UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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
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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,
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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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