United States District Court, N.D. Georgia, Atlanta Division
OPINION AND ORDER
WILLIAM S. DUCFFEY, JR. UNITED STATES DISTRICT JUDGE
matter is before the Court on the Government's Motion
in Limine to Admit Evidence Under Rule 404(b) of the
Federal Rules of Evidence , and Betiluz Suarez's
Motion to Strike Surplusage from the Indictment .
March 8, 2017, a Northern District of Georgia grand jury
returned a 13-count Indictment charging Defendants Betiluz
Suarez (“Ms. Suarez”), Jose F. Polanco, and
Alexander Alayo with various offenses in connection with
their roles in a fraudulent marriage scheme, in violation of
Title 18, United States Code, Sections 371 and 1546, and
Title 8, United States Code, Sections 1324 and 1325(c).
(). Specifically, the Indictment alleges that Ms. Suarez
arranged several of the fraudulent marriages, served as the
notary public for documents related to the marriages, and
coached co-conspirators who engaged in the marriages in
evading detection by immigration officials. All the
Defendants are accused of committing these criminal acts in
exchange for payments from the aliens who hoped to attain
lawful status in the United States by marrying Cuban
nationals. The Indictment alleges that the Defendants'
conspiracy spanned from in or around April 16, 2012, through
in or about March 2017.
Motion in Limine, the Government alleges that on or
about October 19, 2009, and January 29, 2010, Ms. Suarez
arranged fraudulent marriages separate from those alleged in
the Indictment. The Government seeks to introduce evidence at
Ms. Suarez's trial in the form of testimony from D.
Rodriguez and A. Lopez, both Uruguayan aliens, whom the
Government alleges were fraudulently wed to Cuban nationals
in a scheme Ms. Suarez orchestrated in a similar fashion to
the indicted offenses. The Government anticipates that Mr.
Rodriguez and Ms. Lopez will testify that Ms. Suarez: (1)
arranged the fake marriages by introducing the couples; (2)
advised the couples to live together for a time and open
joint bank accounts to avoid detection; (3) notarized
immigration documents that were required for the aliens to
obtain a change in their legal status in the United States;
and (4) received payment for arranging the fake marriages.
( at 5). Both proposed witnesses admitted to government
agents that they married Cuban nationals to attain legal
status in the United States.
Legal Standard Regarding Prior Bad Acts Evidence
Rule of Evidence 404(b) ‘is a rule of inclusion, and .
. . accordingly 404(b) evidence, like other relevant
evidence, should not be excluded when it is central to the
prosecution's case.'” United States v.
Eckhardt, 466 F.3d 938, 946 (11th Cir. 2006) (citing
United States v. Jernigan, 341 F.3d 1273, 1280 (11th
Evidence of a crime, wrong, or other act is not admissible to
prove a person's character in order to show that on a
particular occasion the person acted in accordance with the
character. . . . This evidence may be admissible for another
purpose, such as proving motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake,
or lack of accident.
Evid. 404. “Evidence is admissible under Rule 404(b)
if: (1) it is relevant to an issue other than the
defendant's character; (2) the prior act is proved
sufficiently to permit a jury determination the defendant
committed the act; and (3) the evidence's probative value
cannot be substantially outweighed by its undue prejudice,
and it must satisfy Federal Rule of Evidence 403.”
Eckhardt, 466 F.3d at 946.
Analysis Regarding Mr. Rodriguez's and Ms.
Lopez's Proposed Testimony
The Witness Testimony is Susceptible to Sufficient
admit evidence of extrinsic acts under Rule 404(b), there
must be an adequate basis for the jury to conclude that the
defendant actually committed the extrinsic acts sought to be
admitted. See United States v. Miller, 959 F.2d
1535, 1538 (11th Cir.1992) (en banc). “The prosecution
can introduce evidence of a defendant's otherwise
admissible acts if the jury could find by a preponderance of
the evidence that the acts did in fact occur.”