United States of America v. Vardan Keshishyan

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
VARDAN KESHISHYAN,
Defendant-Appellant.
No. 22-50030
D.C. No.
2:19-cr-00567-PSG-1
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Philip S. Gutierrez, Chief District Judge, Presiding
Submitted December 6, 2022**
Pasadena, California
Before: R. NELSON, BADE, and FORREST, Circuit Judges.
Vardan Keshishyan appeals his conviction on two counts of structuring
transactions to evade currency reporting requirements, in violation of 31 U.S.C.
§ 5324. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
1. We review for abuse of discretion the district court’s admission of
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
FILED
DEC 9 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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evidence, including the decision “that the probative value of evidence exceeds its
potential for unfair prejudice.” United States v. Curtin, 489 F.3d 935, 943 (9th Cir.
2007) (en banc). Although we will engage in de novo review where the district
court “fails to engage in necessary Rule 403 balancing,” United States v. Wells,
879 F.3d 900, 914 (9th Cir. 2018), the district court engaged in the requisite
balancing here. The parties briefed the Rule 403 issue in their motions in limine.
See United States v. Ramirez-Jiminez, 967 F.2d 1321, 1326 (9th Cir. 1992) (trial
court “implicitly made the necessary [Rule 403] finding” when the government’s
trial memorandum “reminded the judge of the necessity of weighing probative
value and prejudice”); United States v. Lillard, 354 F.3d 850, 855 (9th Cir. 2003)
(district court “implicitly balanced” probative value and prejudice when defense
counsel “specifically and repeatedly argued” the evidence should be excluded
because it was “highly prejudicial” and had “no probative value” under Rule 403).
Further, when defense counsel revisited the issue before jury selection, the district
court stated that “all evidence” is prejudicial and that the evidence had “absolute
probative value” because it went “right to knowledge,” which was Keshishyan’s
defense. Therefore, the court “adequately weighed the probative value and
prejudicial effect of [the] proffered evidence.” United States v. Pineda-Doval, 614
F.3d 1019, 1035 (9th Cir. 2010) (quoting Boyd v. City of San Francisco, 576 F.3d
938, 948 (9th Cir. 2009)).

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2. The district court did not abuse its discretion in admitting Judge
Fujie’s comments about the legality of Keshishyan’s conduct. These comments
were highly probative because they undercut Keshishyan’s lack-of-knowledge
defense. And any potential for the jury to be misled by these comments was
mitigated by the jury instructions, which Keshishyan does not challenge. See
United States v. Reyes, 660 F.3d 454, 468 (9th Cir. 2011) (“Jurors are presumed to
follow the court’s instructions.”).
We need not resolve whether the district court abused its discretion in
admitting Judge Fujie’s statements expressing skepticism about Keshishyan’s
story. Given the evidence at trial, any error in admitting this evidence was
harmless. Shortly after his wife filed for divorce, Keshishyan opened new bank
accounts and, in a one-month period, made eleven cash withdrawals within $1,000
of the reporting limit. On one occasion, a bank employee informed Keshishyan
that she would have to fill out a currency transaction report to complete the
withdrawal; instead, Keshishyan canceled the withdrawal. Then, in his divorce
proceedings, Keshishyan represented that he had only $1,000 in assets. Shortly
after his divorce was finalized, Keshishyan opened another bank account and made
ten cash deposits—two per day, at two different banks, sometimes within minutes
of each other—in the amount of $9,000 each. Given this evidence, “it is more
probable than not” that any error in admitting the transcript “did not materially

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affect the verdict.” United States v. Torres, 794 F.3d 1053, 1063 (9th Cir. 2015)
(quoting United States v. Seschillie, 310 F.3d 1208, 1214 (9th Cir. 2002)).
3. Similarly, Keshishyan cannot show that the district court’s failure to
give a limiting instruction affected the outcome of his proceedings. See United
States v. Pelisamen, 641 F.3d 399, 404–05 (9th Cir. 2011) (under plain error
review, reversal is warranted only where “there has been (1) error; (2) that is plain;
(3) that affects substantial rights; and (4) where the error seriously affects the
fairness, integrity, or public reputation of judicial proceedings”).
AFFIRMED.

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