United States v. Terabelian

105 F.4th 1207

UNITED STATES of America, Plaintiff-Appellee, v. Marietta TERABELIAN, aka Marietta Abelian,aka Viktoria Kauichko, Defendant-Appellant.

No. 21-50291

United States Court of Appeals, Ninth Circuit

Argued and Submitted May 13, 2024 Pasadena, California

Filed June 27, 2024

Appeal from the United States District Court for the Central District of California, Stephen V. Wilson, District Judge, Presiding, D.C. No. 2:20-cr-00579-SVW-2

David M. Lieberman (argued), Christopher Fenton, and Jeremy R. Sanders, Trial Attorneys, Appellate & Fraud Sections, Criminal Division; Lisa H. Miller, Deputy Assistant Attorney General; Nicole M. Argentieri, Acting Assistant Attorney General; United States Department of Justice, Washington, D.C.; Bram M. Alden, Assistant United States Attorney Chief; Scott Paetty, United States Attorney Deputy Chief, Major Frauds Section; Daniel G. Boyle, Assistant United States Attorney; E. Martin Estrada, United States Attorney; Office of the United States Attorney, Los Angeles, California; for Plaintiff-Appellee.

Narai Sugino (argued) and Ethan A. Balogh, Balogh & Co. APC, San Francisco, California; Jerry Kaplan (argued), Kaplan Kenegos & Kadin, Beverly Hills, California; for Defendants-Appellants.

Before: Ronald Lee Gilman,^* Ronald M. Gould, and Salvador Mendoza, Jr., Circuit Judges.

OPINION

GILMAN, Circuit Judge:

Marietta Terabelian, while awaiting sentencing after being found guilty of conspiracy to commit bank and wire fraud, conspiracy to commit money laundering, and numerous individual bank-and-wire-fraud violations, removed her location-monitoring device and fled to Montenegro. During the time that she was a fugitive and before the FBI located her, her attorneys filed the present appeal on her behalf.

Terabelian argues on appeal that the district court erroneously applied a sentencing enhancement and relied on tainted information when calculating her restitution amount. The government avers that Terabelian's appeal should be dismissed under the fugitive-disentitlement doctrine. It also disputes, in the alternative, the merits of her appeal. For the reasons set forth below, we DISMISS Terabelian's appeal under the fugitive-disentitlement doctrine. Endeavoring to be comprehensive, however, we also conclude that Terabelian's claims on appeal are without merit. Had we declined to apply the fugitive-disentitlement doctrine, we therefore would have affirmed the district court's sentence and restitution order.

I. BACKGROUND

Shortly after the COVID-19 pandemic began, Congress authorized the Paycheck Protection Program and the Economic Injury Disaster Loan Program to provide emergency loan relief. Businesses seeking assistance from the programs were required to submit supporting documentation, including the business's tax forms, payroll data, number of employees, and Employer Identification Number, and the applicant's name, birthdate, and Social Security number.

In October 2020, Terabelian and her husband, Richard Ayvazyan, were stopped and detained after passing through customs at the Miami International Airport. FBI agents had begun investigating the couple in June 2020 after connecting them to a Los Angeles-based conspiracy involving fraudulent applications for millions of dollars of COVID-19 relief loans.

By the time that Terabelian and Ayvazyan were stopped in Miami, the FBI had determined that nearly 100 loans were disbursed to fake names and fake businesses with falsified records associated with Terabelian, Ayvazyan, and several other coconspirators. The couple was detained at the Miami International Airport, where FBI agents interviewed them for several hours and searched their belongings. The search produced a credit card in the name of "Viktoria Kauichko" that was in Terabelian's wallet and text messages on Terabelian's phone in which she purported to be Kauichko. Evidence discovered later in the investigation revealed that Kauichko was in fact a Ukrainian foreign-exchange student who was last in the United States in September 2011.

Terabelian and Ayvazyan were then arrested and held in a Miami jail. A criminal complaint was filed that same day in the United States District Court for the Central District of California, alleging that the couple had engaged in an elaborate conspiracy to commit bank and wire fraud.

Terabelian made two recorded calls from the jail telephone. In the first, she spoke with a family member and stated that "me and Rich are both at the Miami Jail," and she urged the recipient to "try to clean, clean the house as much as you can." Terabelian revealed in the second call that the agents had "found a card," and she again instructed the recipient to "[c]lean the house as much as you can."

The couple appeared before a federal magistrate judge in Miami two days after their arrest and were released on bond. Shortly thereafter, FBI agents executed a search warrant, seeking evidence of the fraudulent loans at the couple's California home. A laptop, cell phones, jewelry, and gold coins were seized. Photographs of credit cards in the name of Viktoria Kauichko and numerous financial records were also recovered.

Several of the agents, moreover, reported witnessing Terabelian throwing an object into the bushes as they drove up her driveway. That object, a grocery bag containing nearly $450,000 in cash, was also seized. Just one month after being detained in Miami, Terabelian was indicted, alongside three other codefendants.

That indictment was later dismissed when a superseding indictment was filed in March 2021. Eight individuals were charged as involved in the conspiracy, including Terabelian and Ayvazyan. Terabelian was charged with conspiracy to commit bank and wire fraud, conspiracy to commit money laundering, aggravated identity theft, and numerous counts of bank and wire fraud. The superseding indictment alleged that the conspirators had filed at least 151 fraudulent loan applications seeking a total of $21.9 million in COVID-19 relief loans, and that they had actually received over $18 million.

Terabelian and Ayvazyan thereafter filed four joint motions to suppress all of the evidence obtained at the Miami International Airport, alleging that the statements and physical evidence had been improperly taken in violation of their Fourth and Fifth Amendment rights. The district court denied each motion other than the motion based on Fifth Amendment grounds, which it granted in part. Specifically, the district court held that the Miami-based FBI agents had "actually coerced" Terabelian to disclose the passcode to her cell phone, in violation of her Fifth Amendment rights. All evidence retrieved from Terabelian's cell phone in Miami, including the text messages in which she purported to be Kauichko, was accordingly suppressed.

Before the trial began in June 2021, four of the conspirators accepted plea deals. Terabelian and Ayvazyan declined to do so, and instead moved the district court for relief under Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972), which would prevent any information obtained from compelled statements from being used against them at trial. Because the district court had already concluded that there had been a Fifth Amendment violation, it determined that the couple was entitled to a Kastigar hearing, but it deferred the hearing until after trial.

At trial, the government presented evidence demonstrating that the intricate conspiracy, by which over $18 million was obtained fraudulently through falsified records and laundered through multiple bank accounts, was connected to the eight conspirators. Part of that process was the creation of "synthetic identities" used to fraudulently apply for over 100 loans. A synthetic identity is a false identity created through the combination of personally identifiable information, such as the Social Security numbers and dates of birth of real people, and fictitious information. Viktoria Kauichko was one of several synthetic identities that was used to apply for the COVID-19 relief loans. To link the Kauichko alias to Terabelian, the government pointed to four crucial pieces of evidence.

First, the government offered the credit card in Kauichko's name that was found in Terabelian's possession when she was stopped at the Miami International Airport. The government next presented text messages retrieved from Ayvazyan's phone that connected a gift for "his wife" to "Viktoria Kauichko." Third, the government offered photographs retrieved from phones that were seized during the November 2021 search of Terabelian's home. Those photographs connected Terabelian to Fiber One Media, one of the businesses through which "Kauichko" applied for COVID-19 relief loans. One such photograph depicted a text message sent from Ayvazyan in which he associated Kauichko with Fiber One Media and indicated that Kauichko was his wife. Finally, the government presented evidence demonstrating that at least $25,000 of the fraudulently obtained funds flowed from bank accounts associated with Kauichko and Fiber One Media into Terabelian's personal bank accounts.

The government also offered exhaustive evidence to establish Terabelian's complicity in the conspiracy. This evidence included the inculpatory phone calls that Terabelian made from the Miami jail, records of at least $664,169 passing through two bank accounts controlled by Kauichko, applications for COVID-19 relief funds submitted by Kauichko seeking over $1.4 million, and records for hundreds of thousands of dollars of fraudulently obtained funds being deposited into one of Terabelian's personal bank accounts and then moved to an escrow account for a down payment on a $3.25 million home in California.

After a 10-day trial, Terabelian was convicted on all of the bank-and-wire-fraud counts for which she was charged. But she was acquitted of aggravated identity theft for allegedly using her deceased father's name and information to apply for relief loans. After the...