                               UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                               No. 10-5251


UNITED STATES OF AMERICA,

                        Plaintiff – Appellee,

          v.

DMITRY DYUGAEV,

                        Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Raymond A. Jackson, District
Judge. (2:10-cr-00068-RAJ-DEM-1)


Submitted:     June 29, 2011                 Decided: August 22, 2011


Before MOTZ, KING, and SHEDD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Maureen Leigh White, Richmond, Virginia, for Appellant. Neil H.
MacBride, United States Attorney, Alexandria, Virginia and
Joseph E. DePadilla, Assistant United States Attorney, Norfolk,
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            A federal jury convicted Dmitry Dyugaev of conspiracy

to commit marriage fraud, in violation of 8 U.S.C. § 1325(c)

(2006); to knowingly make false statements under oath relating

to naturalization, in violation of 18 U.S.C.A. § 1015(a) (West

2006 & Supp. 2011); to present to any officer of the naval

service a false claim, in violation of 18 U.S.C. § 287 (2006);

and to unlawfully procure or attempt to procure naturalization

of a person or citizenship, in violation of 18 U.S.C. § 1425(a)

(2006),   all    in    violation     of    18    U.S.C.      §    371       (2006).        The

district court sentenced Dyugaev to time served plus three years

of supervised release and he now appeals.                     For the reasons that

follow, we affirm.

            Dyugaev first argues that the district court erred in

denying    his    motion      to   dismiss        based      on       the      statute     of

limitations.          For    federal      offenses,         “no       person     shall     be

prosecuted, tried, or punished for any offense, not capital,

unless the indictment is found or the information is instituted

within    five   years      next   after       such   offense         shall     have     been

committed.”       18    U.S.C.     § 3282       (2006).          “A    prosecution         for

conspiracy is timely if, during some portion of the limitations

period,    (1)   the     agreement     between        the    conspirators            was    in

existence; and (2) at least one overt act in furtherance of that

conspiratorial        agreement    occurred.”         United          States    v.    United

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Med. & Surgical Supply Corp., 989 F.2d 1390, 1398 (4th Cir.

1993) (citing Grunewald v. United States, 353 U.S. 391, 396-97

(1857)).      Therefore, the government need only prove that “at

least one overt act in furtherance of the conspiracy occurred

within five years of the indictment.”                          United Med., 989 F.2d at

1398   (citations omitted); see also United States v. Head, 641

F.2d   174,       177    (4th       Cir.     1981)      (noting        general    rule      that

government        must    prove      an     overt       act    in    furtherance       of    the

conspiracy        committed         within    limitations            period).         We     have

thoroughly reviewed the record and conclude that the district

court did not err in holding that the prosecution was not barred

by the statute of limitations.

             Dyugaev       next       argues        that       there    was      insufficient

evidence     to    support      the        conviction.          We     review     a   district

court’s decision to deny a Fed. R. Crim. P. 29 motion for a

judgment of acquittal de novo.                  United States v. Smith, 451 F.3d

209,   216    (4th       Cir.       2006).          A    defendant        challenging        the

sufficiency       of     the    evidence      faces        a    heavy    burden.           United

States v. Beidler, 110 F.3d 1064, 1067 (4th Cir. 1997).                                      The

verdict of a jury must be sustained “if, viewing the evidence in

the light most favorable to the prosecution, the verdict is

supported by ‘substantial evidence.’”                          Smith, 451 F.3d at 216

(citations omitted).                Substantial evidence is “evidence that a

reasonable        finder       of    fact     could        accept       as    adequate       and

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sufficient to support a conclusion of a defendant’s guilt beyond

a reasonable doubt.”         Id. (internal quotation marks and citation

omitted).    Furthermore,         “[t]he    jury,      not   the   reviewing     court,

weighs     the    credibility       of     the    evidence       and    resolves     any

conflicts in the evidence presented.”                   Beidler, 110 F.3d at 1067

(internal quotation marks and citation omitted).                        “Reversal for

insufficient evidence is reserved for the rare case where the

prosecution’s failure is clear.”                 Id. (internal quotation marks

and citation omitted).

             To    sustain    a    conviction          for   conspiracy    to    commit

marriage fraud under 8 U.S.C. § 1325(c), the Government had to

prove that (1) Dyugaev knowingly and voluntarily entered into an

agreement to enter into a marriage; (2) the marriage was entered

into for the purpose of evading a provision of the immigration

law;   and   (3)    Dyugaev       knew     or    had    reason     to   know    of   the

immigration laws.        See United States v. Islam, 418 F.3d 1125,

1128 (10th Cir. 2005); see also United States v. Chowdhury, 169

F.3d 402, 405-06 (6th Cir. 1999).                      Our review of the record

leads us to conclude that there was substantial evidence from

which the jury could conclude that Dyugaev committed the charged

offense.

             Finally, Dyugaev argues that the district court erred

in admitting evidence that he had a fraudulent social security

card when he was arrested pursuant to Fed. R. Evid. 404(b).                          We

                                            4
review a district court’s determination of the admissibility of

evidence under Rule 404(b) for abuse of discretion.                                 United

States v. Queen, 132 F.3d 991, 995 (4th Cir. 1997).                       An abuse of

discretion     occurs       only     when        “the     [district]     court      acted

arbitrarily    or    irrationally         in     admitting       evidence.”         United

States v. Williams, 445 F.3d 724, 732 (4th Cir. 2006) (internal

quotation marks and citation omitted).                       Rule 404(b) prohibits

the admission of “[e]vidence of other crimes, wrongs, or acts

. . . to prove the character of a person in order to show action

in conformity therewith.”            Fed. R. Evid. 404(b).              Such evidence

is “admissible for other purposes, such as proof of motive,

opportunity, intent, preparation, plan, knowledge, identity, or

absence of mistake.”         Id.     Rule 404(b) is an inclusionary rule,

allowing evidence of other crimes or acts to be admitted, except

that which tends to prove only criminal disposition.                          See Queen,

132 F.3d at 994-95.

             For    such    evidence        to    be     admissible,     it    must    be

“(1) relevant to an issue other than the general character of

the defendant; (2) necessary to prove an element of the charged

offense; and (3) reliable.”               United States v. Hodge, 354 F.3d

305,   312   (4th    Cir.    2004)    (citing           Queen,   132   F.3d    at   997).

Additionally, the probative value of the evidence must not be

substantially       outweighed       by     its     prejudicial        effect.        Id.

(citing Fed. R. Evid. 403).               “Prejudice, as used in Rule 403,

                                            5
refers    to    evidence   that   has   an   ‘undue   tendency   to   suggest

decision on an improper basis, commonly, though not necessarily,

an emotional one.’”        Queen, 132 F.3d at 994 (citations omitted).

The district court did not abuse its discretion in admitting the

social security card as it was relevant and necessary to proving

Dyugaev’s intent to commit the offense, and its probative value

was not substantially outweighed by its prejudicial effect.

               Accordingly, we affirm the judgment of the district

court.     We dispense with oral argument because the facts and

legal    contentions    are   adequately     presented   in   the   materials

before the court and argument would not aid in the decisional

process.



                                                                      AFFIRMED




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