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Court filing — C.D. Cal. No. 2:20-cr-00579 (Dkt. 1230, C.D. Cal.)

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     Case 2:20-cr-00579-SVW Document 1230 Filed 01/03/22 Page 1 of 9 Page ID #:19546



1     TRACY L. WILKISON
      Interim United States Attorney
2     SCOTT M. GARRINGER
      Assistant United States Attorney
3     Chief, Criminal Division
      SCOTT PAETTY (Cal. Bar No. 274719)
4     CATHERINE AHN (Cal. Bar No. 248286)
      BRIAN FAERSTEIN (Cal. Bar No. 274850)
5     Assistant United States Attorneys
      Major Frauds/Environmental and Community Safety Crimes Sections
6          1100/1300 United States Courthouse
           312 North Spring Street
7          Los Angeles, California 90012
           Telephone: (213) 894-6527/2424/3819
8          Facsimile: (213) 894-6269/0141
           E-mail:    Scott.Paetty@usdoj.gov
9                     Catherine.S.Ahn@usdoj.gov
                      Brian.Faerstein@usdoj.gov
10
      JOSEPH S. BEEMSTERBOER
11    Acting Chief, Fraud Section
      Criminal Division, U.S. Department of Justice
12    CHRISTOPHER FENTON
      Trial Attorney, Fraud Section
13    Criminal Division, U.S. Department of Justice
           1400 New York Avenue NW, 3rd Floor
14         Washington, DC 20530
           Telephone: (202) 320-0539
15         Facsimile: (202) 514-0152
           E-mail:     Christopher.Fenton@usdoj.gov
16
      Attorneys for Plaintiff
17    UNITED STATES OF AMERICA
18                            UNITED STATES DISTRICT COURT

19                       FOR THE CENTRAL DISTRICT OF CALIFORNIA

20    UNITED STATES OF AMERICA,              No. CR 20-00579-SVW-1

21               Plaintiff,                  GOVERNMENT’S RESPONSE TO FUGITIVE
                                             DEFENDANT RICHARD AYVAZYAN’S REQUEST
22                     v.                    FOR RETURN OF PASSPORTS AND CLARIFY
                                             HIS CONDITIONS OF RELEASE POST-
23    RICHARD AYVAZYAN,                      FLIGHT (ECF 1178)
        aka “Richard Avazian,”
24
                 Defendant.
25

26          Plaintiff United States of America, by and through its counsel
27    of record, the Interim United States Attorney for the Central
28    District of California, Assistant United States Attorneys Catherine
     Case 2:20-cr-00579-SVW Document 1230 Filed 01/03/22 Page 2 of 9 Page ID #:19547



1     Ahn, Scott Paetty, and Brian Faerstein, and Department of Justice

2     Trial Attorney Christopher Fenton, hereby files its response to

3     fugitive defendant Richard Ayvazyan’s request to clarify his

4     conditions of supervision post-flight (ECF 1178), pursuant to the

5     briefing schedule ordered by the Court on December 27, 2021 (ECF

6     1219).

7           The government’s opposition is based upon the attached
8     memorandum of points and authorities, the declaration of Catherine

9     Ahn, and the files and records in this case.

10     Dated:    January 3, 2021            Respectfully submitted,

11                                          TRACY L. WILKISON
                                            Interim United States Attorney
12
                                            SCOTT M. GARRINGER
13                                          Assistant United States Attorney
                                            Chief, Criminal Division
14
                                                  /s/
15                                          CATHERINE AHN
                                            SCOTT PAETTY
16                                          BRIAN FAERSTEIN
                                            Assistant United States Attorneys
17                                          CHRISTOPHER FENTON
                                            Department of Justice Trial Attorney
18
                                            Attorneys for Plaintiff
19                                          UNITED STATES OF AMERICA

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1                         MEMORANDUM OF POINTS AND AUTHORITIES

2     I.     Introduction

3            The Court previously made a finding that defendant Richard

4     Ayvazyan (“defendant”), who has ties to Armenia, voluntarily

5     absconded from supervision after noting on the record that – on the

6     eve of defendant’s sentencing - emergency passports for defendant’s

7     minor children to travel to Armenia had been unsuccessfully requested

8     from the U.S. State Department.        Counsel for defendant now asks the

9     Court to take action that would serve only to aid defendant’s flight
10    and facilitate defendant’s previously-failed attempt to extract his
11    children from the United States, namely:         (i) order United States
12    Probation and Pretrial Services (“Probation”) and the government to
13    return the children’s passports to the children; and (ii) “clarify”
14    that when it entered an order forfeiting the bail posted on
15    defendant’s behalf, that the Court had also terminated the conditions
16    of pretrial and presentence supervision imposed (including condition
17    that defendant surrender his children’s passports).           (ECF 1178 at
18    15.)

19           The Court should deny counsel’s first request as moot:          neither

20    Probation nor the government is in possession of the children’s

21    passports.

22           The Court should deny counsel’s second request because it is

23    unsupported by law or fact and would result in an absurd outcome:

24    rewarding a fugitive for successfully violating the Court’s order.

25    II.    Background and Procedural History

26           Defendant’s conditions of pretrial release included, among other

27    things, that defendant be subject to location monitoring, appear as

28    ordered by the Court, not commit new crimes, and surrender all
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1     passports and travel documents (including those of defendant’s three

2     minor children) to Probation 1 and not obtain new ones.          (ECF 47 at 1-

3     4.)   Defendant’s conditions also included a notice specifying that,

4     “a failure to appear may result in the forfeiture of any bail posted,

5     which means that defendant will be obligated to pay the full amount

6     of the bond, which may be enforced by all applicable laws of the

7     United States.”     (Id. at 5.)    Following defendant’s conviction at

8     trial, this Court denied the government’s request to remand him into

9     custody and permitted him to remain released under the same
10    conditions as prior to trial.
11          On or around August 29, 2021, defendant removed his location

12    monitoring bracelet and absconded from supervision while awaiting

13    sentencing.    (ECF 1121 ¶ 68.)     He left a note for his minor children,

14    whom he had abandoned, in which he wrote of what appears to be his

15    secret plan to reunite the family:

16          Without staying too much, we both love you more than anything in
            this world. We will be together again one day. This is not a
17          goodbye but a brief break from each other. Our family will
            always be strong and together no matter the circumstances. I
18
            will find a way, that’s a promise.
19
      (ECF 1065-3 (emphasis added).)       On November 9, 2021, a request for
20
      emergency passports was submitted to the State Department on behalf
21
      of defendant's minor children so that they may travel to Armenia.
22
      (ECF 1184 at 3:25-4:4.)
23
            Citing this request for the emergency passports, among other
24
      facts, the Court made a finding that defendant’s absence was
25
      voluntary, sentenced him in absentia, and forfeited the bail posted
26

27          1Despite the fact he was required by Court order to surrender
      his children’s passports, defendant had failed to do so, and efforts
28    by Probation to locate these documents were unsuccessful. (ECF
      1005.)
                                         2
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1     on his behalf.     (ECF 980, 1082, 1166, 1184 at 3:25-4:4.)

2           Following sentencing, at the end of a brief stating defendant’s

3     position with respect to restitution and forfeiture, counsel

4     requested that the Court effectively relieve defendant, who remains a

5     fugitive, of his obligation to comply with the Court-ordered

6     conditions of release.      (ECF 1178 at 15-16.)      Counsel asked the Court

7     to: (i) order Probation and the government to return the children’s

8     passports to the children; and (ii) “clarify” that when it entered an

9     order forfeiting the bail posted on defendant’s behalf, that the
10    Court had also terminated the conditions of pretrial and presentence
11    supervision imposed (including condition that defendant surrender his
12    children’s passports).      (Id.)
13          Counsel failed to proffer any facts in support of its request,

14    instead asserting only counsel’s purported “understanding” that “the

15    aforementioned passports or travel documents were either surrendered

16    or seized during the November 5, 2020 search warrant executions,

17    remain in the custody of Pretrial Services, Probation, or the

18    government, or have otherwise been lost.”         (Id.)

19    III. Counsel’s Request Is Based on a Factual Error

20          As with counsel’s previous motion to continue sentencing based

21    on the Ayvazyan family’s claim that defendant may have been abducted,

22    counsel makes a request on behalf of defendant’s minor children (whom

23    he does not represent) “without a single iota of supporting evidence”

24    explaining the circumstances surrounding counsel’s request.            (ECF

25    1094 at 3.)

26          Moreover, counsel’s asserted claim, which was unsupported by a

27    declaration, is factually incorrect.        Counsel incorrectly suggests

28    that defendant may have complied with his conditions of release by

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1     surrendering his children’s passports (which he did not), that the

2     children’s passports were at some point in time in the possession of

3     Probation or the government (which they were not), and that Probation

4     or the government may have lost them (which is factually incorrect).

5     None of these statements are true; defendant failed to provide the

6     children’s passports to Probation and further attempts to obtain them

7     were denied.    (ECF 1005.)

8     IV.   Counsel’s First Request Is Moot

9           Counsel’s first request is that the Court order Probation and
10    the government to return the children’s passports to the children.
11    However, as explained above, defendant never surrendered his
12    children’s passports and, as such, neither Probation nor the
13    government are in possession of them.         Accordingly, counsel’s first
14    request should be denied as moot.
15    V.    Counsel’s Second Request Is Unsupported by Law
16          Counsel’s argument in support of its second request lacks legal
17    basis.    Remarkably, counsel does not cite to any authority in support
18    of counsel’s second request.       (ECF 1178 at 15-16.)      Nor is the

19    government aware of authority compelling the result urged by counsel

20    here.

21            Counsel’s argument is also contrary to the law because it is

22    predicated on conflating this Court’s authority to forfeit bail (18

23    U.S.C. §§ 3142) – one of numerous bond conditions imposed on

24    defendant – with revocation of bond in its entirety and the

25    dissipation of those conditions upon arrest and detention (18 U.S.C.

26    § 3148).    A court may find that a defendant violated a condition of

27    release without revoking defendant’s release and ordering him

28    detained.    See e.g., United States v. Bararia, 2013 WL 1907782 at *1

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1     (D. Ct. Nev. March 12, 2013) (court declined to revoke defendant’s

2     pretrial release, despite finding defendant violated a condition of

3     release, because it found defendant was not a flight risk or a danger

4     to the community).      The statute itself contemplates an outcome where

5     a defendant is found to have violated a condition of release but

6     remains released subject to conditions.         Specifically, 18 U.S.C.

7     § 3148(b) states that, “If the judicial officer finds that there are

8     conditions of release that will assure that the person will not flee

9     or pose a danger to the safety of any other person or the community,
10    and that the person will abide by such conditions, the judicial
11    officer shall treat the person in accordance with the provisions of
12    section 3142 of this title and may amend the conditions of release
13    accordingly.”     Id.
14          Once a defendant’s release is revoked and he is detained

15    pursuant to 18 U.S.C. § 3148, those terms and conditions of release

16    are naturally no longer in force because defendant is no longer

17    released – he is in the custody of the United States.           Mere

18    forfeiture of all or part of a bond serving as collateral for

19    defendant’s compliance does not, however, vitiate a defendant’s

20    obligations to abide by the remaining terms and conditions.            A

21    requirement that defendant provide some kind of financial security is

22    one of many possible conditions of pretrial or presentence release

23    that a court may impose in order to assure itself that defendant will

24    abide by the terms and conditions of his release.           As the Supreme

25    Court noted in Stack v. Boyle, 342 U.S. 1 (1951), “The right to

26    release before trial is conditioned upon the accused’s giving

27    adequate assurance that he will stand trial and submit to sentence if

28    found guilty.     Like the ancient practice of securing the oaths of

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1     responsible persons to stand as sureties for the accused, the modern

2     practice of requiring a bail bond or the deposit of a sum of money

3     subject to forfeiture serves as additional assurance of the presence

4     of an accused.”     Id. at 4-5 (internal citations omitted) (emphasis

5     added).    See also United States v. Salerno, 481 U.S. 739, 742-743,

6     745 (1987) (upholding the constitutionality of the Bail Reform Act).

7            The Court ordered forfeiture of defendant’s bond. (ECF 1167.)

8     The Court, however, did not rescind the previously imposed conditions

9     of his pretrial and presentence release.         And for good reason –
10    termination of defendant’s conditions of release prior to the time he
11    self-surrenders to begin serving his sentence would reward him for
12    absconding.    (See, e.g., ECF 1005.)       It would also facilitate his
13    flight.    At defendant’s sentencing hearing, the Court made a finding

14    that the Ayvazyan family’s effort to obtain emergency passports for

15    defendant’s children to travel to Armenia further supported the

16    Court’s view that defendant had voluntarily absconded.           (ECF 1184 at

17    3:21-4:4.)    These efforts were consistent with defendant’s secret

18    plan to “find a way” to reunite him and his children after only a

19    “brief break”.     (ECF 1065-3.)    The Court should therefore deny

20    counsel’s request.

21    VI.    Counsel’s Requests Should Be Denied for Lack of Standing

22           Counsel purports to make its requests as part of an effort to

23    vindicate the rights of defendant’s children to travel.           (ECF 1178 at

24    16.)    However, while counsel asserts there is a new legal guardian

25    who assumed defendant’s parental rights (id.), counsel has neither

26    identified nor provided proof of that legal guardianship nor asserted

27    that counsel represents that guardian or the children.           Even if

28    counsel did, that would not negate the fact that – based on the lack

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1     of identification or proof of guardianship – the guardian does not

2     appear to be a party to the case before this Court.           There is thus no

3     one before this Court who has standing to act on behalf of the

4     children and the government is not aware of any attorney who

5     represents them.

6           Furthermore, to the extent any properly appointed legal guardian

7     wished to assert a claim with respect to the children’s travel

8     documents, this criminal case is not the appropriate forum for

9     seeking such relief, as the Court’s jurisdiction is limited to the
10    criminal case before it and the conduct of the defendants in this
11    case.
12    VII. Conclusion
13          For the reasons above, the government respectfully requests the
14    Court deny counsel for fugitive defendant Richard Ayvazyan’s requests
15    that the Court: (i) order Probation and the government to return the
16    children’s passports to the children; and (ii) “clarify” that when it
17    entered an order forfeiting the bail posted on defendant’s behalf,
18    that the Court had also terminated the conditions of pretrial and

19    presentence supervision imposed (including the condition that

20    defendant surrender his children’s passports).          The government

21    respectfully submits that instead, the Court should maintain the

22    conditions of release it imposed on defendant before he fled and

23    until such time as he is in custody.

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