at 15:1-23:6; ECF 959 ¶
9 48.) These prior statements are entitled to substantial weight and
10 support a finding that her guilty plea was knowing and voluntary and
11 valid. See, e.g., Muth v. Fondren, 676 F.3d 815, 821 (9th Cir. 2012)
12 (“Petitioner’s statements at the [Rule 11] plea colloquy carry a
13 strong presumption of truth.”); United States v. Ross, 511 F.3d 1233,
14 1236 (9th Cir. 2008) (“Statements made by a defendant during a guilty
15 plea hearing carry a strong presumption of veracity in subsequent
16 proceedings attacking the plea.”). In addition, these statements are
17 corroborated by the overwhelming evidence found in defendant’s phone
18 and home, as well as the other evidence described above that was
19 offered against the four co-defendants who went to trial and resulted
20 in guilty verdicts on every count for which defendant Tamara Dadyan
21 had been jointly charged with them. For this reason alone, the Court
22 should deny defendant’s motion.
23 Second, the sole statement that she now disputes relates only to
24 the number of fraudulent loans submitted as part of the conspiracy.
25 (ECF 998 at 6-7.). The number of fraudulent loans is not an element
26 of either conspiracy count. (ECF 525 ¶¶ 5-6, 8-9.) Nor is it an
27 element of the aggravated identity theft count. (Id. ¶ 7.) Contrary
28 to defendant’s claim, this statement is therefore not relevant to the
19
Case 2:20-cr-00579-SVW Document 1092 Filed 10/28/21 Page 25 of 30 Page ID #:17833
1 ultimate question of guilt for the crimes to which she pleaded
2 guilty. Moreover, the inclusion in the factual basis of the full
3 number of loans submitted by the conspiracy in which defendant Tamara
4 Dadyan played a central role was accurate and appropriate.
5 Third, Mr. Minassian did not provide ineffective assistance by
6 allowing defendant to sign a plea agreement that included a reference
7 to the number of fraudulent loan applications submitted as part of
8 the conspiracy. (ECF 525 at 16.) As part of its thorough Rule 11
9 inquiry, the Court specifically inquired about the purpose of
10 including this statement after defendant Tamara Dadyan said she had
11 not personally submitted all of the fraudulent loan applications.
12 (June 14, 2021 Hr’g Tr. at 26:19-27:23.) In response, counsel for
13 the government and Mr. Minassian both informed the Court that the
14 purpose was to provide a basis for relevant conduct and loss, which
15 was factually and legally correct. (Id.) Mr. Minassian further
16 informed the Court, in her presence, that he had explained the
17 purpose and significance of the statement to defendant Tamara Dadyan
18 (who said nothing to the contrary). (Id.) The Court accepted
19 counsel’s position, completed its inquiry and accepted defendant’s
20 guilty plea. (Id.) Mr. Minassian’s advice with respect to this
21 issue was thus neither erroneous nor inadequate.
22 The fact of Mr. Minassian’s explanation to defendant Tamara
23 Dadyan regarding the inclusion of the 151 loans in the factual basis
24 is further corroborated by Mr. Minassian’s responses to the
25 government’s interrogatories, which state that he explained to
26 defendant Tamara Dadyan that it was the government’s position that
27 the co-conspirators were responsible for all of the fraudulent loan
28 applications submitted as part of the conspiracy. (Response to
20
Case 2:20-cr-00579-SVW Document 1092 Filed 10/28/21 Page 26 of 30 Page ID #:17834
1 Interrogatory Nos. 6, 7, and 10.) Indeed, Mr. Minassian specifically
2 informed Defendant that her close connection to co-defendant Richard
3 Ayvazyan, as illustrated in significant part through her extensive
4 text message exchanges with him regarding the plans for the
5 conspiracy, underscored the government’s position that defendant
6 Tamara Dadyan was responsible through her integral role in the
7 conspiracy for the 151 loan applications. (Id.) As described in
8 section II.A above, the text messages (not to mention the volumes of
9 physical evidence found at her home) starkly illustrate defendant
10 Tamara Dadyan’s extensive knowledge of and involvement in the central
11 aspects of the conspiracy which ultimately comprised 151 loan
12 applications.
13 Fourth, defendant Tamara Dadyan also mistakenly claims that by
14 advising her to sign the factual basis (which stated that 151
15 fraudulent loan applications were submitted as part of the
16 conspiracy), Mr. Minassian exposed her to a substantially higher
17 Guidelines range. (ECF 998 at 7, 10.) Defendant is wrong: the loss
18 amount for which she is responsible is the same without regard to
19 whether she personally participated in or had direct knowledge of all
20 151 fraudulent loans applications. In her plea agreement, defendant
21 Tamara Dadyan stipulated to a loss amount over $9.5 million. (ECF
22 525 ¶ 21.) And when that stipulation was reviewed orally for the
23 Court and in her presence, she did not object. (June 14, 2021 Hr’g
24 Tr. at 13:21-14:8.)
25 In addition, it is well-established law that “[defendant’s]
26 guilty plea to the conspiracy [counts] allows [her] to be held liable
27 for the entire loss amount reasonably foreseeable within the scope of
28 [her] conspiratorial agreement, and not just for [her] criminal
21
Case 2:20-cr-00579-SVW Document 1092 Filed 10/28/21 Page 27 of 30 Page ID #:17835
1 activity.” United States v. Wells, 804 F. App’x 515, 518 (9th Cir.
2 2020). See also United States v. Treadwell, 593 F.3d 990, 1002–03
3 (9th Cir. 2010) (“[T]o comply with U.S.S.G. § 1B1.3(a)(1)(B), a
4 district court is not required to proceed item-by-item through a
5 complete list of all losses attributed to a criminal conspiracy and
6 to then make an individualized determination whether or not each item
7 was within the scope of the defendant's ‘joint undertaking’ and was
8 ‘reasonably foreseeable’ to that defendant.”), overruled on other
9 grounds by United States v. Miller, 953 F.3d 1095 (9th Cir.
10 2020), cert. denied, 141 S. Ct. 1085, 208 L. Ed. 2d 539 (2021).
11 Indeed the Court applied these same principles when determining the
12 amount of loss for which Tamara Dadyan’s co-defendant, Vahe Dadyan,
13 was responsible when sentencing him on October 18, 2021. Based on
14 the overwhelming evidence of Defendant’s guilt as reflected in the
15 digital and physical evidence described above and her close working
16 relationship to co-defendant Richard Ayvazyan at the heart of the
17 conspiracy, the government had (and has) a very strong argument by a
18 preponderance of the evidence that the 151 loan applications were
19 “within the scope of the jointly undertaken criminal activity, in
20 furtherance of that criminal activity, and reasonably foreseeable in
21 connection with that criminal activity.” U.S.S.G. § 1B1.3(a)(1)(B).
22 Such is the case whether or not the 151 loans were included in the
23 factual basis in defendant’s plea agreement.
24 In any event, the total loss resulting from the number of
25 fraudulent loan applications for which defendant Tamara Dadyan
26 personally participated or had direct knowledge far exceeds the $9.5
27 million threshold resulting in a 20-level loss enhancement under
28 U.S.S.G. § 2B1.1(b)(1)(K), even without taking into account the
22
Case 2:20-cr-00579-SVW Document 1092 Filed 10/28/21 Page 28 of 30 Page ID #:17836
1 foreseeability analysis for “jointly undertaken criminal activity”
2 under U.S.S.G. § 1B1.3(a)(1)(B). (Fenton Decl. ¶ 6, Ex. 5 (chart
3 detailing evidence of defendant’s participation and knowledge of
4 certain of the 151 fraudulent loan applications).) The amount of
5 loss in excess of $9.5 million is irrelevant for the purpose of the
6 Guidelines calculation so long as it is below $25 million - which it
7 is here pursuant to the plea agreement from which she seeks to
8 withdraw.
9 Thus, even if the factual basis did not include a reference to
10 all 151 fraudulent loan applications submitted in furtherance of the
11 conspiracy, defendant Tamara Dadyan’s Guidelines range would have
12 been the same. This fact shows that Mr. Minassian’s legal advice was
13 not erroneous. It also shows that, even if Mr. Minassian’s advice
14 had been somehow inadequate, a reasonable person in defendant Tamara
15 Dadyan’s position would have still pleaded guilty – taking advantage
16 of the substantial benefits afforded by the plea agreement – even if
17 she had received the proper advice of which defendant Tamara Dadyan
18 now claims she was purportedly deprived. Garcia, 401 F.3d at 1011–12.
19 Defendant cites a single case – United States v. DeSimone, 736
20 F. Supp. 2d 477 (D.R.I. 2015) – as authority for the proposition that
21 a district court should grant a motion to withdraw a guilty plea
22 where counsel advises a defendant to agree to a factual basis they
23 both know to be inaccurate. (ECF 998 at 10.) Defendant’s reliance
24 on DeSimone is misplaced. Unlike here, DeSimone maintained that he
25 was actually innocent of all the crimes charged and disagreed with
26 the factual basis in all material respects. Moreover, both DeSimone
27 and his counsel essentially agreed on the key facts underlying the
28 DeSimone’s claim of ineffective assistance, including that counsel
23
Case 2:20-cr-00579-SVW Document 1092 Filed 10/28/21 Page 29 of 30 Page ID #:17837
1 did not alert the court about DeSimone’s real-time disagreement with
2 the factual basis. In this case, however, defendant Tamara Dadyan’s
3 version of events is starkly different than Mr. Minassian’s
4 recollection and her own statements to the Court under oath.
5 Furthermore, the single issue at the core of her current motion arose
6 as a result of the Court’s thorough Rule 11 inquiry, and was resolved
7 in open court to the satisfaction of the Court and without any
8 disagreement from defendant Tamara Dadyan. She further admitted the
9 factual basis a third time when, nearly two months later, she met
10 with Probation for her presentence interview. If anything, DeSimone
11 underscores how and why Defendant fails to satisfy her burden of
12 demonstrating a fair and just reason to withdraw her plea.
13 Finally, defendant Tamara Dadyan’s claim that, on the day of the
14 change of plea hearing, Mr. Minassian “stated that the plea agreement
15 was for a level 23, 46-57 months, or ‘5.5 years’ in prison,” (ECF 998
16 at 8), is belied by the record. The plea agreement, which she signed
17 and certified having read “in its entirety” and “carefully and
18 thoroughly discussed” with her attorney (ECF 525 at 29-30), plainly
19 includes a Guidelines offense level calculation (before a reduction
20 for acceptance of responsibility) of 31 (id. at ¶ 21). During the
21 change of plea colloquy, the Court ensured that defendant Tamara
22 Dadyan had read, understood, and discussed fully the plea agreement
23 with Mr. Minassian. (June 14, 2021 Hr’g Tr. at 5:10-17.) The
24 government summarized salient points from the plea agreement,
25 including the Guidelines calculation resulting in offense level 31
26 before acceptance of responsibility. (Id. at 13:21-14:8.) And at
27 the conclusion of the hearing, the Court again sought to ensure that
28 defendant was entering her change of plea with her “eyes wide open,”
24
Case 2:20-cr-00579-SVW Document 1092 Filed 10/28/21 Page 30 of 30 Page ID #:17838
1 and she confirmed she was. 12 (Id. at 29:21 – 30:1.) Defendant’s claim
2 at the eleventh hour that she was informed of the wrong Guidelines
3 calculation is, as with her other claims discussed above, wholly
4 unsupported on the record. United States v. Nostratis, 321 F.3d
5 1206, 1211 (9th Cir. 2003) (affirming denial of motion to withdraw
6 guilty plea where defendant moved to withdraw his plea only after
7 learning from the presentence report that his likely sentencing range
8 was 135 to 168 months).
9 IV. Conclusion
10 For the aforementioned reasons, the government respectfully
11 submits that the Court should deny defendant Tamara Dadyan’s motion
12 to withdraw her guilty plea and instead proceed to sentencing her on
13 November 15, 2021.
14
15
16
17
18
19
20
21
22
23
24
25
26 Consistent with this record, Mr. Minassian explains in his
12
responses to the government’s interrogatories that he discussed
27 defendant Tamara Dadyan’s Guidelines calculations and sentencing
exposure in this case, including the specific offense level
28 calculation of 31 that was included in the plea agreement. (See
Responses to Interrogatory Nos. 8, 9, 18, 19, 20.)
25
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