Diego Sanchez's Motion to Exclude 404(b) Evidence; Renewed Motion to Sever — United States v. Sanchez Chocron

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Diego Sanchez's Motion to Exclude 404(b) Evidence; Renewed Motion to Sever; and Request for Hearing, entered January 31, 2025, in United States of America v. Diego Sanudo Sanchez Chocron, Case No. 24-CR-20155-RUIZ/TORRES(s), Southern District of Florida. The motion responds to the Government's 16 page "Notice" of other crime evidence. It argues that the first noticed area, evidence about prior labs, does not apply to Diego Sanchez and should be excluded as to him, and that the other noticed evidence is not inextricably intertwined with the Indictment. If the Court admits the evidence, it renews the motion to sever, and it asks for oral argument. It is signed /s/ David Oscar Markus and /s/ Lauren Field Krasnoff.

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“Diego Sanchez's Motion to Exclude 404(b) Evidence; Renewed Motion to Sever — United States v. Sanchez Chocron.” Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/court-filing-s-d-fla-no-1-24-cr-20155-dkt-168-s-d-fla-f9d0d17f6d/, SHA-256 d6281a49b366f0fb0bafe20f5ae4c267f8d5a31e59433eb6eb755d6a0da484d1.

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Case 1:24-cr-20155-RAR Document 168 Entered on FLSD Docket 01/31/2025 Page 1 of 7

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA

CASE NO. 24-CR-20155-RUIZ/TORRES(s)

UNITED STATES OF AMERICA

vs.

DIEGO SANUDO SANCHEZ CHOCRON.
_________________________________________/

DIEGO SANCHEZ’S MOTION TO EXCLUDE 404(b) EVIDENCE; RENEWED
MOTION TO SEVER; AND REQUEST FOR HEARING

The current indictment is an impenetrable labyrinth of allegations,

regulations, and theories. It was always hard to understand how the Government

planned to put on its case in “less than two weeks” as it has repeatedly told this Court.

Now, shortly before trial, and only because the Court ordered disclosure of any

anticipated 404(b) evidence, the Government has filed a sprawling 16 page “Notice,”

detailing 5 different areas of other crime evidence that will result in complete

confusion for our jury. One area, described as “other crimes Defendants engaged in

to carry out the scheme and generate proceeds from the scheme,” lists “a host of other

serious crimes” that have not been charged, but that the Government wants to

introduce, including bank fraud, identity theft, EKRA, and more. All we need now is

the kitchen sink. The Government’s intention is clear – throw every possible wet

noodle allegation against the jury box with the hope that something sticks. Putting

aside that the proposed 404(b) evidence will certainly overrun the two weeks that the

Government estimated, it is not admissible on several grounds, many of which are

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being briefed by our co-defendants, which we adopt here. We raise this additional

point:

The Government’s first noticed area – “that IGX employed the same scheme

and people to generate orders for laboratory testing as Defendants Perez-Paris,

Caskey, Palacios, and Co-Conspirator Hermesman did for other laboratories” – does

not apply to Diego Sanchez and is therefore inadmissible as it relates to him and

should be excluded. If the Court is going to admit this evidence, then we renew our

motion for severance.

Federal Rule of Evidence 404(b) provides that evidence of other bad acts are

not admissible absent (1) a proper purpose, (2) that the prior bad act occurred and

that the defendant was the actor; and (3) that the probative value of introducing

the evidence outweighs any prejudicial effect the evidence might have. United States

v. Troya, 733 F.3d 1125 (11th Cir. 2013); United States v. Cancelliere, 69 F.3d 1116

(11th Cir. 1995). Here, the government, which bears the burden, cannot meet any of

the three prongs (as demonstrated by our co-defendants). See Huddleston v. United

States, 485 U.S. 681, 689 (1988) (the government must adduce enough reliable

evidence to allow the jury to “reasonably conclude that the act occurred and that the

defendant was the actor.”). Because other-act evidence often invites the jury to draw

improper inferences about the accused’s character, the inquiry “is not a simple

evidentiary one, but rather goes to the fundamental fairness and justice of the trial

itself.” United States v. Burkhart, 458 F.2d 201, 205 (10th Cir. 1972).

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As to Diego Sanchez, there is no proper purpose for admitting the prior lab

evidence, he was not the actor, and any probative value is certainly outweighed by

the prejudicial effect. In an effort to get around these issues, the Government puts

forward a strange theory about why the group brought in Diego Sanchez – the

Government says that they brought him in “because of his experience in finance and

investing in cryptocurrency arbitrages as they wanted to invest the laboratory’s

revenue in cryptocurrency.” Notice at 5. Assuming there is any truth to this, it does

not explain why the alleged bad acts at the prior lab, of which Diego Sanchez knew

absolutely nothing and was not a participant, is relevant or admissible as to him. To

admit this evidence against Diego Sanchez, there must be sufficient proof that the

defendant committed the act.” United States v. Holt, 777 F.3d 1234, 1266 (11th

Cir. 2015) (citing United States v. McNair, 605 F.3d 1152, 1203 (11th Cir. 2010). Even

under the Government’s convoluted theory, there is absolutely no evidence that Diego

committed the prior bad act.

The evidence of the prior labs is not necessary to tell the story of the alleged

fraud at IGX. Either there was fraud at this lab or there was not. That is why the

prior lab evidence is properly classified as 404(b) evidence as it is not required to tell

the story in the Indictment.

Whether it comes in against the co-defendants, it certainly should not come in

as to Diego Sanchez as he was not involved in any prior lab and did not know about

any supposed illegal conduct at other labs. If a jury is permitted to hear this evidence,

then the jury will conclude that IGX was engaged in illegal conduct. Diego Sanchez,

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as an owner, will surely be swept up in it. There is no way that a jury will be able to

put aside the Government’s alleged origin story of IGX when considering Diego

Sanchez’s culpability.

If the Court plans on admitting this evidence, then we renew our motion to

sever. In United States v. Danzey, the Second Circuit found that the denial of

severance was prejudicial error where the case against one defendant was close, and

the introduction of other crimes evidence related to the co-defendant had a significant

spillover effect. The court emphasized that “similar act evidence must be particularly

scrutinized for its prejudicial spill-over effect on a codefendant.” United States v.

Danzey, 594 F.2d 905, 919 (2d Cir. 1979).

The other bad act evidence noticed by the government is similarly

inadmissible. In addition to the evidence of the prior labs, which Diego was not

involved in, the Government seeks to introduce evidence of medically unnecessary

respiratory pathogen panel tests, telemarketing campaigns, “other crimes” used to

carry out the scheme, and audits by the Government and private entities. None of

these extrinsic allegations are inextricably intertwined with the allegations in the

Indictment, each is for the sole purpose of propensity, and any probative value of the

extrinsic bad acts is substantially outweighed by undue prejudice.

Evidence regarding the respiratory pathogen tests and the telemarketing

campaign is not inextricably intertwined with the Indictment – it does not pertain to

the chain of events, explain context, motive or set-up, and it is not necessary to

complete the story of the crime for the jury. See United States v. McClean, 138 F.3d

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1398, 1403 (11th Cir. 1998), quoting United States v. Williford, 764 F.2d 1493, 1499

(11th Cir. 1985). The Government can simply drop the evidence from its case and the

story remains exactly the same. But the Government seeks to admit the evidence so

it can argue that because the lab processed unnecessary pathogen panel tests and

engaged in telemarketing campaigns, it therefore must have also engaged in fraud.

It is pure propensity evidence.

The Government also seeks to admit “other crimes,” including but apparently

not limited to, delivery of a misbranded device, bank fraud, aggravated identity theft,

and uncharged kickbacks. The Government fails to explain how any of these

uncharged crimes are inextricably intertwined, as again, the Government can tell the

story of the Indictment and simply omit these uncharged alleged acts. But the

Government does not want to omit these uncharged acts from its story because it

wants to argue that because Diego Sanchez committed all of these other crimes, he

must have necessarily committed the ones charged. It is the exact type of propensity

evidence that Rule 404(b) prohibits.

Finally, the Government seeks to introduce evidence of payors’s audits. It is

entirely unclear how a payor’s opinion and investigation of IGx’s billing could possibly

be relevant or admissible. The audits would simply introduce the improper opinions

of auditors about billing regulations and practices – but the evidence is not related to

the charged offenses.

While the Government seeks to introduce all of this evidence for inadmissible

purposes, its biggest hurdle is that any probative value of the evidence is

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substantially outweighed by its prejudice. Diego Sanchez will be forced to defend

against every single allegation, far beyond what is alleged or relevant to the trial.

Diego will need to present evidence to counter the extrinsic allegations about

respiratory pathogen panels, telemarketing campaigns, delivery of misbranded

devices, bank fraud, aggravated identity theft, uncharged kickbacks, and audits.

What the Government claimed would be one two-week trial will turn into multiple

trials within a trial and will require months of the Court’s time. The jury will lose

focus on the actual charged allegations – and instead will need to sift through an

unspecified number of crimes that were not charged in this Indictment. It will be

impossible to defend against the actual allegations charged when the Government

has thrown every single possible bad act into its case.

Because the noticed acts are not inextricably intertwined, are pure propensity

evidence, and will require a months-long trial that will only confuse a jury about the

actual issues, the Court should exclude the Government’s Rule 404(b) evidence.

* * *

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Mr. Sanchez requests that the Court hear oral argument regarding the Rule

404(b) argument before making a determination about Mr. Sanchez’s renewed motion

to sever.

Respectfully submitted,

MARKUS/MOSS PLLC
40 N.W. Third Street, PH1
Miami, Florida 33128
Tel: (305) 379-6667
markuslaw.com

By: /s/ David Oscar Markus
David Oscar Markus
Florida Bar Number 119318
dmarkus@markuslaw.com

/s/ Lauren Field Krasnoff
Lauren Field Krasnoff
Florida Bar Number 0086951
lkrasnoff@markuslaw.com

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