Government Motion For Other Acts Evidence

1
IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

UNITED STATES OF AMERICA,

Plaintiff,

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CASE NO. 5:13CR420

J UDGE PATRICIA A. GAUGHAN
v.

GOVERNMENTS MOTION TO DEEM
PROPOSED EVIDENCE
INEXTRICABLY INTERTWINED
WITH CHARGED CONDUCT, OR RES
GESTAE EVIDENCE OR,
ALTERNATIVELY, NOTICE OF
INTENT TO USE EVIDENCE UNDER
RULE 404(B)

BENJ AMIN SUAREZ, et al.,

Defendants.
As set forth below, it is the position of the United States of America, by and through its
attorneys, Steven M. Dettelbach, United States Attorney, Carole Rendon, First Assistant United
States Attorney, and Rebecca Lutzko and Matthew J . Cronin, Assistant United States Attorneys,
that the categories of evidence set forth in this document are intrinsic to and inextricably
intertwined with the conduct charged in this case. As a result, the Court should admit evidence
falling into these categories under the Sixth Circuits established precedent. See, e.g., United
States v. Henderson, 626 F.3d 326 (6th Cir. 2010) (Where the challenged evidence is intrinsic
to, or inextricably intertwined with evidence of, the crime charged, Rule 404(b) is not
applicable); United States v. Hardy, 228 F.3d 745, 748 (6
th
Cir. 2000) (background or res gestae
evidence is admissible and does not need to fall under Rule 404(b)). In the event, however, that
the Court disagrees with the governments analysis regarding one or more of these categories of
Case: 5:13-cr-00420-PAG Doc #: 172 Filed: 05/20/14 1 of 19. PageID #: 2360
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evidence, the United States hereby notifies Defendants that it intends to introduce these
categories of evidence in its case-in-chief under Rule 404(b).
I. BACKGROUND
On October 22, 2013, a federal Grand J ury returned a 10-count Superseding Indictment
charging Benjamin Suarez, Michael Giorgio,
1
and Suarez Corporation Industries, Inc. (SCI)
with two overarching conspiracies (1) a conspiracy to violate campaign finance laws (Count
One) and (2) a conspiracy to obstruct justice (Count Seven) along with several additional
substantive violations of the law. Count One details how Defendants conspired to:
(A) to disguise and conceal from the public and from federal agencies with
jurisdiction to administer federal campaign finance laws and investigate violations
of those laws (1) the true sources and amounts of contributions to an Ohio
candidate for the United States Senate and an Ohio candidate for the United States
House of Representatives, and (2) the identity of SCI as a contributor to those
campaigns; (B) to contribute SCIs funds to those campaigns, when such
corporate contributions were prohibited, by using conduit contributors and
reimbursing the conduit contributors with SCIs funds; and (C) to gain influence
for SCI and BENJ AMIN SUAREZ through such disguised contributions.

(ECF 27, 9). Defendants attempted to accomplish these objectives by using nearly two-dozen
conduit contributors, straw donors who purported to give the maximum allowed individual
contributions to the 2012 House Campaign, the 2012 Senate Campaign, or both. (Id. at 22,
23). Defendants, through SCIs coffers, then reimbursed the contributors through payroll checks,
thereby masking SCIs substantial and illegal payments $100,000 to the Senate Campaign and
$90,000 to the House Campaign and making those payments appear to be the independent
contributions of individual donors. (Id. at 15-19). The conduit contributors were SCI
employees, independent contractors who worked for SCI, and/or their spouses. These payments
afforded Defendants access to and favorable treatment from powerful elected officials, who
thereafter took official actions on their behalf. (Id. at 20, 24-26).

1
Defendant Giorgio pleaded guilty to Counts 1 through 7 on May 19, 2014.
3

Beginning in August 2011, several local newspapers published articles questioning the
authenticity and legality of the significant number of maximum contributions made by the
conduit contributors. (Id. at 39). An investigation by the FBI and a federal Grand J ury ensued.
During the course of its investigation, the Grand J ury issued four separate subpoenas to SCI
seeking documents relevant to its investigation.
As alleged in Count Seven, Defendants engaged in a second overarching conspiracy, the
objectives of which were to:
impede, obstruct, delay and influence a federal investigation of
illegal campaign contributions and other related criminal conduct
(A) by covering up and concealing the true source and amount of
contributions, and the identity of the true contributor to the 2012
House Campaign and the 2012 Senate Campaign; (B) by covering
up and concealing the nature and extent of the relationship between
SCI and BENJ AMIN SUAREZ on the one hand, and the 2012
Senate Campaign candidate and the 2012 House Campaign
candidate on the other, from the Federal Bureau of Investigation,
the federal Grand J ury, and agencies and departments with
jurisdiction to administer and investigate those matters; and (C) by
falsifying certain records, concealing and withholding others, and
seeking to influence, delay and prevent the testimony and potential
testimony of witnesses.

(Id. at 50).
As the Superseding Indictment details, Defendants conspired to obstruct justice in a
variety of ways, including providing incomplete and insufficient responses to the Grand J ury
subpoenas. Independent sources verified Defendants noncompliance. These sources provided
evidence conclusively demonstrating that the Defendants possessed documents responsive to the
Grand J ury subpoenas, but refused to produce them. Ultimately, the FBI executed a search
warrant at SCIs office, recovering items several responsive to the subpoenas. (Id. at 47). In
particular, a search of Defendant Giorgios office uncovered key documents responsive to the
subpoenas that were within the possession and control of SCI and Giorgio, but were withheld
4

from the federal Grand J ury. (Id. at 72-75, 86, 87, 95). These include a one-page note in
Defendant Suarezs handwriting and an attached five-page typewritten document on which
Defendant Giorgio handwrote comments. The writing evinces a clear intent to influence and/or
coordinate the stories of Defendants Suarez and Giorgio. (Id. at 70, 95, 101-01). Defendants
also concealed an email and attached letter from SCIs then-general counsel to the 2012 Senate
Campaign candidate. These documents relate to Defendant Suarezs request that the 2012
Senate Candidate use his official position to help end an investigation of SCI in California
conducted by several California district attorneys. (Id. at 24, 26, 103). Ending this legal
action would materially enhance SCIs business position. Defendants noncompliance continued
even after this search, with SCI producing its remaining responsive documents only after a
federal Grand J ury indicted Defendants Suarez and Giorgio and after a federal court compelled
their production. (Id. at 48).
During the course of the investigation, the United States learned that Defendants serial
noncompliance was only one component of their larger conspiracy to obstruct justice.
Defendants also disguised SCIs reimbursements to the conduit contributors first as salary, then
as profit sharing and later, only after the conduit contributions were uncovered, as purported
advances on future profit sharing. (Id. at 51-53, 60- 69). Defendants Suarez and SCI
moreover engaged in blatant witness tampering, including (1) attempting to coerce a witness into
perjuring herself before the Grand J ury and defaming her by circulating inaccurate information
about her mental state to her colleagues (Id. at 57, 92-94); and (2) instructing a witness in
writing that he WILL TESTIFY TO THE FOLLOWING inaccurate version of events and thus
perjure himself before the Grand J ury. (Id. at 58, 96, 97).
Counts Eight through Ten provide the substantive charges related to Defendants
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obstructive behavior. Count Eight describes how Defendant Benjamin Suarez,
did knowingly attempt to use intimidation, threaten, and corruptly persuade
another person and engage in misleading conduct toward another person who
worked for SCI, whose initials are B.H., by (a) writing and having delivered to
B.H. at B.H.s home a one-page note in SUAREZs handwriting with an attached
five-page typewritten document relating to and providing direction regarding
B.H.s upcoming testimony before a federal grand jury, telling her not to
communicate with her own lawyer, and containing an inaccurate version of events
that SUAREZ wished to present; (b) writing and circulating an inaccurate letter to
the employees of SCI opining that B.H. s mental abilities had been compromised,
referencing medical issues experienced by B.H., alleging that B.H. was under
federal investigation, and opining that B.H. had suffered a tragic loss as a result of
the investigation; and (c) making statements to B.H. opining that B.H.s mental
abilities had been compromised, all with the intent to influence, delay, and
prevent the testimony of B.H. in an official proceeding, to wit: testimony before a
federal grand jury[,]

and thus committed witness tampering under 18 U.S.C. 1512(b)(l). (Id. at 99).
The referenced note given to B.H. had a handwritten cover page in Defendant Suarezs
handwriting and an attached typed document. In the handwritten cover page, Defendant Suarez
tells B.H. that the typed portion is his memory of what happened and asked her to confirm its
accuracy. Defendant Suarez also tells B.H. do not tell anyone about this, the United States
will still prosecute you as a co-conspirator, and that her testimony is key to keeping Mike
G[iorgio] from getting indicted, which would take down SCI. (Id.) The typed document
contains a materially inaccurate version of events designed to exculpate Defendants, particularly
Defendant Suarez. The typed documents first page states, Attorney Client Privilege Work
Product. In a related Grand J ury proceeding that predates the Superseding Indictments filing,
Chief J udge Oliver already ruled that this document was not privileged and was subject to the
crime-fraud exception.
Count Nine pertains to Defendants obstructive behavior under 18 U.S.C. 1512(c) and
2. The Superseding Indictment states that Defendants did corruptly obstruct, influence, and
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impede any official proceeding, and attempt to do so, by creating and then concealing the
existence of a one-page note in Suarezs handwriting and a five-page typewritten document
containing Giorgios handwriting. (Id. at 101). Federal agents discovered the document
described in Count Nine in Defendant Giorgios office pursuant to a lawful search warrant. The
first page is a handwritten note by Defendant Suarez explaining that the attached typed document
is his memory of what happened and asking him to send the document back as OK or make
corrections. Suarez instructs Giorgio not to call him on this matter, as our lines may be
tapped. Defendant Giorgio edited the typed document with a red pen and drafted handwritten
comments. But for these changes, the typed document is otherwise essentially identical to the
typed document provided to B.H. and described in Count Eight. In two instances, Defendant
Giorgio crossed out the statement that Suarez asked him to set up loans for the contributors
and instead wrote the comment, Never any conversation as to advance or loans. Conversation
never took place. (Id.). As in Count Eight, Chief J udge Oliver has already ruled that this
document is non-privileged and subject to the crime-fraud exception.
Count Ten involves the obstructive conduct of Defendants Suarez and SCI under
18 U.S.C. 1512(c) and 2. Specifically, Count Ten states that Defendants Suarez and SCI,
did corruptly obstruct, influence, and impede any official
proceeding, and attempt to do so, by concealing the existence of an
email between C.B., L.P. and others, and the existence of drafts of
a letter SUAREZ exchanged with the 2012 Senate Campaign
candidate that SUAREZ asked the candidate to write to another
public official on SCIs behalf regarding SCIs business interests.

(Superseding Indictment, 103). In the email, SCI corporate counsel states that per Ben
[Suarez], this is the version [of the attached letter] that he ultimately wants [the 2012 Senate
Candidate] to send to [the California Treasurer]. The 2012 Senate Candidate had sent the letter
back for Defendant Suarezs approval and was subsequently given the final copy of the letter.
7

As is clear from the document, Defendants Suarez and SCI asked the 2012 Senate Candidate to
send the letter to the California Treasurer. The letter was ultimately sent to the California
Treasurer on the 2012 Senate Candidates official letterhead with virtually no changes, asking
the California Treasurer to make every effort to end the ongoing litigation against SCI by several
California District Attorneys for deceptive business practices.
II. THE GOVERNMENTS PROPOSED EVIDENCE IS INTRINSIC TO THE
CRIMES CHARGED, MAKING 404(B)S NOTICE REQUIREMENTS
INAPPLICABLE

The Sixth Circuit Court of Appeals has squarely addressed what is considered intrinsic
evidence. In United States v. Barnes, the Court explained that:
Rule 404(b) does not apply where the challenged evidence is inextricably
intertwined with evidence of the crime charged in the indictment. When the
other crimes or wrongs occurred at different times and under different
circumstances from the offense charged, the deeds are termed extrinsic.
Intrinsic acts, on the other hand, are those that are part of a single criminal
episode. When that circumstance applies, the government has no duty to disclose
the other crimes or wrongs evidence.

49 F.3d 1144, 1149 (6
th
Cir. 1995) (citing United States v. Torres, 685 F.2d 921, 924 (5
th
Cir.
1982)); see also Henderson, 626 F.3d at 326 (Where the challenged evidence is intrinsic to, or
inextricably intertwined with evidence of, the crime charged, Rule 404(b) is not applicable).
Since Barnes, the Sixth Circuit further refined its definition of intrinsic acts. In United States
v. Daulton, the Court announced that [e]vidence is inextricably intertwined when the charged
conduct and the uncharged conduct are part of the single criminal episode or the other acts were
necessary preliminaries to the crime charged. 2008 U.S. App. LEXIS 939, *6 (6
th
Cir. 2008)
(unpublished) (emphasis added) (quoting United States v. Williams, 900 F.2d, 823, 825 (5
th
Cir.
1990)).
The Sixth Circuit has consistently held that any necessary preliminaries to the charged
8

crime constitute intrinsic evidence. In United States v. Gonzalez, for instance, the Sixth Circuit
analyzed whether prior uncharged drug activity was intrinsic conduct. 501 F.3d 630 (6th Cir.
2007). The Court concluded that evidence of an ongoing conspiracy, which led up to and
encompassed their jointly charged substantive offense establishes a continuing pattern of
illegal activity that is intrinsic to the charged offense and thus not subject to Rule 404(b). Id. at
640 (emphasis added). Therefore, when other acts are intrinsic to the charged conduct or part of
a single criminal episode, they are inextricably intertwined and therefore are not subject to a
Rule 404(b) analysis. See e.g., United States v. Rozin, 664 F.3d 1052 (6th Cir. 2012) (in tax
fraud case, evidence of prior year activities not 404(b), but rather intrinsic evidence); United
States v. Monsour, 893 F.2d 126 (6th Cir. 1990) (investigative link evidence, such as the
defendant acting suspiciously at another bank branch a few days prior to the robbery, was
intrinsic evidence).
In other instances, evidence is intrinsic when it complete[s] the story of the crime on
trial; their absence would create a chronological or conceptual void in the story of the crime; or
they are so blended or connected that they incidentally involve, explain the circumstances
surrounding, or tend to prove any element of, the charged crime. United States v. Senffner, 280
F.3d 755, 764 (7th Cir. 2002); United States v. Ojomo, 332 F.3d 485, 488-89 (7th Cir. 2003);
United States v. Holt, 460 F.3d 934 (7th Cir. 2006); see also United States v. Martinez, 430 F.3d
317 (6th Cir. 2005) (evidence that is part of the conspiracy is not other acts evidence).
The Sixth Circuit has also deemed that Rule 404 of the Federal Rules of Evidence does
not bar background or res gestae evidence. In United States v. Hardy, the Sixth Circuit
announced, [t]his court has previously recognized the propriety of introducing >background=
evidence. Such evidence, often referred to as res gestae does not implicate Rule 404(b). 228
9

F.3d 745, 748 (6
th
Cir. 2000); United States v. Buchanan, 213 F.3d 302, 311 (6
th
Cir. 2000);
United States v. Paulino, 935 F.2d 739, 755 (6
th
Cir. 1991) (superseded by statute on other
grounds); United States v. Hajal, 555 F.2d 558, 568 (6th Cir. 1977) (other acts may be so much a
part of the res gestae of a crime that they should be admitted). The Hardy court then explained:
Rather, the very definition of what constitutes background
evidence contains inherent limitations. Buchanan, Paulino and
other cases dealing with this issue teach that background or res
gestae evidence consists of those other acts that are inextricably
intertwined with the charged offense or those acts, the telling of
which is necessary to complete the story of the charged offense.
Proper background evidence has a causal, temporal or spatial
connection with the charged offense. Typically, such evidence is a
prelude to the charged offense, is directly probative of the charged
offense, arises from the same events as the charged offense, forms
an integral part of a witnesss testimony, or completes the story of
the charged offense.

228 F.3d at 748 (citations omitted); United States v. Weinstock, 153 F.3d 272, 277 (6th Cir.
1998); Barnes, 49 F.3d at 1149; United States v. Townsend, 796 F.2d 158, 162 (6th Cir. 1986);
United States v. Cunningham, 103 F.3d 553, 557 (7th Cir. 1996). Therefore, evidence of
background, res gestae, or a continuing pattern of illegal activity is properly admissible as it is
not precluded by Rule 404(a) of the Federal Rules of Evidence.
The United States respectfully represents that the following evidence is intrinsic or
necessary res gestae that is admissible under the Federal Rules of Evidence without any need for
Rule 404(b) analysis:
1. Evidence relating to the California Litigation

Defendants were engaged in a longstanding dispute with California District Attorneys in
Napa County and elsewhere. The District Attorneys were investigating SCI products for
violations of California consumer protection laws. On J une 14, 2011, the People of the State of
California, by and through the District Attorneys of Californias Alameda, Marin, Monterey,
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Napa, Orange, Santa Clara, Santa Cruz, Shasta, Solano, and Sonoma Counties, sued Suarez and
SCI for deceptive advertising, unfair competition, and violating a court-ordered injunction. In
J anuary 2014, Defendant SCI settled the civil suit.
Both before and after the filing of this suit, Defendants sought influence and access to
public officials particularly the 2012 House Candidate and 2012 Senate Candidate as a means
to short-circuit and ultimately circumvent the litigation. The evidence will show that
Defendants goal was to use the name and power of these public officials to thwart the lawsuit
against SCI.
If anything, the evidence is more than intrinsic. The Superseding Indictment directly
discusses Defendants failure to produce documents requested in Grand J ury subpoena #3
relating to the litigation or threatened litigation against the Suarez Corporation [. . .] by one or
more district attorneys in the State of California. (Superseding Indictment, 44). Additionally,
the California litigation is inextricably intertwined with the Defendants criminal conduct, as it
is impossible for the jury to ascertain how or why Defendants took certain action without them.
Furthermore, the evidence involving the California litigation is complete[s] the story of the
crime on trial and its absence would create a chronological or conceptual void in the story.
Senffner, 280 F.3d at764. It is also essential background evidence that has a causal, temporal,
or spatial connection with the charged offense. Hardy, 228 F.3d at 748.
2. Evidence relating to Defendants involvement with the United States Citizens Association
(USCA) (formerly known as the Better Government Association (BGA)) and the
Empowered Citizens Network (ECN) as well as the work done by these organizations to
Defendants benefit

The United States anticipates introducing evidence of Defendants involvement with
USCA, a Political Action Committee, and ECN, a Super PAC. The evidence demonstrates the
Defendants control over the organizations and the work done by these organizations on
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Defendants behalf. Defendants were instrumental in the creation of both organizations and are
the chief financiers. Suarez and SCI in particular controlled the purse strings for each
organization and used them to finance, in part, Defendants legal and consulting fees relating to
their fight against the California litigation and their communications with the 2012 House
Candidate and 2012 Senate Candidate. Defendants work with these organizations is necessary
preliminaries to the crime charged and thus intrinsic evidence. The Defendants financing and
other involvement in these organizations, as well as the organizations work done on behalf of
the Defendants, are part of Defendants conspiracy to violate the campaign finance laws. See
Martinez, 430 F.3d at 317. Moreover, the Defendants involvement in these organizations is
necessary res gestae or background evidence that will help fill any conceptual voids the jury may
have about Defendants criminal conduct, how certain bills were paid or connections made, and
thus constitute necessary background evidence for the jury to understand the case.
3. Evidence relating to Defendant Suarez and SCIs involvement with the Association of
American Business Employees, Inc. (AABE) and its political work on SCIs behalf

The United States also anticipates introducing evidence relating to the Defendants
involvement with AABE as well as AABEs political work on behalf of SCI. The evidence will
show that Defendant Suarez and SCI created AABE as a means to persuade and, in some
instances, coerce SCI employees into supporting Defendant Suarezs political goals and
Defendants larger ambition to end the California litigation. In some instances, Defendant
Suarez threatened his employees with financial harm (specifically, cutting off profit sharing) for
their failure become active members of AABE and thereby support his legal and political battles.
This intrinsic evidence is inextricably intertwined as part of Defendants single criminal
episode all designed to assist Defendants actions with influencing political figures for their
own ends. The Defendants activities with AABE in many instances coincided and were part of
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their larger scheme involving public figures. The evidence relating to AABE is so blended or
connected that they incidentally involve, explain the circumstances surrounding, or tend to prove
any element of, the charged crime. Senffner, 280 F.3d at 764. Its absence would likewise
create a chronological or conceptual void in the story of the crime. Id. Additionally, the
AABE evidence has a causal, temporal or spatial connection with the charged offense that
provides necessary background evidence needed for the jurys understanding of the underlying
criminal conduct. Hardy, 228 F.3d at 748.
4. Evidence relating to Defendant Suarez and SCIs solicitation of donations to the 2010
Renacci campaign

In 2010, Defendant Suarez solicited donations to the 2010 Renacci campaign. He then
used his official position as SCIs CEO and owner to solicit donations from his employees to
Renacci. Documents and other intrinsic evidence relating to this solicitation of Defendants
employees are critical to understanding the impetus for Defendants choosing to reimburse the
conduit contributors rather than simply request their donation. It therefore is a prior activity
whose absence would leave a conceptual void in the criminal narrative. Rozin, 664 F.3d at 1052
(in tax fraud case, evidence of prior year activities not 404(b), but rather intrinsic evidence). It
also explains the circumstances surrounding, or tend[s] to prove an[] element of[] the charged
crime in this case, Defendants intent to violate the law. Senffner, 280 F.3d at 764.
5. Evidence relating to Defendants and their spouses prior contributions to federal election
campaigns

The United States anticipates adducing evidence relating to Defendants and their
spouses history of political contributions prior to the contributions to the 2012 House Candidate
and 2012 Senate Candidate. The evidence indicates that the spouses contributions were at the
behest of their husbands. Here too, the prior contributions are essential as it tend[s] to prove an
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[] element of[] the charged crime, the Defendants intent to violate the law. Id. The evidence is
also important res gestae that will be an integral part of [several] witnesses testimony. Hardy,
228 F.3d at 748.
III. ALTERNATIVE NOTICE OF THE GOVERNMENTS INTENT TO
INTRODUCE RULE 404(b) EVIDENCE

The Sixth Circuit has held time and again that Rule 404(b) is a rule of inclusion, not
exclusion. United States v. Myers, 102 F.3d 227, 234 (6th Cir. 1996); United States v. Bakke,
942 F.2d 977, 981 (6th Cir. 1991); United States v. Blakeney, 942 F.2d 1001, 1018 (6th Cir.
1991) (Rule 404(b) is actually a rule of inclusion rather than exclusion, since only one use is
forbidden and several permissible uses of such evidence are identified). As explained in the
Federal Rules of Evidence, under Rule 404(b), evidence of uncharged conduct is admissible for a
jurys consideration for other purposes:
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); United States v. Jenkins, 593 F.3d 480, 484 (6
th
Cir. 2010) (abuse of
discretion is the proper standard for review for a district courts evidentiary rulings). Relative
to Rule 404(b), Congress took care to ensure that restrictions would not be placed on the
admission of [404(b)] evidence. Huddleston v. United States, 485 U.S. 681, 688 (1988); United
States v. Burgess, 576 F.3d 1078, 1098 (10th Cir. 2009) (Rule 404(b) is considered to be an
inclusive rule, admitting all evidence of other crimes or acts except that which tends to prove
only criminal disposition) (emphasis added); United States v. Poulsen, 655 F.3d 492 (6th Cir.
2011) (evidence from defendants related separate obstruction of justice case admissible as
404(b) consciousness of guilt evidence in his securities case). No preliminary showing that
14

defendant committed the other acts is required for admission of evidence under Rule 404(b)
the evidence need only be sufficient for a jury to find by a preponderance of the evidence that the
defendant committed the acts. Id. at 691.
The Sixth Circuit requires a district court to make three findings before the district court
admits evidence under Rule 404(b). The district court must find: (1) the other acts occurred, (2)
the acts are admissible for a proper purpose, and (3) the evidence passes the balancing test of
Rule 403. United States v. Lattner, 385 F.3d 947, 955 (6th Cir. 2004). More recently, the Sixth
Circuit has refined its Rule 404(b) analysis to describe whether evidence is probative of a
material issue: (1) the evidence is offered for an admissible purpose, (2) the purpose for which
the evidence is offered is material or in issue, and (3) the evidence is probative with regard to
the purpose for which it is offered. United States v. Corsmeier, 617 F.3d 417, 420 (6
th
Cir.
2010).
Numerous categories of evidence are admissible under this inclusive rule. For instance,
under Rule 404(b), the United States may use prior acts to prove motive. United States v.
Mullins, 22 F.3d 1365 (6th Cir. 1994) (evidence of illegal kickbacks and other improprieties in
department properly admitted to show why defendant would have obstructed justice); United
States v. Cunningham, 103 F.3d 553 (7th Cir. 1996) (evidence of addiction to Demerol and
suspension of nursing license together with falsification of test results to regain license
admissible to show motive for access to Demerol). The United States may likewise use other
acts to contextualize other evidence and enable the jury thereby to understand other evidence.
United States v. Brooks, 125 F.3d 484, 499-501 (7th Cir. 1997) (drug addiction evidence used to
prove motive to commit bank robbery).
Similarly, when a defendant is charged with a specific intent crime, the government may
15

use uncharged conduct to prove intent under Rule 404(b). United States v. French, 974 F.2d 687
(6th Cir. 1992) (The government may use evidence of similar acts that are probative of intent if
specific intent is an element of the crime charged, such as the conspiracy in this case)
(overruled in part on other grounds); United States v. Ausmus, 774 F.2d 722, 727-28 (6th Cir.
1985) (extrinsic evidence in tax case proper 404(b) evidence to prove willfulness); United States
v. Trujillo, 376 F.3d 593 (6th Cir. 2004) (where offense requires proof of specific intent, Rule
404(b) evidence of intent is admissible to prove intent); United States v. Jones, 455 F.3d 800,
808-809 (7th Cir. 2006) (listing cases using prior drug convictions to show intent); United States
v. Toro, 359 F.3d 879, 884 (7th Cir. 2004) (past possession of distribution amounts relevant to
show intent to distribute). A prior bad act admitted to show intent need not duplicate the current
charge, but need only be sufficiently analogous to support an inference of criminal intent.
United States v. Benton, 852 F.2d 1456 (6th Cir. 1988). Other acts evidence may likewise be
introduced to prove knowledge, where such knowledge is a fact of consequence. See
Huddleston, 485 U.S. at 684 (prior acts to prove knowledge appliances were stolen); United
States v. Saada, 212 F.3d 210, 223-24 (3d Cir. 2000) (evidence of prior insurance fraud
admissible to prove knowledge of fraudulent nature of claims in present case, intent to defraud).
An individuals state of mind is also an area that can be explored through Rule 404(b)
evidence. Extrinsic acts evidence may be critical to the establishment of the truth as to a
disputed issue, especially when that issue involves the actors state of mind and the only means
of ascertaining that mental state is by drawing inferences from conduct. Huddleston, 485 U.S.
at 685. It is therefore common to use Rule 404(b) evidence to show a witnesses state of mind.
United States v. Gaitan-Acevedo, 148 F.3d 577 (6th Cir. 1998) (Cooperating witness testimony
about his fear that he would be killed for cooperating is admissible). Rule 404(b) evidence can
16

also be used to establish consciousness of guilt. For instance, spoliation evidence, including
evidence that defendant attempted to bribe and threatened a witness, is admissible to show
consciousness of guilt. United States v. Mendez-Ortiz, 810 F.2d 76, 78-79 (6th Cir. 1986);
United States v. Kemp, 500 F.3d 257, 296 (3d Cir. 2007) (false statements about facts material to
the prosecution can be admitted under the Rule to prove consciousness of guilt). Prior acts
additionally may be used to demonstrate the lack of inadvertence or accident. United States v.
Lamons, 532 F.3d 1251, 1265 (11th Cir. 2008).
Prior acts under 404(b) are not limited only to crimes. United States v. Hofstatter, 8 F.3d
316 (6th Cir. 1993). Nor is there an ironclad rule limiting the age of admissible other acts.
United States v. Franklin, 704 F.2d 1183 (10th Cir. 1983); United States v. Jones, 403 F.3d 817
(6th Cir. 2005) (many cases have admitted evidence of acts up to ten years prior to the charged
offense, so a three year gap is not so great as to render evidence inadmissible); United States v.
Kreiser, 15 F.3d 635, 640 (7th Cir. 1996) (prior act committed seven years earlier not too
remote); United States v. Edouard, 485 F.3d 1324, 1346 (11th Cir. 2007) (compiling cases
including one where fifteen years was not too remote).
The United States respectfully represents that the evidence detailed in Section II, supra,
is either inextricably intertwined intrinsic evidence or res gestae that provides important
background information to the jury. It therefore does not need to be admitted under Rule 404(b).
To the extent that this Court finds any of this evidence to be extrinsic, however, the evidence is
all squarely admissible under Rule 404(b) and the United States hereby provides its alternative
notice of its intent to introduce the evidence under that Rule.
All of the other acts evidence discussed in Section II fall under the Sixth Circuits
inclusive Rule 404(b) test: they (1) occurred; (2) are admissible for a proper purpose and (3) are
17

not so unduly prejudicial that it should be barred under Rule 403. Lattner, 385 F.3d at 955.
None of them only prove criminal disposition, and they likewise readily fall into one of the
many other purposes expressly listed in Rule 404(b). Burgess, 576 F.3d at 1098 (emphasis
added); Blakeney, 942 F.2d at 1018. The California Litigation is evidence of Defendants intent
and motive. Defendants involvement in USCA and ECN, as well as the work done by these
organizations to Defendants benefit, demonstrates Defendants intent, knowledge, and
sophistication relating to the statutes at issue in this case, Defendants plan, as well as the
absence of any mistake or accident on their part. Defendants involvement with AABE and the
work done by AABE on Defendants behalf similarly demonstrates intent, knowledge, and
sophistication. It also explains Defendants motive to reimburse the conduit contributors in order
to gain their support. Similarly, Defendant Suarez and SCIs solicitation of campaign
contributions from SCI employees in 2010 likewise shows Defendants intent, knowledge of the
campaign finance laws, and absence of mistake or accident on their part. It also is evidence of
Defendants motive to reimburse the conduit contributors. Moreover, Defendants prior
contributions, as well as those of their spouses, demonstrates the requisite knowledge of the
relevant laws and the absence of any mistake or accident. Finally, all of this evidence directly
speaks to Defendants state of mind, which is critical to the establishment of the truth as to a
disputed issue when the only means of ascertaining that mental state is by drawing inferences
from conduct. Huddleston, 485 U.S. at 688. All categories of evidence are therefore admissible
under Rule 404(b).
IV. CONCLUSION
The government respectfully moves this Court for a ruling that the evidence it intends to
offer as intrinsic inextricably intertwined or res gestae evidence be admitted during the course
18

of the jury trial. In the event the Court finds the government=s proposed evidence inadmissible as
inextricably intertwined or res gestae evidence, the government then moves this Court to allow
the introduction of any and all of the categories of evidence identified in this motion as Rule
404(b) evidence.
Respectfully submitted,

STEVEN M. DETTELBACH
UNITED STATES ATTORNEY

By: /s/ Carole S. Rendon
Carole Rendon (OH: 0070345)
First Assistant U.S. Attorney

/s/ Matthew J . Cronin
Matthew J . Cronin (VA: 80267)
Assistant U.S. Attorney
United States Court House
801 West Superior Avenue, Suite 400
Cleveland, OH 44113
(216) 622-3656/3955
(216) 522-7545 (facsimile)
Carole.Rendon@usdoj.gov
Matthew.Cronin@usdoj.gov

/s/ Rebecca Lutzko
Rebecca Lutzko (OH: 0069288)
United States Court House
2 South Main Street
Suite 208
Akron, Ohio 44308
(330) 761-0530
(330) 330-375-5492 (facsimile)
Rebecca.Lutzko@usdoj.gov

19

CERTIFICATE OF SERVICE

I hereby certify that on this 20th day of May 2014, a copy of the foregoing document was
filed electronically. Notice of this filing will be sent to all parties by email.
/s/ Matthew J . Cronin
Matthew J . Cronin


Government Motion For Other Acts Evidence

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