* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### FEB 26 2003 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. DAISY AGUILAR, a/k/a Eva Daisy Aguilar, Eva Alvarado-Mendoza, Eva Daisy Mendoza and Eva Daisy Mendoza-Deaguil, Defendant - Appellant. No. 01-4237 (D.C. No. 2:01-CR-239-01-K)

(D. Utah)

ORDER AND JUDGMENT *

Before KELLY , McKAY , and MURPHY , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument.1 Under a Presidential proclamation issued in Decembe r 2000, an illegal

alien could obtain resident alien status if he or s he lawfully married a United States citizen before April 30, 2001. -2- Defendant Eva Daisy Aguilar (“Aguilar”) was indicte d on one count of possession of ammunition by a restricted person in violation of 18 U.S.C. § 922(g)(1) and one count of aiding and abetting an i ndividual to knowingly enter into a marriage for the purpose of evading immigrat ion laws in violation of 8 U.S.C. § 1325(c) and 18 U.S.C. § 2. A jury found A guilar guilty of aiding and abetting marriage fraud and not guilty of possessio n of ammunition by a restricted person. Aguilar appeals, arguing that the districtcourt improperly admitted evidence of prior fraudulent marriage arrangements in violation of Rules 403 and 404(b) of the Federal Rules of Evidence. Exercisin g jurisdiction pursuant to 28 U.S.C. § 1291, this court affirms

. I. BACKGROUND Aguilar made arrangements for Kimberly Reeves (“Ree ves”) to marry Jesus Amaya (“Amaya”) in exchange for $5000, rent and uti lities, and payment for a divorce which would occur eighteen months after the marriage. Reeves was aware Amaya was in the United States illegally and needed to get married before April 30th for immigration purposes. 1 Prior to the wedding, Reeves and Amaya completed INS paperwork, with Aguilar’s assistance, and Reeves tried on wedding dresses at Aguilar’s house. Aguilar told R eeves that she and Amaya-3-

would have to live together for thirty days and, af terwards, Amaya would need to keep some belongings at the apartment and stay the night on occasion. Two days after meeting, Reeves and Amaya were married in Las Vegas, Nevada. Shortly after the wedding, Reeves wanted to “back out” of t he marriage. After an argument with her parents, the police were contacte d. Reeves falsely reported to the police that she had been kidnapped. During the kidnapping investigation, police discovered that Aguilar had arranged for the marriage of Reeves and Amaya. Aguilar and four others were indicted for aiding an d abetting an individual to knowingly enter into a marriage for the purpose of evading immigration laws. One week before trial, the government filed a notic e of intent to rely upon Rule 404(b) evidence. An amended and supplemented notic e of intent was submitted on the Friday before trial. In the notices, the go vernment announced its intention to introduce evidence through the testimony of at l east five witnesses that Aguilar advised the witnesses about false marriage arrangem ents, attempted to arrange at least five fraudulent marriages in order to evade i mmigration laws, and solicited one witness to provide potential brides for false m arriages. In addition, the government intended to introduce evidence that Agui lar previously aided and abetted illegal aliens to enter the United States a nd that Aguilar had illegally possessed other firearms and ammunition not chargedin the indictment.-4-

At trial, defense counsel objected to the notices o n the grounds that they were untimely, unspecific, and that the evidence so ught to be presented was more prejudicial than probative. The government argued that the evidence of the prior fraudulent marriage arrangements was offered to sho w a common scheme or plan. The district court overruled Aguilar’s objection inpart: it admitted the evidence of Aguilar’s prior fraudulent marriage arrangements but excluded evidence concerning the aiding and abetting and the firearm and ammunition possession as more prejudicial than probative.
II. DISCUSSION A. Rule 404(b) Notice Aguilar contends the district court should have exc luded the evidence of prior fraudulent marriage arrangements because the notice of intent was untimely and, therefore, prejudicial. Rule 404(b)’s notice provision states that “upon request by the accused, the prosecution in a crimin al case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any suchevidence it intends to introduce at trial.” Fed. R. Evid. 404(b). Thus, according to Rule 404(b), pretrial notice is required only when the defense requests s uch advance notice. United
States v. Tuesta-Toro , 29 F.3d 771, 775 (1st Cir. 1994) (stating defense must present a timely request to “alert the prosecution that the defense is invoking its-5-

specific right to pretrial notification” under 404( b)); United States v. Barnes , 49 F.3d 1144, 1148 (6th Cir. 1995) (concluding that Ru le 404(b) places an initial duty on the defense to request the provision of pri or bad acts evidence from the prosecutor); United States v. Vega , 188 F.3d 1150, 1154 (9th Cir. 1999) (noting that the notice requirement is not triggered until a request is made by the defendant). In this case, Aguilar did not request reasonable pr etrial notice of the government’s intention to rely on prior bad acts ev idence during trial. Thus, the government acted appropriately under Rule 404(b) wh en it submitted its notice of intent one week before trial because it was not obl igated to provide pretrial notice. Because there was no violation of Rule 404 (b) and Aguilar’s counsel declined to seek a continuance to deal with the evi dence, there was no error that resulted in prejudice. Aguilar further objected that the pretrial notice f iled by the government was not specific as to the witnesses and evidence to be admitted. Rule 404(b) requires the prosecution to disclose “the general nature” of evidence intended to be introduced. Fed. R. Evid. 404(b). Here, the gover nment apprised Aguilar of the names of the witnesses and the content of their tes timony. The supplemental notice specified in further detail the testimony of certain witnesses. The notices-6-

were more than sufficient to provide the “general n ature” of evidence sought to be admitted by the government under Rule 404(b). B. Admission under Rule 404(b) Aguilar argues that the district court improperly a dmitted evidence of prior fraudulent marriage arrangements under Rule 404(b) of the Federal Rules of Evidence. A district court’s decision to admit pri or bad acts evidence under Rule 404(b) is reviewed for an abuse of discretion. United States v. Viefhaus , 168 F.3d 392, 397 (10th Cir. 1999). Rule 404(b) provides:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in or der to show action in conformity therewith. It may, howev er, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accid ent. .

. . Fed. R. Evid. 404(b). This court has set forth the following four requirements for admitting evidence under Rule 404(b):

(1) the evidence must be offered for a proper purpose; (2) the evidence must be relevant; (3) the trial court must make a Rule 403 determination of whether the probative value of the similar acts evidence is substantially outweighed by its potential for unfair prejudice; and (4) pursuant to Fed. R. Evid. 105, the trial court shall, upon request, instruct the jury that evidence of similar acts is to be considered only for the proper purpose for which it is admitted. United States v. Roberts , 185 F.3d 1125, 1141 (10th Cir. 1999) (citation om itted).-7-

First, Aguilar alleges the evidence of prior fraudu lent marriage arrangements was not offered for a proper purpose. The government offered the evidence to establish a common scheme or plan of arranging fraudulent marriages to evade immigration laws. This court has acknowle dged that showing a common scheme or plan to demonstrate intent to commit a cr ime is a proper purpose under Rule 404(b). See id. Evidence that Aguilar made arrangements for fraud ulent marriages on previous occasions demonstrated Aguilar conducted an ongoing venture to assist illegal aliens to enter false mar riages in order to gain legal immigration status. In turn, Aguilar’s participati on in the operation or scheme showed she intended a fraudulent marriage to take p lace between Amaya and Reeves. Therefore, the prior bad acts evidence was offered for the proper purpose of showing intent to aid and abet through a common scheme or plan. Second, Aguilar contends the other marriage arrange ments were not relevant to the issue of whether the marriage betwe en Amaya and Reeves was legitimate. Evidence is relevant when it has a “te ndency to make the existence of any fact that is of consequence to the determinatio n of the action more probable or less probable than it would be without the evide nce.” Fed. R. Evid. 401. Specifically, prior bad acts evidence is relevant t o show an essential element of the charged offense. United States v. Shumway , 112 F.3d 1413, 1421-22 (10th Cir. 1997). To be liable for aiding and abetting, a defendant must willfully-8-

associate with a criminal venture and intend the ve nture succeed by taking action. United States v. Hanson , 41 F.3d 580, 582-83 (10th Cir. 1994). Here, the prior acts were relevant to demonstrate A guilar intended the arrangements to result in marriage, albeit fraudule nt, between Amaya and Reeves. Furthermore, evidence Aguilar engaged in prior frau dulent marriage arrangements was relevant to refute Aguilar’s defense theory that a legitimate marriage took place. Third, Aguilar essentially alleges that the testimo ny concerning prior fraudulent marriage arrangements was more prejudici al than probative because the evidence led the jury to convict on the basis of th e prior arrangements instead of the evidence concerning the marriage at issue. Rul e 403 permits a district court to exclude evidence if its probative value is subst antially outweighed by unfair prejudice. Fed. R. Evid. 403. Witnesses, including Reeves, testified as to Aguilar’s actions in arranging a fraudulent marriage between Reeves and Amaya. Amay a, however, testified that the marriage was legitimate. Because there was con flicting testimony, the evidence of Aguilar’s prior fraudulent marriage arr angements was probative as to whether the marriage between Amaya and Reeves was a lso fraudulent. In addition, the evidence provided context for the jury to determine whether the marriage at issue was legitimate. The offered testimony revealed that Aguilar-9-

was to pay $3000-$5000 for legal citizens to marry illegal aliens, that Aguilar provided INS paperwork, that Aguilar arranged meeti ngs to introduce prospective spouses, that Aguilar informed certain parties thatthe wedding needed to take place before April 30th to meet immigration deadlin es, and that Aguilar had wedding dresses available. Because the testimony w as similar to evidence the jury had before it, there was minimal risk that the jury would be distracted from the issues at trial. Although prejudicial, the evi dence was more probative in light of the allegations. Aguilar further alleges the trial court failed to c onduct any analysis under Rule 403. However, this court has previously ackno wledged that implicit Rule 403 determinations are not improper. United States v. Lazcano-Villalobos , 175 F.3d 838, 846 (10th Cir. 1999). In Lazcano-Villalobos , this court determined that the district court made an implicit Rule 403 ruling by admitting the evidence under Rule 404(b) in light of the defendant’s argum ent that the evidence was more prejudicial than probative. Id. at 847. Also, in United States v. Wilson , 107 F.3d 774 (10th Cir. 1997), this court concluded that the district court implicitly conducted a Rule 403 analysis because the court hadruled the evidence admissible under Rule 404(b). Id. at 783. Similarly, Aguilar’s defense counsel specifically argued that the evidence of the prior marriage arrangements was more prejudi cial than probative. The2 Aguilar concedes that a limiting instruction was pr ovided to the jury. -10- district court considered Aguilar’s argument and ex cluded some of the prior bad acts evidence, i.e. aiding and abetting and possess ion of firearms and ammunition, as more prejudicial than probative. Because the di strict court admitted the evidence of Aguilar’s prior fraudulent marriage arr angements under Rule 404(b) after defense counsel raised the Rule 403 argument, this court concludes that the district court made an implicit Rule 403 determinat ion. Accordingly, this court concludes that the districtcourt complied with the four requirements for admitting Rule 404(b) evidenc e when it permitted testimony concerning Aguilar’s prior fraudulent marriage arrangements. 2 Thus, the district court did not abuse its discretion.
III. CONCLUSION Because the evidence of prior fraudulent marriage a rrangements was offered for a proper purpose, relevant, more probat ive than prejudicial, and coupled with a limiting instruction, the district c ourt did not abuse its discretion in admitting the evidence under Rule 404(b) of the Federal Rules of Evidence. In addition, the notice of intent was sufficient underRule 404(b) because Aguilar-11-

failed to request reasonable pretrial notification from the government. Accordingly, we AFFIRM Aguilar’s conviction.
ENTERED FOR THE COURT

Michael R. Murphy Circuit Judge