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Jeffrey H. Kim, Esq. (SBN: 218305) LAW OFFICES OF JEFFREY H. KIM 800 West 6th Street, Suite 1420 Los Angeles, California 90017 Attorney for Surety VARDAN MALKHASYAN

UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION UNITED STATES OF AMERICA, Plaintiff, ) ) ) ) ) ) ) ) ) ) ) ) NO.: CR 06-874-SJO ) NOTICE OF SURETYS

OPPOSITION TO V.

TIGRAN MALKHASYAN,

PLAINTIFFS MOTION AND MOTION FOR DECLARATION OF BAIL FORFEITURE AND ENTRY OF JUDGMENT OF DEFAULT; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF VARDAN MALKHASYAN IN SUPPORT THEREOF DATE: November 19, 2007 ) TIME: 8:30 A.M.

) ) ) ______________________________)

Defendant.

TO ALL PARTIES, THEIR REPRESENTATIVES, AND THE COURT: PLEASE TAKE NOTICE that on November 10, 2007, at 8:30 a.m. or as soon thereafter as the Court may consider it, in the courtroom of the Honorable S. James Otero, United States District Judge, located at Room 880, Roybal Federal Building, 255 East Temple Street, Los Angeles, California 90012, surety VARDAN MALKHASYAN
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will and hereby does oppose plaintiff United States of Americas motion for bail forfeiture and entry of judgment of default against defendant Tigran Malkhasyan and surety Vardan Malkhasyan in the amount of $300,000.00 (Motion). This opposition (Opposition) is based upon Fed.R.Crim.P. 46(f), the attached memorandum of points and authorities and exhibits, the files and the records of this case, and any further evidence or argument that the court, in its discretion, may permit. DATED: November 5, 2007 Respectfully submitted, JEFFREY H. KIM, ESQ. Attorney for Surety Vardan Malkhasyan

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MEMORANDUM OF POINTS AND AUTHORITIES I STATEMENT OF FACTS On November 8, 2006, Defendant Tigran Malkhasyan (defendant) made his initial appearance in this matter, after he was arrested on a complaint charging him with a criminal violation of conspiracy to commit wire fraud and food stamp fraud. CR 5. After a hearing,

the Court set a bond in the amount of $300,000, justified by an affidavit of surety with deeding of property from defendants brother, Vardan Malkhasyan (Surety). Id.; see also CR 9.

Defendant was indicted on November 28, 2006 (CR 18), and, pursuant to an agreement with the government (CR 56), pled guilty to several counts on May 22, 2007, the first day of the scheduled trial. 63). (CR

On November 28, 2006, pursuant to the governments motion and

request based on its fear that defendant was a flight risk, the Court also modified defendants bond to require real-time electronic monitoring. (see id.). The Suretys concerns about

remaining surety were resolved when the government requested and the court granted the real-time electronic monitoring. The Court

ordered defendant to appear for sentencing on September 24, 2007. (id.). The Government now alleges in its Motion that defendant disabled his electronic monitoring device. (see Motion, p. 3, lns. 19-20.) However, nowhere in its Motion does the government offer any proof or evidence that defendant himself disabled the device. In fact, the government has failed to provide any indicia,

proof or evidence whatsoever that defendant disabled the device or even more so, willfully disabled the device.
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Nowhere in plaintiffs Statement of Facts does it appear as to when defendant allegedly disabled his device. They only state

that a warrant was issued on September 14, 2007, and after was when defendant allegedly disabled the device. The government does not specify when they were first notified that the device was disabled despite the fact that real-time electronic monitoring was engaged. In fact, the government

actually visited defendant and Suretys residence sometime around September 11 or September 12, 2007, where they harassed and intimidated Surety and defendants frail and elderly parents, ages seventy-six and seventy-three for several hours over the course of the day, looking for defendant while communicating only in English to two senior citizens who are not fluent in English. Surety was not notified that a warrant had been issued until September 18, 2007 nor was he notified in real-time when the device was allegedly disabled. To date, the warrant for defendants arrest remains unexecuted, and defendants whereabouts are unknown to the government, despite the fact that the government had a real-time electronic monitoring device.

II ARGUMENT A BOND FORFEITURE SHOULD NOT BE ENTERED Rule 46 provides, in relevant part: (f) (1) The Court must declare the bail forfeited if a

condition of the bond is breached.

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A bail bond is a contract between the government and the defendant and his surety, who becomes the governments debtor upon forfeiture of the bond. (9th Cir. 1978). United States v. Plechner, 577 F. 2d 598

When there is a breach of a condition of the bond, United States v. United States v.

the district court shall declare a forfeiture. Abernathy, 757 F.2d 1012, 1015 (9th Cir. 1986); Stanley, 601 F.2d 380, 382 (9th Cir. 1979).

In the absence of evidence to the contrary, it can be assumed that a serious breach of a bail condition was voluntary. United States v. Frias-Ramirez, 670 F.2d 849, 853 (9th Cir. 1982). However, in this case, there is evidence that the breach may not have been voluntary. The Surety states that he suspected foul play after

receiving a phone call from an unknown person to find defendant at USC General Hospital. (See Declaration of Surety, p.2, lns. 23-27). Moreover, it is unknown to Surety at this time as to when the device was disabled, when the government was initially notified of the breach, and what the subsequent actions took place as a result of the alleged breach. These are facts that the Government is

requested to provide in order to debate the issue of voluntariness. Therefore, the Court cannot simply assume that the non-appearance was voluntary. However, as plaintiff points out, a district court may consider six factors when deciding whether to remit the forfeiture of a bond. These factors are (1) the defendants willfulness in

breaching a release condition, (2) the sureties participation in apprehending the defendant, (3) the cost, inconvenience and prejudice suffered by the government, (4) mitigating factors, (5) whether the surety is a professional or a member of the family or
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friend, and (6) the appropriateness of the amount of bond.

Not all

of the factors need to be resolved in the governments favor. United States v. Amwest Surety Insurance Co., 54 F.3d 601, 603 (9th Cir. 1995) In this case, the relevant factors indicate that the bond should be not be forfeited, and judgment not be entered against the defendant and surety. (1) Willfulness

The Government has not provided one piece of evidence to demonstrate that Defendant willfully violated his condition by absconding and failing to appear. Moreover, it has not met the burden of proof in alleging without any factual basis, that he also disabled his electronic monitoring device. The government

is merely concluding without any factual or evidentiary basis that there is any willfulness on the part of Defendant. Moreover, it is unknown to Surety at this time as to when the device was disabled, when the government was initially notified of the breach, and what the subsequent actions took place as a result of the alleged breach. These are facts that the Government is

requested to provide in order to debate the issue of willfulness. (2) Apprehension

Apprehension of the defendant is a factor that is relevant where the defendant fails to appear. Here the surety, who is not a law enforcement nor a private investigator, has tried to speak with members of his cultural community in order to find out any rumors or messages about said defendant. Surety is doing all he can but The responsibility for

defendant has not in fact been apprehended.

defendants apprehension should not fall on Suretys laps, but

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should be negated by the implementation of the real-time monitoring device. (3) Prejudice

The government has been prejudiced in this case by its inability to have defendant sentenced on the charges to which he pled guilty. But, this prejudice was caused also by the

contributory negligence of the Government because it too had a responsibility to locate said defendant, especially because of its use of technology to keep track of him which failed. Moreover, the

government could have negated the prejudicial effect if their devices had been working properly. (4) Mitigating Factors

If the bond was forfeited, the Surety, an assistant principal for Nightingale Middle School here in downtown Los Angeles, would have no home to go to. Even more importantly, his elderly parents

who are sick and frail, as further described in Suretys Declaration, would have no home to live in, and no further security for their impending rush of mountains and mountains of health expenses. If forfeited, the government would essentially be kicking out a professional educator and his two sick and elderly parents from their home because the governments real-time technology and monitoring device failed. This action cannot and should not be

what our government stands for. (5) Relationship The nature of the

The surety is defendants brother.

relationship between defendant and the Surety in this case does not excuse the surety from his obligation to pay in the event of
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defendants flight.

The fact that they are close brothers and the

fact that defendant knew at the time when the surety was signed about the dire consequences of absconding, makes it even more impossible to believe that Defendant would willingly leave his family in this type of terrible situation. (6) Appropriateness of the Amount of Bond

The amount of the bond in this case, $300,000, is entirely inappropriate. The Surety agreed to obligate himself in this amount at the time of defendants detention hearing, and continued to obligate himself at the time the bond was modified to include real-time electronic monitoring. (See Declaration of Surety). If this amount is forfeited, the Surety and his elderly parents will have no further funds, no home, and no hope. The government further alleges that [i]t is the suretys responsibility to ensure the defendant does appear and learn when he does not. United States v. Feliz-Meza, 825 F.2d 1334, 1335 (9th But, the government is erroneously

Cir. 1978 (sic) 1987);

relying on a now twenty-year old that was decided at a time when real-time electronic monitoring devices and other advanced technology were not available to the government. However, this is now 2007, and the government possesses and utilizes real-time monitoring devices in order to negate any chance of flight by the defendant. It negates the responsibility

the Surety has to ensure that the defendant appears; therefore, negating the caselaw in Feliz-Meza. Furthermore, the surety in Feliz-Meza was a professional bail bond company which has extensive business experience and personnel to ensure that a defendant appears. Here, however, the surety is

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defendants elder brother who is employed as an assistant principal for a LAUSD middle school in Los Angeles. The experiences for

these two highly different professions speak for themselves. Feliz-Meza should not be applicable in this matter. Yes, the surety is defendants brother, and yes, the surety did sign the affidavit. However, as the Surety states in his

declaration, he would not have continued on as Surety if not for the granting of the real-time electronic monitoring device. The

Surety has an overwhelming schedule, as it is, because he is the assistant principal at a middle school in downtown Los Angeles, as well as primary caretaker of his two sick and elderly parents who also reside in the same house that is being used as collateral in this matter. To require the Surety to ensure that the defendant

appear, under these factual circumstances in addition to the use of the advanced technology requested and provided by the government is wrong and out-dated reasoning. Surety respectfully requests that the Court deny the governments request to declare bond forfeiture and entry of default against defendant and Surety.

III CONCLUSION For the above reasons, Surety, Vardan Malkhasyan, requests that the court deny in whole plaintiffs motion. Alternatively, if the Court is inclined to grant the governments Motion, then Surety asks that the forfeiture be stayed for six months until the Government provides a full accounting as

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to why the real-time electronic monitoring failed to work in this matter, and to give the Surety time to attempt to locate defendant. Dated: November 5, 2007

Respectfully submitted, JEFFREY H. KIM, ESQ. Attorneys for Surety Vardan Malkhasyan

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