United States District Court, E.D. Louisiana
SUSIE MORGAN, District Judge.
Before the Court is the Government's notice of intent to offer evidence of other acts pursuant to Rule 404(b) of the Federal Rules of Evidence. Defendant Trina Marie Bourg argues the 404(b) evidence should be excluded. Having considered the memoranda, the record, and the applicable law, the Court now issues this order.
On August 8, 2014, a federal grand jury returned a single count indictment charging Defendant with wire fraud in violation of 18 U.S.C. § 1343. Approximately nine months later, on May 21, 2015, another federal grand jury returned a superseding indictment charging Defendant with four counts of wire fraud and one count of attempted wire fraud. According to the superseding indictment, Defendant, while employed as a Spanish language interpreter for the Office of the District Defender for the 32nd Judicial District for Terrebonne Parish ("Public Defender's Office"), created a scheme and artifice to defraud clients of the Public Defender's Office who were undocumented aliens facing potential removal from the United States.
The superseding indictment states that, in her capacity as a Spanish interpreter for the Public Defender's Office, Defendant routinely encountered individuals incarcerated or detained for alleged violations of state law or United States immigration laws. While providing Spanish interpreting services for attorneys employed with the Public Defender's Office, Defendant allegedly identified clients facing criminal charges who were subject to potential removal from the United States. After identifying such clients, Defendant allegedly initiated contact with the client, or the client's family, outside the presence or knowledge of the client's court appointed attorney, and falsely represented to the client, or the client's family, that she would for a certain amount of money influence federal immigration officials not to seek federal prosecution or not to initiate removal proceedings against the client.
Defendant allegedly threatened and intimidated "Client A" and "Client A's" family members into believing "Client A" was going to be deported and falsely represented to them that for a certain amount of money she could pay federal immigration officials not to seek federal prosecution or initiate removal proceedings against "Client A." The superseding indictment details how Defendant allegedly used and attempted to use wire communications in furtherance of her scheme to defraud "Client A" and "Client A's" family and friends.
On June 24, 2015, the Government filed a notice of intent to use evidence of other acts, giving Defendant notice that it intends to introduce evidence of Defendant's involvement with another illegal alien, "Client B, " and acceptance of cash payments from "Client B" and "Client B's" brother. Defendant objects to the evidence being offered and requests it be excluded.
STANDARD OF LAW
Under Federal Rule of Evidence 404(b), "[e]vidence 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." The Fifth Circuit has clarified: "Rule 404 is a rule of inclusion, which admits evidence of other acts relevant to a trial issue except where such evidence tends to prove only criminal disposition. The rule is exclusionary only as to evidence admitted to establish bad character as such; it very broadly recognizes admissibility of prior crimes for other purposes."
For 404(b) evidence to be admissible, the two-step test articulated in United States v. Beechum must be applied. "First, it must be determined that the extrinsic offense evidence is relevant to an issue other than the defendant's character." As a threshold matter, the relevancy of extrinsic act evidence is conditioned on whether the defendant, in fact, committed the extrinsic act. Rule 104(b) of the Federal Rules of Evidence states: "When the relevance of evidence depends on whether a fact exists, proof must be introduced sufficient to support a finding that the fact does exist. The court may admit the proposed evidence on the condition that the proof be introduced later." "Therefore, as a predicate to a determination that the extrinsic offense is relevant, the Government must offer proof demonstrating that the defendant committed the offense. If the proof is insufficient, the judge must exclude the evidence because it is irrelevant" under Rule 104(b).
When "determin[ing] whether there is sufficient evidence for the jury to find the defendant in fact committed the extrinsic offense[, ]... [t]he judge need not be convinced beyond a reasonable doubt that the defendant committed the extrinsic offense, " and the Government need not "come forward with clear and convincing proof." Rather, the standard for the admissibility of extrinsic offense evidence is whether there is evidence sufficient to permit a reasonable jury to find the preliminary facts by a preponderance of the evidence.
Once this threshold is met, the Court must look at other indicia of relevance. When determining whether extrinsic act evidence is relevant to an issue other than the defendant's character, as required to be admissible under 404(b), "relevance is a function of [the extrinsic offense's] similarity to the offense charged." "[S]imilarity means more than that the extrinsic and charged offense have a common characteristic"-the common characteristic must be "the significant one for the purpose of the inquiry at hand."
The second step of the Beechum test is that "the evidence must possess probative value that is not substantially outweighed by its undue prejudice and must meet the other requirements of rule 403." "The task for the court in its ascertainment of probative value and unfair prejudice under rule 403 calls for a ...