US v. Dmitry Dyugaev

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 2:10-cr-00068-RAJ-DEM-1 Copies to all parties and the district court/agency. [998660087].. [10-5251]

Appeal: 10-5251

Document: 35

Date Filed: 08/22/2011

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UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.

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Date Filed: 08/22/2011

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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

limitations.

For

to

dismiss

federal

based

offenses,

on
“no

the
person

statute

of

shall

be

prosecuted, tried, or punished for any offense, not capital,
unless the indictment is found or the information is instituted
within

five

years

committed.”

18

next

U.S.C.

after

such

§ 3282

offense

(2006).

“A

shall

have

been

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.”
2

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

government

must

conspiracy

Cir.

committed

an

prove

1981)
overt

within

(noting
act

general

in

limitations

rule

furtherance
period).

that

of
We

the
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
evidence

to

next

support

argues

the

that

there
We

conviction.

was

insufficient

review

a

district

court’s decision to deny a Fed. R. Crim. P. 29 motion for a
judgment of acquittal de novo.
209,

216

sufficiency

(4th
of

Cir.
the

United States v. Smith, 451 F.3d

2006).
evidence

A

defendant

faces

a

heavy

challenging
burden.

the

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.’”
(citations omitted).
reasonable

finder

Smith, 451 F.3d at 216

Substantial evidence is “evidence that a
of

fact

could
3

accept

as

adequate

and

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sufficient to support a conclusion of a defendant’s guilt beyond
a reasonable doubt.”
omitted).
weighs

Id. (internal quotation marks and citation

Furthermore,

the

“[t]he

credibility

of

jury,
the

not

the

evidence

conflicts in the evidence presented.”

reviewing

and

court,

resolves

any

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

immigration laws.

knew

or

had

reason

to

know

of

the

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).
4

We

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review a district court’s determination of the admissibility of
evidence under Rule 404(b) for abuse of discretion.
States v. Queen, 132 F.3d 991, 995 (4th Cir. 1997).
discretion

occurs

arbitrarily

or

only

when

irrationally

“the

in

[district]

admitting

United

An abuse of
court

evidence.”

acted
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.”
305,

312

(4th

Cir.

2004)

United States v. Hodge, 354 F.3d
(citing

Queen,

132

F.3d

at

997).

Additionally, the probative value of the evidence must not be
substantially

outweighed

by

(citing Fed. R. Evid. 403).

its

prejudicial

effect.

Id.

“Prejudice, as used in Rule 403,
5

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refers

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to

Date Filed: 08/22/2011

evidence

that

has

an

Page: 6 of 6

‘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.
legal

We dispense with oral argument because the facts and
contentions

are

adequately

presented

in

the

materials

before the court and argument would not aid in the decisional
process.

AFFIRMED

6