                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                         FEB 26 2003
                                   TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                               Clerk

UNITED STATES OF AMERICA,

          Plaintiff - Appellee,

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

          Defendant - Appellant.


                              ORDER AND JUDGMENT *


Before KELLY, McKAY, and MURPHY, Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.




      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      Defendant Eva Daisy Aguilar (“Aguilar”) was indicted 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 individual to knowingly enter

into a marriage for the purpose of evading immigration laws in violation of 8

U.S.C. § 1325(c) and 18 U.S.C. § 2. A jury found Aguilar guilty of aiding and

abetting marriage fraud and not guilty of possession of ammunition by a restricted

person. Aguilar appeals, arguing that the district court improperly admitted

evidence of prior fraudulent marriage arrangements in violation of Rules 403 and

404(b) of the Federal Rules of Evidence. Exercising jurisdiction pursuant to 28

U.S.C. § 1291, this court affirms.

I.    BACKGROUND

      Aguilar made arrangements for Kimberly Reeves (“Reeves”) to marry Jesus

Amaya (“Amaya”) in exchange for $5000, rent and utilities, 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 Reeves that she and Amaya


      1
       Under a Presidential proclamation issued in December 2000, an illegal
alien could obtain resident alien status if he or she lawfully married a United
States citizen before April 30, 2001.

                                        -2-
would have to live together for thirty days and, afterwards, 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 the marriage. After an

argument with her parents, the police were contacted. 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 and abetting an individual

to knowingly enter into a marriage for the purpose of evading immigration laws.

One week before trial, the government filed a notice of intent to rely upon Rule

404(b) evidence. An amended and supplemented notice of intent was submitted

on the Friday before trial. In the notices, the government announced its intention

to introduce evidence through the testimony of at least five witnesses that Aguilar

advised the witnesses about false marriage arrangements, attempted to arrange at

least five fraudulent marriages in order to evade immigration laws, and solicited

one witness to provide potential brides for false marriages. In addition, the

government intended to introduce evidence that Aguilar previously aided and

abetted illegal aliens to enter the United States and that Aguilar had illegally

possessed other firearms and ammunition not charged in the indictment.


                                          -3-
      At trial, defense counsel objected to the notices on the grounds that they

were untimely, unspecific, and that the evidence sought to be presented was more

prejudicial than probative. The government argued that the evidence of the prior

fraudulent marriage arrangements was offered to show a common scheme or plan.

The district court overruled Aguilar’s objection in part: 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 excluded 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 criminal 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 such evidence 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 such 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


                                           -4-
specific right to pretrial notification” under 404(b)); United States v. Barnes, 49

F.3d 1144, 1148 (6th Cir. 1995) (concluding that Rule 404(b) places an initial

duty on the defense to request the provision of prior 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 pretrial notice of the

government’s intention to rely on prior bad acts evidence during trial. Thus, the

government acted appropriately under Rule 404(b) when it submitted its notice of

intent one week before trial because it was not obligated 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 evidence, there was no error that

resulted in prejudice.

      Aguilar further objected that the pretrial notice filed 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 government apprised Aguilar of the

names of the witnesses and the content of their testimony. The supplemental

notice specified in further detail the testimony of certain witnesses. The notices




                                         -5-
were more than sufficient to provide the “general nature” 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 admitted evidence of prior

fraudulent marriage arrangements under Rule 404(b) of the Federal Rules of

Evidence. A district court’s decision to admit prior 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 order to
            show action in conformity therewith. It may, however,
            be admissible for other purposes, such as proof of
            motive, opportunity, intent, preparation, plan,
            knowledge, identity, or absence of mistake or accident. .
            ..

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 omitted).

                                        -6-
      First, Aguilar alleges the evidence of prior fraudulent 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 acknowledged that showing a common

scheme or plan to demonstrate intent to commit a crime is a proper purpose under

Rule 404(b). See id. Evidence that Aguilar made arrangements for fraudulent

marriages on previous occasions demonstrated Aguilar conducted an ongoing

venture to assist illegal aliens to enter false marriages in order to gain legal

immigration status. In turn, Aguilar’s participation in the operation or scheme

showed she intended a fraudulent marriage to take place 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 arrangements were not

relevant to the issue of whether the marriage between Amaya and Reeves was

legitimate. Evidence is relevant when it has a “tendency to make the existence of

any fact that is of consequence to the determination of the action more probable

or less probable than it would be without the evidence.” Fed. R. Evid. 401.

Specifically, prior bad acts evidence is relevant to 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


                                           -7-
associate with a criminal venture and intend the venture 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 Aguilar intended the

arrangements to result in marriage, albeit fraudulent, between Amaya and Reeves.

Furthermore, evidence Aguilar engaged in prior fraudulent marriage arrangements

was relevant to refute Aguilar’s defense theory that a legitimate marriage took

place.

         Third, Aguilar essentially alleges that the testimony concerning prior

fraudulent marriage arrangements was more prejudicial than probative because the

evidence led the jury to convict on the basis of the prior arrangements instead of

the evidence concerning the marriage at issue. Rule 403 permits a district court

to exclude evidence if its probative value is substantially 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. Amaya, however, testified that

the marriage was legitimate. Because there was conflicting testimony, the

evidence of Aguilar’s prior fraudulent marriage arrangements was probative as to

whether the marriage between Amaya and Reeves was also 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


                                           -8-
was to pay $3000-$5000 for legal citizens to marry illegal aliens, that Aguilar

provided INS paperwork, that Aguilar arranged meetings to introduce prospective

spouses, that Aguilar informed certain parties that the wedding needed to take

place before April 30th to meet immigration deadlines, and that Aguilar had

wedding dresses available. Because the testimony was 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 evidence was more probative in light

of the allegations.

      Aguilar further alleges the trial court failed to conduct any analysis under

Rule 403. However, this court has previously acknowledged 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 argument 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 had ruled 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 prejudicial than probative. The


                                         -9-
district court considered Aguilar’s argument and excluded some of the prior bad

acts evidence, i.e. aiding and abetting and possession of firearms and ammunition,

as more prejudicial than probative. Because the district court admitted the

evidence of Aguilar’s prior fraudulent marriage arrangements under Rule 404(b)

after defense counsel raised the Rule 403 argument, this court concludes that the

district court made an implicit Rule 403 determination.

       Accordingly, this court concludes that the district court complied with the

four requirements for admitting Rule 404(b) evidence 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 arrangements was

offered for a proper purpose, relevant, more probative than prejudicial, and

coupled with a limiting instruction, the district court 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 under Rule 404(b) because Aguilar




       2
           Aguilar concedes that a limiting instruction was provided to the jury.

                                           -10-
failed to request reasonable pretrial notification from the government.

Accordingly, we AFFIRM Aguilar’s conviction.

                                       ENTERED FOR THE COURT



                                       Michael R. Murphy
                                       Circuit Judge




                                        -11-
