☐ County Court ☒ District Court

Boulder County, State of Colorado DATE FILED: July 6, 2020 4:15 PM

1777 Sixth Street, FILING ID: F057AB1BFFF0D
CASE NUMBER: 2014CR437
Boulder, CO 80302
PEOPLE OF THE STATE OF COLORADO
v.
EMILY ELIZABETH COHEN
AKA: Emily E. Andrade
Defendant
COURT USE ONLY
Michael T. Dougherty, District Attorney
Anne Kelly, Deputy District Attorney Case No.
Boulder County Justice Center D0072014CR000437
1777 Sixth Street
Boulder, CO 80302 Div: 6
Phone Number: (303) 441-3700
FAX Number: (303) 441-4703 Ctrm:
Attorney Reg. 38885
PEOPLE’S NOTICE AND MOTION TO ADMIT RES GESTAE, OR IN THE
ALTERNATIVE, OTHER TRANSACTIONS EVIDENCE

The People, through District Attorney MICHAEL T. DOUGHERTY, respectfully give notice to
the Court and move this Honorable Court to allow the People to introduce certain relevant and
probative evidence which is res gestae evidence, or alternatively, is evidence of other
transactions for the limited purposes of: (1) proving Defendant’s motive and intent (mens
rea) to commit the crimes that she is charged with; (2) showing a common plan, scheme or
design, i.e. modus operandi; (3) showing knowledge, state of mind, and absence of mistake
or accident; (4) rebuttal of possible defenses.

I. INTRODUCTION

1. Defendant Emily Cohen faces several counts of felony theft, arising from her practice
as an immigration attorney in Colorado. The victims in this case, many of whom are
undocumented and monolingual, allege that they paid Defendant for legal services they
never received. Specifically, the victims allege that after Defendant took their money,
she did no work, failed to respond to communications, and avoided them for months or
years. The charges stem from Defendant’s conduct as an attorney between 2010 and
early 2014. In 2014, Defendant was charged with more than 50 counts involving theft
and extortion from her prior clients. At the previous trial in 2014, the People chose to
proceed on 21 of the charges. Following the trial, Defendant was convicted of 13
counts of theft.

2. Defendant appealed her conviction to the Colorado Court of Appeals. In March of

2019, the Court of Appeals reversed Defendant’s convictions based primarily on the
introduction of allegations of misconduct unrelated to allegations of theft or client fund
 mismanagement being investigated by the Office of Attorney Regulations. An order of
remand was issued on May 10, 2019, and Defendant’s jury trial is now scheduled to
commence on September 21, 2020.

3. On retrial, the People intend to introduce both res gestae evidence and evidence
admissible pursuant to C.R.S. Rule 404(b). While the admission of res gestae
evidence requires no pretrial notice, the People give notice of the intent to introduce
both res gestae and 404(b) to avoid unnecessary interruptions of the trial or prolonged
argument to determine admissibility.

II. FACTS RELEVANT TO CHARGED CONDUCT

4. The following is a summary of the allegations supporting the specific charges on which
the People are proceeding:

a. Tayde Jimenez and Oscar Gordillo

Tayde Jimenez and Oscar Gordillo are married. Tayde was a legal resident
but Oscar was undocumented and had an active immigration case. Tayde heard
about Defendant through a friend of her family and they met with her in
approximately March of 2012. Defendant had Tayde and Oscar sign a contract
and quoted them $16,000 to assist with Oscar’s immigration case, obtain a work
permit for him, and work on residency documents for both Tayde and Oscar.
Tayde and Oscar paid Defendant $2,500 in cash up front and then made $1,000
payments each month by dropping a check off with the receptionist at
Defendant’s office.

During the first year of her service, Defendant attended two court dates
with Oscar and asked for a continuance at each date. Defendant showed up late to
the second hearing and did not appear to know anything about Oscar’s case. By
that point, Defendant had mostly stopped returning their phone calls. The next
month, Defendant called and told them that she would need an extra $1,500 to
continue with their case. Tayde and Oscar paid $500 of the extra fees but told
Defendant they would not pay her more until she completed the work on their
case. Tayde and Oscar paid Defendant more than $14,000 and never received any
of the permits or documentation Defendant was supposed to secure.

b. Lissa Almaguer and Javier Almaguer

Javier Almaguer came to the United States in 2008. In 2011, he and his
wife, Lissa Almaguer, contacted Defendant in order to apply for resident status
for Javier. Defendant offered to represent them for $9,500, with an additional
$1,470 in application fees for the necessary forms. Lissa and Javier paid
Defendant $2,000 by check in February of 2011. They subsequently paid her
another $3,500 up front and gave her the rest of the fee in cash installments.
Defendant had Lissa and Javier sign a contract, but they never received a copy of

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 it. To make the payments, Lissa and Javier would drop cash off at Defendant’s
office or meet her in coffee shops. After two years with no updates, Defendant
told Javier that he would need to complete a medical exam. Defendant picked up
the results of the medical exam and told Javier someone would call him to set up
an appointment to get fingerprinted. Javier and Lissa never heard anything further
and Defendant stopped responding to their phone calls and emails. Lissa
ultimately contacted immigration directly and learned that Javier’s application
had never been submitted. Lissa and Javier paid more than $10,000 to Defendant
and never received any services in return.

c. Lynette Siew

Lynette Siew came to the United States in 2013 on a J1 Visa. After having
issues with her visa and her employer, Lynette was referred to Defendant. On
October 7, 2013, Lynette explained the issue to Defendant and let her know what
there were forms that needed to be submitted by a certain deadline. Defendant
agreed to represent Lynette for $2,500, which Lynette paid that day by credit card.
Lynette subsequently asked for help applying for a U-Visa, which Defendant
agreed to provide for an additional $2,200. Lynette borrowing money from a
friend and paid the additional amount on October 17, 2013. Between October of
2013 and February of 2014, Lynette tried to contact Defendant on several
occasions, but got limited responses. Lynette did not receive any services from
Defendant.

d. Scott Creevy, Isela Ortiz and Alonso Quezada

Alonso Quezada came to the United States from Mexico in 2005. In

December of 2011, Alonso and his wife, Isela Ortiz, hired Defendant to apply for
residency for Alonso. Defendant agreed to represent them for $5,000. Alonso
borrowed $2,500 from his boss, Scott Creevy, and paid the rest of the money on
February 24, 2012. Defendant told them it would be six weeks to get a work
permit and six months to get residency. Defendant provided Isela and Alonzo
with an invoice showing that she was charging $5,000 for her services. After not
hearing anything for six months, Isela found a personal Facebook page for
Defendant and asked for an update. Isela and Alonzo ultimately learned that
Defendant had not submitted Alonzo’s application until January of 2013. Isela
ultimately received a letter in March of 2013 stating that the petition for a work
permit had been accepted. Isela contacted Defendant for an update and Defendant
told them to wait to be contacted by the National Visa Center. After several more
months without contact, Isela and Alonso contacted the National Visa Center
directly and learned that all the necessary documents had been sent to Defendant
in April of 2013. Isela and Alonso contacted Defendant, who denied ever having
received the documents. Isela and Alonso were finally able to meet with
Defendant in January of 2014. At that meeting, Defendant stated she needed an
additional $600 for a processing fee. Isela tried to pay with check, but Defendant
refused to accept a check and they paid her in cash. Isela and Alonso set up a

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 follow-up meeting in February of 2014 but Defendant did not show up. Between
mid-2012 and February of 2014, Isela contacted Defendant more than 40 times
asking for an update on the case. Defendant mostly ignored Isela’s contacts and
when she did respond, she never provided any updates about the case.

e. Gilberto Burciaga

Gilberto Burciaga came to the United States from Mexico when he was
two years old. In August of 2013, Gilberto retained Defendant to get a permanent
resident card. Defendant agreed to represent Gilberto for $5,000 and charged him
a $300 consultation fee. Gilberto paid the consultation fee in August of 2013 and
then paid the remainder of the $5,000 in two cash payments in November and
December of 2013. Gilberto did not receive receipts or invoices showing his
payments, but Defendant did give him a copy of the contract he originally
received. Gilberto tried to contact Defendant via phone and email for updates on
his case, but he never received any. Gilberto did not receive any documentation or
paperwork connected to Defendant’s representation.

f. Justin Faye

Justin Faye moved to the United States from Sengal in 2004. In 2012, he
hired Defendant in order to change the status of his Visa. He met with Defendant
and paid her $400 cash in October of 2012. He paid her an additional $1,000 by
credit card in September of 2013. After September, he never heard anything
further from Defendant and she stopped returning his phone calls or emails. Justin
never received any documentation based on Cohen’s work, and further never
received receipts or a contract from Defendant.

g. Patrick McConnell and Caroline Commins

Patrick McConnell and his wife, Caroline Commins, are originally from
Canada. In 2013, Patrick and Caroline contacted Defendant to help them apply for
citizenship. Defendant agreed to represent them for $4,000 and said the process
would take three months. Patrick paid Defendant $2,000 in May of 2013 and
$2,000 in June of 2013, using credit cards both times. Defendant gave Patrick
advice on how to travel internationally without his green card, which he had
previously lost. This advice involved providing McConnell with a letter that he
could show border control agents in the event he was stopped while crossing the
border. Defendant also said she would get a special stamp for Patrick’s passport
so that he did not have to show his green card. Patrick was ultimately stopped at
both the Mexican and Canadian border. In August of 2013, while he was detained
at the US/Canadian border, Patrick learned that his application was not in the
immigration database and that the letter Defendant had provided did not have any
legal significance. Patrick reached out to Defendant to see why she never
submitted their applications, but never received a response.

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h. Maria Jimenez-Esparza, Ricardo Valdez-Martinez and Gerry Capone

In March of 2012, Ricardo Valdez-Martinez and Maria Jimenez Esparza

were referred to Defendant to assist them in getting residency paperwork.
Defendant offered to complete both sets of paperwork for $10,000. Ricardo and
Maria completed a contract. Ricardo’s boss Jerry Capone came with them to the
initial appointment and paid Defendant $5,000 on his credit card. Capone also
made a second payment of $5,000 and Ricardo and Maria worked to pay him
back over time. Defendant had originally told Ricardo and Maria the process
would take six months. After six months, Ricardo contacted Defendant and she
said it was going to take longer than she thought. Ricardo and Maria continued
trying to contact Defendant throughout 2012 and up until September of 2013 but
she never answered their calls or returned their messages. In February of 2014,
Defendant reached out to Ricardo and told him that because only he had signed
the contract, Defendant could not complete an application for Maria and that they
would need to set up an additional meeting to have Maria sign the paperwork.
Defendant assured that it would only take two weeks to get Maria’s application
approved after she had the signatures.

i. Sally Creevy and Alejandra Valles

Alejandra Valles was referred to Defendant by Sally Creevy, who was

Alejandra’s boss and knew Defendant because Sally’s daughter was babysitting
Defendant’s daughter. Sally paid Defendant with a $5,000 check to assist in
applying for residency paperwork on Alejandra’s behalf. Whenever Sally would
ask for an update, Alejandra told her that she had been unable to get in contact
with Defendant or had been brushed off. Sally asked Defendant what was going
on and Defendant stated she could not talk to Sally about the case because
Defendant was representing Alejandra, not Sally. Sally called the Office of
Attorney Regulation in 2012 and 2013 to report Defendant’s misconduct.
Alejandra ultimately ended up going to another immigration attorney to complete
her residency application.

j. Nungrunthai Suriyakunphanit

Nungruthai Suriyakunphanit moved to the United States from Thailand.

Nungruthai contacted Defendant in 2013 to assist her with immigration
paperwork. Defendant agreed to represent Nungruthai for $2,000. Nungruthai
signed a contract and was provided a receipt for the $2,000 payment she made to
defendant. Nungrunthai became frustrated after several months where she was not
able to obtain updates from Defendant. Nungrunthai asked Defendant to return
her documents so that Nungrunthai could hire a different attorney. Defendant
refused to return the documents and instead set up a meeting with Nungrunthai.
Defendant then failed to appear for the meetings she and Nungrunthai had set up.

k. Pam Golarz and Kurt Khudaynazarov

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 Pam Golarz contacted Defendant in September of 2013 in order to obtain a
work permit for Khurshid “Kurt” Khudaynazarov. Pam was a host parent for
international students and Kurt had lived with her for three summers. In 2013, he
decided he wanted to stay in the United States beyond the summer to work in the
restaurant industry. Pam contacted Defendant and indicated that they needed to
work quickly because Kurt’s visa was set to expire on September 25, 2013. On
September 9, 2013, Pam paid Defendant $1,500 on her credit card and sent all
Kurt’s documents to Defendant. Pam sent several emails to Defendant throughout
the month of September and Defendant responded the same day saying that they
were working on Kurt’s case and there was no problem, even though Boulder had
flooded. For the next several months, Pam reached out to Defendant asking for
updates or proof that Kurt’s paperwork had been filed. In February of 2014,
Defendant responded to an email Pam had sent by stating that Kurt was in a grace
period and was eligible to work. Kurt was detained and placed on an ICE hold in
April of 2014. It was only then that Pam and Kurt learned that Kurt was not
actually on a grace period or eligible to work as Defendant had promised.

l. Lara Bianco

In June of 2013, Lara Bianco hired Defendant to help her get a visa
through the US consulate in Australia. Lara signed a contract and sent Defendant
$4,700 on June 10, 2013. Lara also paid an additional $270 to cover the cost of a
consulate appointment. Lara frequently reached out to Defendant for an update on
when her appointment with the consulate would be scheduled but she never heard
anything back from Defendant. Lara was forced to travel back to Australia on
June 26, 2013 because her visa was set to expire and she had not received any
documentation of paperwork from Defendant. Eventually, Defendant provided
proof that she had filed Lara’s paperwork on July 31, 2013. Defendant never
provided any explanation for why the paperwork was not filed until nearly two
months after she had first told Lara it had been completed. Lara’s application was
subsequently denied but defendant never explained why. Lara sent Defendant a
termination letter in August of 2013 and asked for her money back but defendant
claimed she had completed all the work on the case.

m. Sandra Cuevas and Juzef Klim

In August of 2013, Juzef Klim found Defendant’s website online and hired
her to assist with his residency paperwork. Juzef and his wife, Sandra Cuevas, met
with Defendant on August 19, 2013. At that time, they signed a contract and Juzef
wrote Defendant a check for $1,500. Juzef and Sandra called and emailed
defendant for updates but never received any response. In October of 2013,
Sandra dropped a letter off at Defendant’s office asking for a refund by the end of
the month since no services had been rendered. Sandra subsequently went back by
the office after not hearing anything from Defendant and learned that her office is
gone and her phone number had been disconnected.

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 III. LEGAL AUTHORITY

a. Standard for Introduction of Res Gestae Evidence

5. Evidence that is part of the criminal episode or transaction with which the defendant is
charged is admissible to provide the fact-finder with a full and complete understanding
of the events surrounding the crime and the context in which the charged crime
occurred. See, e.g., People v. Czemerynski, 786 P.2d 1100, 1109 (Colo. 1990); People
v. Litsey, 555 P.2d 974, 977 (Colo. 1976). Such evidence is generally closely linked to
the crime itself, forms an integral and natural part of an account of the crime, or is
necessary to complete the story of the crime for the jury. People v. Quintana, 882 P.2d
1366, 1373 (Colo. 1994). This type of evidence is considered part of the res gestae of
the offense and it is not subject to the general rule that excludes evidence of prior
criminality. Czemerynski, 786 P.2d at 1109; see also Callis v. People, 692 P.2d 1045,
1051 n. 9 (Colo.1984). Res gestae evidence includes the circumstances, facts and
declarations which arise from the main event and serve to illustrate its character.
Woertman v. People, 804 P.2d 188, 190 n. 3 (Colo.1991). It also includes evidence that
is closely related in both time and nature to the charged offense. See United States v.
McDaniel, 574 F.2d 1224, 1227 (5th Cir.1978), cert. denied, 441 U.S. 952, 99 S. Ct.
2181 (1979). Courts have repeatedly stated that res gestae evidence “is admissible to
provide the fact-finder with a full and complete understanding of the events
surrounding the crime and the context in which the charged crime occurred.” See
Quintana, 882 P.2d at 1373.

6. Res gestae evidence must be relevant under a CRE 401 analysis, and not unfairly
prejudicial under CRE 403 in order to be admissible. People v. Greenlee, 200 P.3d 363,
366 (Colo. 2009). Relevant evidence is that which has “any tendency to make the
existence of any fact that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence.” CRE 401; see also
Greenlee, 200 P.3d at 366 (“Relevant evidence need not prove conclusively the
proposition for which it is offered . . . but it must in some degree advance the inquiry.”)
(internal citations omitted).

7. Evidence which is otherwise relevant “may be excluded if its probative value is

substantially outweighed by the danger of unfair prejudice . . . .” CRE 403. However, the
Colorado Rules of Evidence strongly favor the admission of relevant evidence. See
Quintana, 882 P.2d at 1375. Because of this, evidence should be given its maximum
probative value and minimum prejudicial effect. See id. The trial court should not
exclude evidence as unfairly prejudicial simply because it damages a defendant’s case,
since all effective evidence is prejudicial in the sense of being damaging or detrimental to
the party against whom it is offered. See People v. Asberry, 172 P.3d 927, 933 (Colo.
App. 2007); see also People v. District Court (Matson), 785 P.2d 141, 147 (Colo. 1990).
Evidence is only unfairly prejudicial, pursuant to CRE 403, when it introduces
considerations extraneous to the merits, such as bias, sympathy, anger, or shock. People

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 v. District Court (Carroll), 869 P.2d 1281, 1286 (Colo. 1994).

8. Despite the fact that res gestae evidence may include tangential criminal conduct, it is
nonetheless admissible because:

“[c]riminal occurrences do not always take place on a sterile stage;

and where, as here, the events leading up to the crime are a part of
the scenario which explain the setting in which it occurred, no
error is committed by permitting the jury to view the criminal
episode in the context in which it happened.”

Czemerynski, 786 P.2d at 1109 (quoting People v. Lobato, 530 P. 2d 493, 496 (Colo.
1975)). To be admissible, res gestae evidence must only be relevant, and its probative
value must not be substantially outweighed by the danger of unfair prejudice. See People
v. Rollins, 892 P.2d 866, 873 (Colo. 1995).

9. Thus, appellate courts routinely uphold the admission of evidence as res gestae where
that evidence is part and parcel of the crime charged or provides background for an
offense. See, e.g., Czemerynski, 786 P.2d at 1109 (in prosecution for harassment and
extortion, admission of hundreds of phone calls that occurred before and after the dates
charged as res gestae was proper, as the calls proved identity and allowed the jury to
“understand the context in which the alleged crime occurred”); Asberry, 172 P.3d at 933
(testimony regarding prior contact with defendant by police was admissible as res gestae,
as it helped explain the circumstances of the defendant’s arrest and “gave the jury an
understanding of why the defendant was stopped and thus formed a natural and integral
part of the account of the crime”); see People v. Allen, 944 P.2d 541, 546 (Colo. App.
1996), (victim’s testimony as to certain events leading up to issuance of restraining order
against defendant was admissible in prosecution for criminal trespass and menacing; even
if such events indicated commission of unrelated crimes, evidence was relevant to
establish victim’s fear and context in which criminal trespass and menacing occurred).

b. Standard for Introduction of Evidence Pursuant to Rule 404(b)

10. Evidence of bad character is generally inadmissible when offered to prove that a
defendant acted in conformity with that character. C.R.E. 404(a). Rule 404(b) provides
that evidence of other acts may be admissible to show “proof of motive, opportunity,
intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” This
list is nonexclusive and evidence can be admitted for other permissible purposes.
People v. Cousins, 181 P.3d 365, 369 (Colo. App. 2007).

11. As Mueller and Kirkpatrick stated, “[t]he rule adopts an inclusionary rather than
exclusionary approach making evidence of prior crimes, wrongs, or acts potentially
admissible subject to FRE 403, where offered for any relevant purpose that does not
require an inference from character to conduct.” Cousins, 181 P.3d at 369 (citing
Christopher B. Mueller and Laird C. Kirkpatrick, Evidence § 4.15, at 214 (2d ed.

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 1999)); because the balance required by C.R.E. Rule 403 favors admission, a reviewing
court “must afford the evidence the maximum probative value attributable by a
reasonable fact finder and the minimum unfair prejudice to be reasonable expected.”
People v. Rath, 44 P.3d 1033, 1043 (Colo. 2002) (en banc) (citing People v. Gibbens,
905 P.2d 604, 607 (Colo. 1995)).

12. Rule 404(b) is not limited in application to evidence of other crimes, but permits
evidence of other wrongs or acts, provided the evidence is offered to prove a material
issue and substantive and procedural prerequisites are met. People v. Jackson, 748 P.2d
1326 (Colo. App.1987).

13. “The prosecution must articulate a precise evidential hypothesis by which a material
fact can be permissibly inferred from the prior act that is independent from the
inference forbidden by C.R.E. Rule 404(b) [and] upon a showing of logical (C.R.E.
Rule 401) and legal (C.R.E. Rule 403) relevance under that hypothesis, evidence of
other crimes will not be excluded under the rules of relevance.” Rath, 44 P.3d at 1039
(citing People v. Spoto, 795 P.2d 314, 1318-19 (Colo. 1990)) (emphasis added).

14. The standard of review is abuse of discretion. As such, trial courts are accorded great
discretion in deciding whether to admit evidence of other acts under C.R.E. 404(b), and
abuse of that discretion will only be found “upon a showing that the ruling was
manifestly arbitrary, unreasonable, or unfair.” Rath, 44 P.3d at 1043.

15. Evidence of other acts may be admissible if the evidence complies with the
requirements of People v. Spoto, 795 P.2d 1314 (Colo. 1990).The four prong test
articulated in Spoto requires the trial court to be satisfied by a preponderance of the
evidence that: 1) the evidence relates to a material fact; 2) the evidence is logically
relevant and tends to make the existence of the material fact more or less probable than
it would be without the evidence; 3) the logical relevance must be independent of the
prohibited inference that the defendant has bad character; and 4) the probative value of
the evidence must not be substantially outweighed by the danger of unfair prejudice.
Id. at 1318; see also Rath, 44 P.3d at 1038; People v. Garner, 806 P.2d 366 (Colo.
1991).

16. The first prong of Spoto requires that the other act evidence relate to a material fact. Id.
That is, the fact must be "of consequence to the determination of the action." C.R.E.
401; People v. Herron, 251 P.3d 1190 (Colo. App. 2010) citing, People v. Yusem, 210
P.3d , 458, 464 (Colo. 2009). This first prong does not focus on the other acts evidence,
but rather focuses on the material fact and asks “whether the fact is of consequence to
the determination of the action.” Yusem, 210 P.3d at 464. Material facts will vary
depending on the charges, the facts and the defense. However, as an example, a
defendant’s mental state is a material fact. Id.; See People v. Douglas, 969 P.2d 1201
(Colo. 1988). Whether or not a crime occurred is also a material fact. Cousins, 181
P.3d at 370.

17. To satisfy the second prong of Spoto, the other act evidence must be logically relevant

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 to proving the material fact. Spoto, 795 P.2d at 1318. In other words, the evidence
must have "any tendency to make the existence of the material fact more probable or
less probable than it would be without the evidence" under Colorado Rule of Evidence
401. Motive, though not an element or material fact which need be proven by the
People, is nonetheless logically relevant to material facts and is a “well accepted
method of proving the ultimate facts necessary to establish the commission of a crime,
without reliance upon an impermissible inference from bad character.” Cousins, 181
P.3d at 372, citing Rath, 44 P.3d 1033, 1040 (Colo. 2002). Hence, “proof of other acts
can be introduced to establish motive as the cause of the charged crimes.” Cousins, 181
P.3d at 371.

18. The third prong of Spoto requires the logical relevance of the other act evidence to be
independent of the intermediate inference, prohibited by Colorado Rule of Evidence
404(b), that the defendant has bad character. This prong of the analysis is in conformity
and consistent with C.R.E. 404(a) which prohibits evidence of bad character from being
offered to prove the defendant committed the charged crime. The chain of reasoning
which is prohibited is: (a) the other act evidence leads to an intermediate inference of
the defendant’s poor character, which (b) leads to the ultimate inference that the
defendant probably committed the crime charged because, (c) he acted in conformity
with his bad character. Id. at 372; Spoto, 795 P.2d at 1318.

19. Despite the prohibition against propensity reasoning, Colorado courts have repeatedly
stated that evidence of other bad acts, by their very nature, could support a propensity
inference. See People v. Everett, 250 P.3d 649, 657 (Colo. App. 2010) (discussing the
Doctrine of Chances); People v. McBride, 228 P.3d 216, 227 (Colo. App. 2009); People
v. Willner, 879 P.2d 19, 27 (Colo. 1994). In People v. Snyder, the Colorado Supreme
Court stated that “almost by definition, similar transaction evidence will suggest bad
character and conformity therewith. The third prong of the Spoto test does not demand
the absence of the inference but merely requires that the proffered evidence be logically
relevant independent of the inference.” 879 P.2d 1076, 1080 (Colo. 1994). Thus, there
is no requirement that the other act evidence be completely devoid of a propensity
inference.

20. Consistent with the balancing test found in C.R.E. 403, the fourth prong of the Spoto
analysis, requires the court to balance the probative value of the other acts evidence
against the prejudicial nature of that evidence. This balance “strongly favors the
admission of evidence.” Masters, 58 P.3d 979, 1001 (Colo. 2002); Carroll, 869 P.2d at
1286 (Colo.1994); Quintana, 882 P.2d at 1366. “Unless trials are to be conducted as
scenarios, or unreal facts tailored and sanitized for the occasion, the application of Rule
403 must be cautious and sparing. Its major function is limited to excluding matters of
scant or cumulative probative force, dragged in by the heels for the sake of its
prejudicial effect.” Masters, 58 P.3d at 1001 (quoting United States v. McRae, 595 F.2d
700, 707 (5th Cir.1979)). In addition, the Spoto analysis was revisited in Rath, where
the Court stated that there is a presumption of admissibility of prior evidence once the
Spoto analysis has been met. 44 P.3d at 1033.

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21. “By requiring that the probative value of the evidence in question be “substantially
outweighed” by the danger of unfair prejudice, the rule makes clear that the need for
exclusion must be great.” Masters, 58 P.3d at 1001, quoting Matson, 785 P.2d at 147.
This is because “exclusion is a drastic remedy and less restrictive measures, such as
cautionary instructions to the jury, may suffice to reduce the danger of prejudice to an
acceptable level. Id. Evidence cannot be characterized as “unfairly prejudicial” simply
because it damages the defendant's case. Id.; Carroll, 869 P.2d at 1281. This is because
effective relevant evidence is always inherently prejudicial. Masters, 58 P.3d at 1001.
Rather, the exclusion of relevant evidence, based on a C.R.E. 403 analysis, is only
permitted when the unfair prejudice, substantially outweighs the probative value. Id.
Evidence is unfairly prejudicial “if it appeals to the jury’s sympathies, arouses its sense
of horror, provokes its instinct to punish, or triggers other mainsprings of human
action.” People v. Hulsing, 825 P.2d 1027, 1031 (Colo. App. 1991).

22. In evaluating the strength of the probative value, the court should consider: (a) the
importance of the material facts which the other act evidence is offered, (b) whether
that fact is disputed by the parties, (c) the strength and extent of the chain of
interferences necessary to establish the material fact and, (d) the availability of
alternative means of proof. People v. Herron, 251 P.3d 1190 (Colo. App. 2010).

23. Colorado Rules of Evidence, Rule 104(a) applies to the resolution of preliminary
questions of admissibility of other acts evidence. Garner at 373. According to Garner,
the trial court must find by a preponderance of the evidence that the other act occurred
and that the defendant committed the other act. Id. at 372. The Court must consider the
totality of all the evidence in the case, not just each act independent of the others in
deciding whether it is more likely than not that the factual conditions precedent to
admitting the evidence have been satisfied. Id. at 372. The standard of review is abuse
of discretion which will only be found “upon a showing that the ruling was manifestly
arbitrary, unreasonable or unfair.” Rath, 44 P.3d at 1043.

24. In addition, the Court in Rath also discussed whether other misconduct evidence should
be accorded additional weight toward admissibility if the other conduct is repeated.
The decision shifted the focus from a probabilities analysis to an intent analysis, stating
“[a] greater number of incidents of similar behavior is important in proving that it is
directed or purposive, rather than coincidental.” Rath, at 1043. Further, the Court
provided guidance on the C.R.E. 403 balancing test in the last step of the Spoto
analysis. Beyond logical relevance, the trial court must assess the probative value of
the evidence to the People’s case. Probative value is not considered in isolation, but
must be measured to determine whether the evidence has “marginal” or “incremental”
value as it related to the other evidence in the case.

25. The procedural safeguards of Stull v. People, 40 Colo. 278, 344 P.2d 455 (1960) must
be adhered to by providing cautionary instructions to the jury as to the limited purpose
for which the jury may consider evidence admitted pursuant to C.R.E. 404(b)

26. The court may rely on offers of proof to determine, by a preponderance of the evidence,

11
 that the other conduct occurred and the defendant committed the other conduct. The
Court may make determinations of issues raised in motions in any reasonable manner
pursuant to Rule 12 of the Rules of Criminal Procedure. In People v. Groves, 854 P.2d
1310 (Colo. App. 1992), the Colorado Court of Appeals concluded that it was proper to
present all of the evidence in the case by offers of proof for the trial court’s
determinations of the admissibility of other crime evidence. The trial court is not
required to hold an evidentiary hearing if it can determine from the offers of proof that
the other acts occurred by a preponderance of the evidence. People v. Davis, 218 P.3d
718, 727 (Colo. App. 2008); People v. Moore, 117 P.3d 1, 3 (Colo. App. 2004). In
domestic violence cases, C.R.S. 18-6-801.5 states that the proponent of other acts
evidence shall advise the trial court by offer of proof of such other evidence.

c. Prior Act Evidence May Be Admissible Under Any of Several Theories of

Relevance

27. The Colorado Supreme Court has long recognized that evidence of other similar acts is
relevant and admissible when it is offered for the limited purposes of proving motive,
intent, scheme, plan or identity. See, e.g., C.R.E. 404(b); People v. Dago, 179 Colo. 1,
3, 497 P.2d 1261, 1262 (1972). This is not an exclusive list of the evidentiary
hypotheses which may support admission under 404(b). Other acts evidence may also
be admitted to show a defendant’s state of mind or knowledge, to show modus
operandi, to show a common plan or scheme, or to refute a claim of self-defense or
mistake. See People v. Cook, 22 P.3d 947 (Colo. App. 2000) (other act evidence
allowed to show intent, identity, motive, modus operandi, common scheme or plan);
People v. McKibben, 862 P.2d 991 (Colo. App. 1993) (other act evidence to show
modus operandi); People v. Groves, 854 P.2d 1310 (Colo. App. 1992) (other act
evidence for modus operandi); People v. Delgado, 890 P.2d 141 (Colo. App. 1994)
(other act evidence for common scheme or plan, modus operandi); Douglas v. People,
969 P.2d 1201 (Colo. 1998) (en banc) (other act evidence for state of mind and to rebut
claim of self-defense); People v. Rowe, 318 P.3d 57, 64 (Colo. 2012) (other act
evidence to show motive and rebut claim of accident or mistake).

28. There is generally no requirement that the other crimes, wrongs, or acts offered be
similar to the charged crime in order to show proof of intent, preparation, plan or lack
of mistake or accident under Colorado Rule of Evidence 404(b). Spoto, 795 P.2d at
1320.

29. In People v. Rath, the Court found that 404(b) contains no separate requirement of
similarity between the other act evidence and the primary act charged. 44 P.3d at 1040.
Rather, the need for similarities in other act evidence depends on the evidentiary
hypothesis under which it is admitted. When evidence of other crimes is offered to
show a defendant’s motive for committing a charged offense or to show the other
crimes were part of a preparation or plan to commit a charged offense, similarity of
crimes often has no significance whatsoever. Id. When other transaction evidence is
offered to show identity, the need for similarity of the evidence is increased. Id.
However, when other transaction evidence is offered to show modus operandi, the

12
 degree of similarity of the evidence that is needed will depend on the ultimate fact for
which it is being offered. Id.

30. Other-crimes evidence demonstrating a common design or modus operandi has been
allowed not only to show who committed a crime, but also to prove that a crime
actually occurred. Rath, 44 P.3d at 1042 (citing People v. Luczak, 306 Ill.App.3d 319,
239 Ill.Dec. 698, 714 N.E.2d 995, 1001 (1999); People v. Fuller, 117 Ill.App.3d 1026,
73 Ill.Dec. 474, 454 N.E.2d 334, 341–43 (1983)). While “it is not essential that each of
the prior acts replicate in all respects the charged offense in order for evidence of
similar transactions to be admitted, it is sufficient that evidence of the other acts and
offense charged, considered in its totality, manifests significant distinctive features
making it more likely than not that the defendant committed the charged offense.”
People v. Bolton, 859 P.2d 311 (Colo. 1993); See People v. Delgado, 890 P.2d 141
(Colo. App. 1994) (a common plan may refer to two or more acts that, even though
they lack substantial similarities, an identifiable common purpose or continuous scheme
exists). Stated differently, where the similarity between the charged conduct and other
acts is great, it shows a specific tendency on the part of the defendant to engage in the
conduct at issue rather than an inference that the defendant previously acted badly so he
must have acted badly in this case. People v. McBride, 228 P.3d 216, 227 (Colo. App.
2009).

IV. LEGAL ARGUMENT

31. The People bear the burden of proving every theft charge against Defendant beyond a
reasonable doubt. The burden is more complex in this case because lawyers are entitled
by the Rules of Professional Conduct to take client funds in advance as the defendant
did here. Of course, they are also required to do actual work for their clients or return
the funds. This case requires the People to demonstrate that when the defendant
collected money from her clients, something most lawyers do up front, she had no
intention of doing any work or giving the money back.

32. Evidence supporting the defendant’s intentions – or lack thereof – when taking her
clients’ money, is critically important in this case. Moreover, evidence that shows a
common and consistent plan, knowledge, and absence of mistake or accident in relation
to the unlawful permanent deprivation of these funds from the victims is essential to
prove the defendant’s criminal mindset.

33. The People have narrowly tailed the proposed evidence to include only that information
that would logically support a conclusion that the defendant never intended to do any
work for the money she received and never intended to return the victims’ money. In
addition, the evidence is narrowly tailored to support a conclusion that the defendant
went to great lengths to conceal her crimes. Finally, the evidence is narrowly tailored
to support the conclusion that the defendant was not just a disorganized, overworked
lawyer, but that she never intended to be the victims’ lawyer at all.

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34. A Proffer of the anticipated scope and nature of the evidence will be set out below.

PROFFERED EVIDENCE PART ONE: Client Interactions and Law Practice.

a. Defendant’s Interactions with Her Clients and the Manner in Which She
Handled Her Law Practice Is Central to Victims’ Accounts of Fraud and Theft and,
Therefore, Admissible Res Gestae Evidence

i. Defendant’s client interactions

35. The way Defendant interacted with her clients is a central piece of the victimization
story; it is direct evidence of Defendant’s intent to permanently deprive her clients of
their money. For both the named victims and the other act witnesses discussed infra, the
People seek to introduce a complete picture of Defendant’s interaction with her clients.
For instance, on several occasions, Defendant misrepresented clients’ status based on the
progress of her work or lack thereof. She told her clients, for instance, that their case was
in a “grace period”, that they were legally permitted to travel when they were not, or that
the application for status was “pending” when she had never even filed it. On other
occasions, Defendant lied to clients, or had staff or the receptionists at her various office
spaces lie on her behalf, about her availability or whereabouts. In still other incidents,
Defendant grew frustrated with clients questioning her progress on their cases and
blamed them for failing to complete work or threatened them with immigration
consequences if they continued to press her.

36. All of the transactions laid out above, and contained elsewhere in this Motion, are
necessary to provide the jury with a complete picture about Defendant’s client
interactions. These interactions explain the background of Defendant’s conduct and client
relationships and color the way in which clients responded. Unlike a less sophisticated
theft, which may be a crime of opportunity completed almost as soon as it starts,
Defendant’s actions took a more nuanced approach. Defendant was on notice of client
complaints and pending investigations as early as mid-2012. During the time frame
alleged in the Criminal Complaint, Defendant did or said just enough to prevent or delay
additional complaints by causing her clients to believe she was working on their cases,
rather than almost immediately pocketing their money and forgetting about them. For
instance, several clients relied on Defendant’s statements about their status, only to be
detained by federal agents for improper paperwork. Others allowed their immigration
cases to languish for years because Defendant told them she had completed the necessary
paperwork or blamed delays on the court system. As a result, the entirety of Defendant’s
client interactions took place during the ongoing timeframe involved in Defendant’s theft
of client funds.

37. It is essential that both the named victims and the other act witnesses be able to describe
their complete interactions with Defendant in order to give the jury an accurate
understanding of the charges in this case. Furthermore, it would be nearly impossible for
the witnesses to parse out and describe their interactions with Defendant without talking
about the information discussed in this Motion. Such efforts would also risk confusing or
14
 misleading the jury and could make it appear that the parties are intentionally hiding
information from them. Furthermore, the evidence is relevant because, after receiving
payments, Defendant’s entire interaction with a client consisted of efforts to stall or
conceal so her clients did not discover or report the theft of their funds. This evidence is
closely related to the theft in both nature and timing and demonstrates the Defendant’s
consciousness of guilt. Finally, this evidence is not unduly prejudicial. The probative
value of Defendant’s repeated efforts to cover up her actions, avoid clients, or shift the
blame is incredibly high, particularly given the nature of the charges in this case. As such,
the People seek to introduce res gestae evidence, as outlined in this Motion, explaining
the full scope of Defendant’s interactions with her clients, both as named victims and
other act witnesses.

38. In addition to being admissible as res gestae, evidence of Defendant’s client

interactions is also admissible for several non-propensity purposes under C.R.E. 404(b)
as it goes to Defendant’s intent to defraud, knowledge, absence of mistake or accident,
and common scheme or plan. If the Court is not inclined to introduce this evidence as
res gestae evidence, the People request the opportunity to more fully articulate the
appropriateness of its admission pursuant to C.R.S. 404(b).

ii. Defendant’s handling of her law practice

39. The People intend to introduce evidence of the manner in which Defendant managed
her law practice as res gestae evidence. In the first trial, the People presented evidence
of Defendant’s use or misuse of virtual offices. A virtual office is a business where the
tenant (in this case, Defendant) pays rent in exchange for access to an answering
service and mailbox. Tenants can rent conference rooms as needed but do not have a
permanent office in the building. According to employees working for the virtual
offices, Defendant’s clients would often show up for appointments with Defendant, but
nothing would be scheduled in their system. Defendant would often fail to appear for
these meetings and would be totally unreachable by phone.

40. On multiple occasions, Defendant asked the virtual office employees to say that she
was in court if people called or stopped by. Clients were often upset and frustrated by
Defendant’s failure to return phone calls or show up for meetings. The staff at the
office buildings would try to deescalate the situation but there was often a language
barrier and they had little information to provide Defendant’s clients.

41. During the flood in 2013, Defendant asked the virtual office employees to lie to her
clients and tell them the office was closed due to the flooding. The staff refused. On
numerous occasions, Defendant’s clients would come to the reception desk to make
cash payments. Defendant would instruct the receptionists to have the client write their
name on an envelope and then place the envelopes in her mailbox. The receptionists
explained that the staff was uncomfortable accepting cash payments. The employees

15
 will testify that at each office space, Defendant moved out due to non-payment of rent
and left no forwarding information. Clients continued to call or show up after she
moved out.

42. Evidence that the defendant was almost always unreachable and purposefully absent for
her clients is direct evidence of her intent to permanently deprive her clients of their
money.

43. The People intend to introduce similar evidence during the retrial in this matter. The
evidence constitutes res gestae in that it provides context for and corroborates the
accounts of multiple witnesses and victims explaining their difficulties in getting in
touch with Defendant. Defendant’s handling of her legal practice does not constitute
criminal wrongdoing or misconduct and is not a breach of any ethical duties as an
attorney. As such, the prejudicial nature of the evidence is small. Such conduct, is
closely related to the theft counts and is direct evidence of the defendant’s state of mind
and provides context for the efforts she would undertake to avoid clients once she had
received payment. This evidence is also relevant and admissible as 404(b) evidence as
it demonstrates the Defendant’s state of mind, knowledge, intent, and the ongoing
scheme to defraud clients. If the Court is not inclined to introduce this evidence as res
gestae, the People request the opportunity to articulate the appropriateness of its
admission pursuant to Rule 404(b).

PROFFERED EVIDENCE PART TWO: Defendant’s Bankruptcy

b. Defendant’s Bankruptcy is Material and Admissible Evidence of Defendant’s

Motive and State of Mind

44. Pursuant to Rule 404(b), the People intend to introduce evidence related to Defendant’s
Chapter 7 Bankruptcy proceeding filed on January 4, 2013. Specifically, the People
intend to introduce the fact and timing of the proceeding, as well as admissions the
Defendant makes during the course of the bankruptcy.

i. The Existence and Timing of the Bankruptcy Proceedings.

45. The fact that the Defendant’s financial situation was so dire that she needed to file for
bankruptcy is material evidence of the defendant’s motive for stealing from her clients
and her intent to permanently deprive her clients of the value of their money.

46. Defendant claimed a total of approximately $200,000.00 of consumer debt in her

bankruptcy petition compounded during the period of time she was stealing money
from her clients. Her bankruptcy petition discloses various medical bills, student loans,
credit card debt and other personal finances. Her dire financial situation corresponds
with the urgency she demonstrated in collecting funds from her clients.

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47. In addition to the fact of the bankruptcy and its relevance in demonstrating motive, the
timing of the bankruptcy is also relevant. Defendant filed for bankruptcy at a time that
directly corresponds with an uptick in Defendant’s fraudulent tactics and concealment
efforts. The fact and timing of the bankruptcy proves that, during the time of the thefts,
she had insufficient funds to meet her obligations to creditors. This evidence is highly
relevant to prove motive, state of mind, lack of mistake.

ii. Admissions Made During Bankruptcy Proceedings

48. In addition to the existence and timing of the bankruptcy, the People intend to introduce
the Defendant’s admissions made during the course of the bankruptcy about her current
financial situation. Statements about her dire financial circumstances are relevant to
demonstrate her motive, state of mind and lack of mistake.

49. Specifically, the defendant declares that her income for 2011 and 2012 was derived
solely from her law practice, or her clients’ money. In addition, she provides her own
version of her financial position, her assets and her liabilities.

50. In addition to demonstrating motive, Defendant’s admissions in her bankruptcy

paperwork would provide the jury with context for the various bank statements
obtained as part of the criminal case. For instance, the Defendant had a large number
of bank accounts and transferred money frequently. These are statements of Defendant,
made about her financial situation during the time that she was stealing her clients
money. They are relevant and should be admitted.

iii. 404(b) Analysis

51. The Defendant’s bankruptcy, including the timing of it and the statements the defendant
made in filed documents, is relevant to the defendant’s state of mind, motive and lack
of mistake. The fact that Defendant filed for bankruptcy during the same timeframe as
some of the charged counts makes it more likely that Defendant would resort to stealing
client funds than if she were not under financial pressure. Additionally, there is no
inference that merely because Defendant filed for bankruptcy she was a bad person who
would steal from clients. Rather, the relevancy of the bankruptcy proceedings has an
independent evidentiary significance going directly to the material issues in the case.
Finally, the probative value of this evidence is not substantially outweighed by any
prejudicial impact. Indeed, filing for bankruptcy itself is not a criminal act making the
prejudicial effect of such evidence minimal. As such, this Court should admit this
evidence under C.R.E. Rule 404(b).

17
 PROFFERED EVIDENCE PART THREE: OARC Investigation

c. The Investigation of the Defendant by the Office of Attorney Regulation, and the
Defendant’s Knowledge of it, is Direct Evidence of the Defendant’s State of Mind and
Refutes Any Claim of Carelessness or Mistake.

52. The People intend to introduce evidence that Defendant was the subject of disciplinary
proceedings brought on behalf of the People of the State of Colorado by the Office of
Attorney Regulation Counsel of the Colorado Supreme Court. This evidence is
admissible as res gestae evidence and pursuant to Rule 404(b).)

53. Specifically, the People intend to introduce (1) evidence of the fact that Defendant was
aware at least as early as May of 2012 that she was being investigated for mishandling
of client funds; (2) evidence of the nature of the allegations related specifically to
mishandling of client funds, and (3) evidence of the OARC’s unsuccessful attempts to
retrieve client files by the appointed inventory counsel.

54. The Court of Appeals has provided the Court with specific guidance regarding what
aspects of the OARC case are inadmissible: “[w]e conclude that while some of the
evidence of the fact of and basis for the investigation could come in, much of the
evidence about the investigation and OARC’s findings, shouldn’t have.” People v.
Cohen, 440 P.3d 1256, 1259 (Colo. App. 2019). The Court went on to note that, “many
of the assertions don’t have any bearing on whether defendant committed theft. To be
sure, the fact that OARC had informed defendant of her ethical obligations concerning
handling of client funds bore somewhat on defendant’s knowledge and intent, but the
lengthy complaints went far beyond those issues.” Id. at 1262.

55. The appellate court has already reviewed the evidence and found that the existence of
the OARC complaints dealing with client funds, and Defendant’s knowledge thereof,
are relevant to Defendant’s knowledge and intent. The Court of Appeals distinguished
the existence of the OARC complaints from the contents of the complaints themselves.

56. The People obviously do not seek to introduce any of the impermissible evidence the
Court of Appeals pointed to in its reversal. Rather, the People intend to limit testimony
related to the OARC case to those facts that “bore on” defendant’s knowledge and
intent that she was stealing her client’s money and trying to cover her tracks.

57. As mentioned above, a significant hurdle which the prosecution faces in relation to the
current case is the requirement to prove beyond a reasonable doubt that Defendant
intended to permanently deprive the victims of the client funds that they voluntarily
passed to her. The rules of professional conduct govern the manner in which client
monies must be handled by an attorney, the basis on which they must be held in trust
for the client, and the attorney’s obligations in relation to such funds; for example, the
obligation to account to the client for excess funds, and to return client files and
documents unless a valid lien is asserted by the attorney. The defendant’s knowledge

18
 of this rule in the first instance by virtue of her license to practice law, but also by
virtue of repeated warnings by OARC about her obligations, is relevant to prove
motive, intent and lack of mistake.

i. The Existence of the OARC Investigation, and the Date Defendant

Became Aware of it, Are Relevant to Defendant’s Intent.

58. The Defendant was aware that the OARC was investigating claims of client fund
mismanagement as early as 2012. The evidence will show that she deposited her
clients’ funds almost exclusively into her personal bank accounts or transferred the
funds into personal accounts almost immediately after receiving them in violation of
the Rules of Professional Conduct. Moreover, Defendant kept doing it after she became
aware she was being investigated for that precise ethics violation.

59. It is highly relevant to the People’s efforts to prove Defendant’s intent to permanently
deprive in the current felony theft proceedings that Defendant was aware of an ongoing
investigation into her handling of client funds and the time she became aware. After
this investigation had begun, payments of client funds into Defendant’s personal
accounts must be viewed in light of her knowledge of the ongoing investigation into her
handling of such funds. If Defendant truly had innocent intentions and was simply
incapable of managing her trust account, her conduct should have changed once she
learned about the OARC complaints. Her culpability is accordingly linked to her
knowledge of what was happening in the disciplinary proceedings, and indeed cannot
be truly assessed by a jury unless they are aware of the fact that this was happening.

60. Following the Court of Appeals’ opinion, the parties now have a roadmap for the
manner and extent to which this evidence is admissible in Defendant’s retrial. The
Court of Appeals stated that, “[w]e conclude that while some of the evidence of the fact
of and basis for the investigation could come in, much of the evidence about the
investigation and OARC’s findings, shouldn’t have.” People v. Cohen, 440 P.3d 1256,
1259 (Colo. App. 2019). The Court went on to note that, “many of the assertions don’t
have any bearing on whether defendant committed theft. To be sure, the fact that
OARC had informed defendant of her ethical obligations concerning handling of client
funds bore somewhat on defendant’s knowledge and intent, but the lengthy complaints
went far beyond those issues.” Id. at 1262. As such, the appellate court has already
reviewed the evidence and found that the existence of the OARC complaints dealing
with client funds, and Defendant’s knowledge thereof, are relevant to Defendant’s
knowledge and intent. The Court distinguished the existence of the OARC complaints
from the contents of the complaints themselves. At this point, the People have no
intention of admitting the substance of the complaints or discussing components of the
complaints that bear on ethical violations other than theft or mishandling of client
funds.

61. Evidence of the pending OARC investigation is res gestae because some of the charged
victims will testify that they filed complaints against Defendant as a result of her
handling of their immigration cases.

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62. In addition to being admissible as res gestae evidence, the existence of the OARC
complaints involving client funds are also relevant and admissible for several non-
propensity purposes under C.R.E. 404(b). Similar to a bankruptcy proceeding, there is
no criminal component inherent in the OARC investigations and there is no stigma of
moral turpitude involved. However, such testimony is necessary to prove Defendant’s
knowledge, intent, and absence of mistake or accident. The Court of Appeals has
already held that such evidence is relevant and properly admitted during trial for these
reasons. Cohen, 440 P.3d at 1262.

ii. Factual Evidence from the Investigator for Inventory Counsel Should
be Admitted

63. In addition to the actual OARC investigation related solely to client fund
mismanagement, the People intent to introduce evidence that the defendant went to
great lengths to hide the evidence of her theft. Several victims and other act witnesses
will testify that they repeatedly requested that Defendant return their documents or
client files to them so they could provide the information to different attorneys. Most of
them never received their client files back from Defendant. One of the questions very
likely to be asked by a jury in relation to this case is “Where are the client files?” The
People intend to introduce evidence from an “appointed inventory counsel”, or a lawyer
designated by OARC to sort through Defendant’s files to assist the victims of her
crimes. That witness will describe her failed efforts to track down the evidence of
defendant’s non-existent work product.

64. It is important for the People to be able to adduce all evidence to explain why these are
not available, and to document the efforts made by both law enforcement and the
investigator for inventory counsel to locate and retrieve these files. Otherwise, the jury
might feel that this was a critical piece of evidence which had not been obtained by the
People in prosecuting Defendant. The fact that this was ultimately unsuccessful, and
that even a professional investigator was unable to obtain the files, also corroborates the
evidence from the many clients who were also frustrated and unsuccessful in their
efforts to get their files returned. This evidence in and of itself necessitates the mention
of the OARC case, and again the People argue that this is truly res gestae and is part of
the fabric of the case.

65. Furthermore, the evidence is relevant for several non-propensity purposes under 404(b).
The lack of client files does not speak to Defendant’s bad character or her propensity to
commit the offenses in this case. However, as argued throughout, the People are
required to overcome an argument that Defendant was just a bad lawyer. This is not
simply a case where Defendant’s files were disorganized or she was not adequately
communicating with clients about her progress on their cases; rather, Defendant took

20
 money from various clients without opening a file or maintaining any documents
related to the work she was contracted to complete. This complete lack of client work
product speaks to Defendant’s intent and motive in this case, namely it shows that
Defendant was not making any effort whatsoever to complete work for the victims,
despite her assertions for months, even years, at a time that she was working on their
cases.

iii. Defendant’s Breaches of the Rules of Professional Conduct are

Relevant and Admissible to Show Her Intent to Permanently Deprive and
Her Culpable Mental State.

66. Most jurors are unfamiliar with the ethical obligations governing an attorney’s handling
of client funds and could believe that Defendant’s conduct was standard for
immigration attorneys. This confusion could also lead to difficulty ascertaining
Defendant’s intentions as they related to the funds paid by the victims in this case. As
such, the People seek to introduce evidence showing that Defendant breached the
Colorado Rules of Professional Conduct in relation to her handling and retention of
client monies.

67. The sheer number of times the Defendant violated professional conduct rules related to
client funds is direct evidence that the Defendant’s actions were not merely a result of
negligence, oversight or mistake. Rather, such blatant violations of the Rules of
Professional Conduct are direct evidence of Defendant’s intent in relation to the monies
that she received from the victims in the current case.

68. The People intend to introduce the testimony of an expert in attorney ethics and the
Colorado Rules of Professional Conduct. The Court of Appeals approved of this
testimony. Indeed, the People had an attorney qualified as an expert witness to discuss
these concerns during the first trial. During the first trial, the Court provided the jurors
with a jury instruction taken from the Rules of Professional Conduct explaining how an
attorney earns funds from clients and when such funds should be transferred from a
COLTAF account. In addressing the trial court’s failure to supplement the instruction
following a jury question, the Court of Appeals held that, “[t]he instruction accurately
stated Colorado’s ethical rules on how an attorney should handle client funds. And it
could have helped the jurors understand the elements ‘without authorization’ and
‘intent’ in the context of the case.” Cohen, 440 P.3d at 1265. On retrial, the Court held
that any such instruction must also include the explanation that a violation of the Rules
of Professional Conduct does not in and of itself satisfy any of the elements of criminal
theft. Id.

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69. By explaining how an instruction addressing the Rules of Professional Conduct should
be fashioned on retrial, the Court of Appeals acknowledged that testimony regarding
Defendant’s breaches of the Rules of Professional Conduct is appropriate and
admissible. In accordance with the Court of Appeal’s ruling the People again seek to
admit this evidence during their case-in-chief as it relates to Defendant’s state of mind,
knowledge and intent.

70. As laid out supra, evidence of the OARC complaints and investigation into Defendant
are highly relevant to the central issues in this case and Defendant’s knowledge and
intent with regard to how she handled client funds. The Court of Appeals has already
reviewed this matter and determined that there was no error in admitting evidence
regarding the existence of the complaints regarding handling of funds, the loss of client
files, or the violation of the Rules of Professional Conduct. The People are highly
sensitive to the Court of Appeals opinion in this matter and will exercise caution to
ensure that the information is relevant to the theft of client funds, and that the
prejudicial nature of the evidence that is admitted does not substantially outweigh its
probative value. Although there are other complaints and complainants involved in the
OARC case, this evidence can be “sanitized” to prevent any reference to the individual
complainants or any discussion of the complaints beyond an explanation that they
related to theft and/or handling of client funds. Furthermore, the People do not intend to
elicit evidence regarding poor legal advice, dishonesty, or other ethics violations, that
do not bear on Defendant’s handling of client funds or are not contained in this Motion.

PROFFERED EVIDENCE PART FOUR: Additional Victims

d. The Sheer Number of Similar Patterns of Victimization is Material and Relevant to

Prove Intent, Motive, Modus Operandi, Common Plan/Scheme, Lack of Mistake and to
Rebut Claims of Witness Fabrication.

71. Defendant will likely claim that she was simply a bad lawyer, that all of her actions
were merely mistakes. However, a mistake looks very much like nefarious intent if
repeated over and over again in the same way. The People intend to present evidence
of other victims who had almost identical experiences with Defendant to overcome any
argument that Defendant was merely incompetent or a bad lawyer. This evidence is
relevant and admissible as 404(b) evidence bearing on Defendant’s common scheme or
plan and/or modus operandi, intent, lack of mistake and to rebut claims of fabrication.

72. Time and time again, Defendant’s interactions with each client followed the same
general pattern. The story these uncharged victims will tell is illuminating. In each
instance, Defendant was very cooperative and communicative with the client during the
initial stages of the representation. At their first meeting with Defendant, she was
gracious and confident in her ability to assist. She would always take a down payment
from the client and may or may not have provided them with a contract or a receipt for
their payments. The contracts she did provide were always in English.

22
73. Once there was an agreement between the parties and money had changed hands,
Defendant became nearly impossible to reach. The only time Defendant was proactive
in contacting clients or responsive to their requests was to solicit or schedule additional
payments. When clients became concerned about delays in their cases or questioned
whether Defendant was actually performing work on their behalf, Defendant made
excuses for her conduct, blamed the clients themselves, or blatantly ignored their
inquiries.

74. Several clients were strung along for years by Defendant’s excuses and inaction. On
multiple occasions when clients grew frustrated or retained new attorneys, Defendant
overtly lied, made threats, or attacked their character. In all instances, Defendant failed
to complete the agreed upon services and left her clients to fend for themselves or pay
new attorneys to perform the same services she had already been paid to do. The
following is a summary of the proffered 404(b) evidence.

i. 404(b) Witness Summary

Miguel Araiza, Miriam Araiza and Veronica Hernandez

During the summer of 2013, Miriam Araiza was placed on an immigration

hold by ICE. Her mother, Veronica Hernandez, knew of Defendant because
Defendant had previously helped her with a traffic ticket. As a result, Veronica
and her son, Miguel Araiza, went to Defendant for help. Defendant stated she
could have Miriam out of immigration custody within six months and needed a
$5,000 fee. Miguel signed a contract with Defendant—in English—and they set
up a payment plan because Veronica and Miguel needed to borrow money from
friends and Veronica’s employer. On several occasions, Miguel met Defendant
outside a Safeway in order to give her cash payments. Miguel requested a receipt
but Defendant said she did not provide receipts. Veronica got a check from her
friend Sheila Fortune to pay part of the legal fees, but Defendant refused to accept
the check and made Veronica go to the bank and get cash instead. At some point,
Defendant told Miguel she would now need $13,000 for her work. When asked
about the increase, Defendant said she had to pay her rent and associates and take
care of her daughter. Miguel went to all of Miriam’s court dates and reported that
Defendant was present for two court dates but did not say anything to the judge.
Defendant did not show up for the last court date and never told the family that
she would not be present. Miguel and Veronica went to Defendant’s office on
several occasions. They were always placed in a conference room and told that
Defendant was in court but would call in so they needed to answer the phone
when it rang. Defendant never called and they always left without speaking to her.

In October of 2013, Miriam was ordered deported. When Defendant told

Miriam the news, Miriam asked Defendant to file an appeal on her behalf. As the
appeal deadline was approaching, Veronica went to a new attorney, who told
Veronica that she had been taken advantage of by Defendant. The new attorney,
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 Sandra Saltrese-Miller, contact Defendant in an attempt to get Miriam’s file and
an update on Miriam’s appeal. Defendant repeatedly told Saltrese-Miller that
Miriam had told her not to file the appeal and had terminated her services.
Defendant never filed an appeal on Miriam’s behalf and never provided her file or
any documentation to Saltrese-Miller so that Saltrese-Miller could file the appeal
herself.

Kelvin Melgar and Rosario Montelango

Kelvin Melgar moved to the United States in 2009 from Honduras. Kelvin
was undocumented and living in Boulder County in May of 2012 when he was
arrested for a DUI and placed on an ICE hold. Kelvin was able to bond out and a
friend referred him to Defendant. Kelvin spoke with Defendant on the phone and
met her in an office building in Denver. Defendant told her that her fee would be
$2,000 for the DUI case and $10,000 for the immigration case. They set up a
payment plan where Kelvin would pay $1,000 a month. Kelvin gave Defendant
$1,000 in cash and she produced a paper receipt for him. Defendant also had
Kelvin sign a contract that was written in English; Kelvin was never provided
with a copy of the contract.

Over the next several months, Kelvin would call Defendant every month
when he was ready to make a payment and she would either come by his office to
pick it up or she would have him go to her office to drop the payment off. Kelvin
also attempted to call Defendant several times to discuss his cases, but the only
time she would return his calls was when he stated he had money to make a
payment to her.

In August of 2013, Kelvin retained a different attorney after Defendant

failed to appear for an immigration hearing. Defendant also took an additional
$420 for a filing fee after Kelvin informed Defendant that had married Rosario
Montelango but failed to file the requested paperwork. In November of 2013,
Kelvin s new attorney reached out to Defendant who claimed that Kelvin had only
paid her $150 and had failed to cooperate with her. Defendant further claimed that
Kelvin’s marriage was a sham. Defendant never responded to requests by Kelvin
or his new attorney for a copy of the contract Kelvin signed or any accounting for
services she had provided.

Macario Soto Ordaz and Gladys Galvan

Macario Soto Ordaz came to the United States from Mexico around 2000
and had three special needs children with Gladys Galvan. In February of 2011,
Macario was arrested for domestic violence and placed on an ICE hold. A friend
referred Macario to Defendant around the summer of 2011. Macario spoke to
Defendant over the phone and set up a meeting. Defendant told Macario that she
would need a $500 payment that day if he wanted to retain her services.
Defendant quoted Macario $10,000 for her services. Defendant stated that it could

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 take as long as five years for him to get residency documents, or that if they could
pay her $5,000 upfront, she could get him a work visa within six to 12 weeks.
Macario set up a payment plan with Defendant and agreed to pay $500 per month
for a work visa. Defendant had Macario sign a contract but he was never provided
with a copy.

Macario made several payments to Defendant and provided her with all
the documents she had requested in order to obtain his work payments. Macario
often met Defendant in a Wells Fargo parking lot in order to receive her payments
and told Defendant she could not complete the paperwork until she received more
money. Defendant would call Macario every month to receive her payment, but
did not respond to phone calls or emails by Macario and Gladys asking for
updates on the case. By June of 2013, Macario had paid $5,800 to Defendant but
had not received a work visa or any update on his residency status.

In August of 2013, Defendant emailed Gladys a contract, in English,

reflecting that they had paid $5,800 toward a total of $10,000 owed and
explaining the breakdown for when fees would be earned. The contract was
different than the one Macario had signed years ago and was unsigned. On two
occasions in the fall of 2013, Defendant failed to tell Macario that his court dates
had been moved and when she finally appeared in court on his behalf, she claimed
Macario had not provided her the necessary documentation to work on his case,
even though Macario had provided the materials to her more than a year earlier.
Macario never received a work permit or residency paperwork related to
Defendant’s services.

Brenda Ramos, Victor Alejandro Reyes-Nunez and Rosa Reyes deDiaz

Brenda Ramos and Victor Reyes-Nunez first met with Defendant in the
summer of 2013 after seeing her services advertised on Univision. Victor was
legally present in the United States but Brenda was undocumented. Defendant
told Victor that he would need to take steps with his own residency in order to
help Brenda obtain hers. Defendant had told Victor and Brenda to bring all their
documents with them to the meeting and told them she would need $1,500 to
begin the process. Defendant took their documents and $1,500 in cash. When
Victor asked for a receipt and a contract, Defendant stated it was too late in the
day for her to provide them with any documentation. For the next month, Brenda
and Victor stopped by Defendant’s office on several occasions and called every
week. Defendant made multiple excuses about why she could not see them and
ultimately stopped answering their phone calls. A few weeks later, Victor’s
mother Rosa Reyes deDiaz called Defendant pretending to be a new client.
Within moments of leaving a message, Rosa received a return call from
Defendant. Rosa confronted Defendant about committing fraud and demanded
that Defendant return Brenda and Victor’s documents. Defendant refused and told
Rosa that if she continued to press the issue, Defendant would call ICE and report
Brenda’s undocumented status. Victor and Brenda never received residency

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 paperwork and Defendant kept the documents they had provided during their
initial meeting.

Jose Madrid-Martinez

Jose Madrid-Martinez was arrested for a criminal charge in August of

2012 and then subsequently detained by immigration officials. After Jose was
released from custody, a friend referred him to Defendant to handle the
immigration case. Jose met Defendant at a Starbucks in mid-August of 2012.
Defendant told Jose that she would charge $10,000 to handle his immigration and
criminal cases, as well as getting him a work permit. Defendant stated that she
would need $5,000 up front to start working on the case. Jose was able to pay
$2,500 cash at their initial meeting. Defendant provided Jose with a written
receipt. Defendant ultimately provided Jose with a contract, in English. Jose paid
Defendant an additional $1,500 over the next couple months. Whenever they met
or spoke, Defendant promised that she was working on Jose’s case but also said
she needed more money from him. Jose had his first court date for the
immigration case in November of 2012 and Defendant did not appear on his
behalf. Jose stopped paying Defendant when she failed to appear for his court
date. Defendant retained another attorney to assist with his immigration case.
Several months later—after another attorney had already appeared in court on
Jose’s case and been forced to ask for a continuance because Defendant had not
completed any work on Jose’s behalf—Defendant contacted Jose to say she
wished to help more with his case but that she needed more money to do so.
Defendant refused to return Jose’s documents to him. Jose never received any
residency documents or a work permit based on Defendant’s representation.

Pedro Soto Soria

In August 2012, Pedro Soto Soria was arrested for DUI and subsequently
detained by immigration. In the fall of 2012, Pedro met with Defendant in her
office. Defendant agreed to handle both the immigration case and the DUI for
$3,000. Pedro paid the full amount in cash that day. Defendant told Pedro she had
no way to provide him with a contract at that time and that she would draw up a
contract and bring it to his home. Defendant never provided Pedro with a contract.
Defendant showed up for one court appearance on Pedro’s behalf and told him
that she would need an additional $1,500 to continue working on his case.
Defendant failed to show up for any of Pedro’s subsequent court dates and
stopped returning his phone calls. Pedro never received any legal services
Defendant was supposed to provide.

Aurelia Santistevan and Pedro Sanchez

Pedro Sanchez is from Mexico and came to the United States in 2002. His
fiancée, Aurelia Santistevan, was referred to Defendant in November of 2013
when Pedro was placed on an ICE hold. Defendant offered to represent Pedro for

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 $10,000 and said she would need $5,000 up front. Aurelia and Pedro paid
Defendant $2,500 the day of their initial meeting and $2,500 two days later.
Defendant did not provide them with a contract or receipts. In December of 2013,
Aurelia and Pedro paid Defendant an additional $700 which she said she needed
to file documents on Pedro’s behalf. In 2014, Pedro was charged with a DUI.
Defendant said she would represent him at his DUI hearing, but failed to show up.
In March of 2014, Aurelia and Pedro went to Defendant’s office and asked for all
of their documents back and for receipts of their payments. Defendant scheduled a
meeting for the following day in order to return their documents. Aurelia and
Pedro showed up as scheduled but Defendant was not there. Defendant called to
push back their meeting time, but never showed up. After waiting for three hours,
Aurelia and Pedro left. Defendant ultimately went to Pedro’s mother’s house to
return some of their documents but kept their original birth certificates. Aurelia
and Pedro paid Defendant more than $11,000 and never received any services or
documents.

Natasha Santisteven and Yonjer Matute

Natasha Santisteven and Yonjer Matute were engaged and met with
defendant in January of 2014 in order to get Yonjer’s residency papers. Natasha is
Aurelia Santisteven’s aunt. Natasha and Yonjer met Defendant at a Starbucks and
paid her $2,000 in cash and gave her their birth certificates. Defendant told them
she was in a rush and did not have time for them to sign a contract or any
paperwork during this meeting. Natasha and Yonjer met with Defendant in March
of 2014, but she continued to make excuses about why she did not have
paperwork or documents for them to sign. Natasha and Yonjer were also present
while Aurelia Santisteven and Pedro Sanchez waited for Defendant to return their
documents.

Jose Nogeuda

Jose Nogeuda moved to the United States from Mexico in 1990. In

October of 2013, Jose retained Defendant to represent him in a criminal case and
his immigration case. Defendant agreed to represent him in both cases, and get
him a work permit, for $4,000. Jose paid Defendant $4,000 via credit card on
October 31, 2013. A few days later, she told him she needed an extra $1,000 to
work on his cases. Jose paid this extra fee in cash. In January of 2014, he received
an invoice showing he had paid $5,000 toward his cases. In February of 2014,
Defendant contacted him and said she would need an additional $5,000 to work
on his criminal case. Jose said he was not going to give Defendant any more
money until she proved what work she had done up to that point, because he
could never get in touch with her and had no idea what she had done up until that
point. Jose ultimately sent Defendant a letter terminating her services. Defendant
then reached out to Jose and set up a meeting. At the meeting, Defendant said that
she wanted to help but needed more money. Jose refused to give Defendant
additional money. Jose tried to set up a meeting for Defendant to return the

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 money she had received but that never occurred. Jose never received any services
or paperwork related to Defendant’s representation.

Vanessa Garcia and Manuel Vazquez

Manuel Vazquez moved to the United States from Mexico around 2001. In
February of 2012 Manuel and his wife, Vanessa Garcia, met with Defendant in
hopes of applying Manuel’s residency paperwork. Defendant agreed to represent
Manuel for $5,000. Defendant had Manuel and Vanessa sign a contract and they
received a copy of it. Manuel and Vanessa paid Defendant $1,000 and then paid
Defendant $1,000 per month for the next four months. Once Defendant had
received the full $5,000 she said she would submit the paperwork. Defendant said
they should hear from immigration in roughly two weeks. After not hearing from
Defendant for several months, Manuel and Vanessa reached out. Defendant stated
she needed additional documentation in order to submit the application. They
provided the paperwork and then did not hear anything from Defendant for
several more months. When Manuel and Vanessa were finally able to get in touch
with Defendant several months later, Defendant said she would file the
paperwork. Defendant blamed Manuel and Vanessa for the delay by first saying
that it was because of Manuel’s criminal history and then by claiming that they
had not provided her everything she needed. Defendant refused to return their
money, claiming that she had worked on Manuel’s case. Manuel never received
any documentation regarding Defendant’s work, or any receipts or invoices for
work done.

Brenda Castillo

Brenda Castillo moved to the United States from Mexico around in 2009.
In October of 2013, she hired Defendant to help her obtain residency paperwork.
Defendant had Brenda sign a contract and Brenda paid her $1,500 in cash that
day. Brenda requested a copy of the contract and Defendant said she would email
it. Brenda never received a copy of the contract. Brenda tried to contact
Defendant several times by calling or going to her office, but Brenda was never
able to contact her. Brenda ultimately called to terminate Defendant’s services
and demand her money back, which Defendant refused. Part of the reason Brenda
had hired Defendant was because she had listed an endorsement from Univision
on her website. Brenda called Univision to complain after Defendant failed to
work on her case and Brenda was told they had never been affiliated with
Defendant.

Jose Sifuentes

Jose Sifuentes came to the United States from Mexico when he was seven
years old. In 2012, Jose was living in Texas when he was arrested for a DUI and
subsequently informed that he might be deported. Jose contacted Defendant who
agreed to represent him for $3,500. Jose sent Defendant a money order for $3,500

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 and she sent him a contract to sign. Jose returned the contract but never got a copy
or receipt for the money order. Defendant eventually told Jose she needed more
money to keep representing him and asked for another $1,190. Jose sent
Defendant another money order. At the time of her representation, Jose was
separated from his wife. Defendant told Jose that his wife would need to help him
with the paperwork and attend his court hearings. When Jose told Defendant that
his wife did not want to be involved, Defendant offered to handle their divorce.
Defendant told Jose she needed an additional $5,000, which he told her he did not
have. After more than a year with no contact with Defendant, Jose moved to
Colorado. After arriving in Colorado, Jose attempted to contact Defendant once a
week for five months, but she never answered his calls or returned his messages.

Jose was worried that his brothers were going to report him to immigration
authorities as a result of a family dispute and left Defendant a message saying he
was scared and begging for help. Defendant returned his phone call and said that
she wanted to help, but needed an additional $2,500. Jose told Defendant that he
did not have any money. While Jose was at work, Defendant called his fiancée
and said that Jose had provided his authorization for a credit card payment and
asked the fiancée to provide the number over the phone. Jose’s fiancée knew they
did not have money so Jose would not have made the arrangement. Defendant
then called Jose and told him that his brothers had reported him to immigration
and he was going to be deported. Defendant told him that she could stop the
deportation if he immediately provided her with $2,500. Jose made an
arrangement to borrow the money from a relative in Mexico but Defendant told
him it would take too long for the money to get to her if it had to go through Jose.
Defendant provided her banking information to Jose and instructed the relative to
wire the money directly to Defendant’s account. Jose had no further contact with
Defendant after the money was wired. Jose eventually spoke to his brothers and
they denied ever reporting him to immigration.

Sergio Delgado Hernandez and Laura Donnefield

In July of 2012, Sergio Delgado Hernandez attempted to retain Defendant

in order to get his residency paperwork. Defendant was initially very responsive
to Sergio’s emails. Sergio was supposed to meet Defendant at her office in
December of 2012. Defendant did not show up for the meeting and when Sergio
called to see where she was, Defendant instructed him to leave his payment with
the receptionist because she was unavailable. Sergio left $1,000 cash with the
receptionist. Defendant set up another meeting in January of 2013 and again
failed to appear for the meeting. Defendant again instructed Sergio to leave a
payment with the receptionist. Sergio left an additional $1,500 with the
receptionist. In February of 2013, Sergio suffered a brain aneurism and spent
several weeks in the hospital. Sergio’s cousin, Laura Donnefield, contacted
Defendant pleading for her to expedite Sergio’s application because they were not
sure he was going to survive. Defendant never responded to any of Laura’s calls,
text, or emails.

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Edgar Diaz and Amanda Diaz

Edgar Diaz moved to the United States from Mexico in 2001. In 2011,
Edgar and his wife, Amanda, hired Defendant to assist in Edgar’s residency
paperwork. Defendant agreed to represent Edgar for $10,000. Edgar and Amanda
signed a contract and gave Defendant $5,000 in cash. Amanda paid $1,000 per
month over the next several months, always dropping the money off at
Defendant’s office in Aurora. Defendant appeared for one court date in 2012 but
only asked the judge for a continuance. Defendant told Edgar to call her after
court but then never returned their calls or messages. In May of 2013, Edgar had
another court date and saw Defendant in the courthouse. Edgar and Amanda
confronted Defendant about the fact that she had never returned any of their
phone calls. Defendant said she was having phone problems. When Amanda said
that explanation did not make sense because they had left messages, Defendant
said she was not at the courthouse for their case. Edgar and Amanda ultimately
hired another attorney. They received a copy of the contract but never received
any receipts, invoices or documentation related to Defendant’s representation of
Edgar.

Nicholas Berzins

Nicholas Berzins moved to the United State from Canada. Nicholas

retained defendant in March of 2013 because he wanted to reinstate his resident
alien status. Defendant agreed to represent Nicholas for $5,000 and had him sign
a contract for her services. He paid $1,250 via check and put the rest on his credit
card. Nicholas realized he had not heard anything from Defendant in several
months and reached out to Defendant in June of 2013. He never heard anything
back or received any invoices or information regarding Defendant’s work.

Ulises Reyes

Ulises Reyes contacted Defendant in July of 2012 in order to obtain

residency paperwork. Ulises met with Defendant on July 12, 2012. Ulises paid
Defendant $1,000 and signed a contract that day. Ulises made an additional $500
payment on July 31, 2012. Ulises completed a biometrics exam and gave the
results to Defendant. Since then, he has heard nothing about his case and
Defendant has not returned his calls. Ulises has no paperwork or documentation
regarding Defendant’s representation.

Isidro Reyes and Martha Reyes de la Cruz

Isidro and Martha Reyes are Ulises’ parents. In August of 2011, Isidro and
Martha went to Defendant to renew their work permits. Defendant agreed to
represent them and had them sign a contract and handwrote a payment plan on the
document. Isidro and Martha paid $2,500 in three cash installments. Defendant

30
 subsequently learned that Isidro was a contractor and offered him a new deal in
November of 2011. If Isidro would help Defendant convert a warehouse space
into an office, she would not charge him for the remainder of the amount due
under their contract. Isidro agreed and Defendant modified the writing on the
contract to say that the contract had ended and she would complete the rest of the
work pro bono. Isidro completed the work at Defendant’s office space in Aurora
but never heard anything further from Defendant. When Isidro and Martha
referred Ulises to Defendant, they did not yet realize she had not done any work
on their case.

Pasami Malama-Rodela and Elias Rodela

Elias Rodela came to the United States from Mexico 45 years ago. In May
of 2013, ICE agents came to Elias’ home and took him into custody. Elias’
relatives had been involved in drug trafficking and his name came up as a relative.
Elias’ wife, Pasami Malama-Rodela, contacted Defendant and retained her to
represent Elias. Defendant quoted them $10,000 as a retainer fee and advised that
it would cost additional money to stop the deportation. Over the next few weeks,
Pasami made three cash payments totaling $10,000. All of the payments were
dropped off at Defendant’s office but Defendant was never there. Pasami received
a receipt from the receptionist for one of the payments. Elias signed a contract but
Defendant told her the copier was broken when he asked for a copy. Defendant
said she would mail the contract to Elias but he never received it. The last time
Pasami and Elias had contact with Defendant was in December of 2013. Pasami
sent several emails but never received a response from Defendant. Elias had a
court date in May of 2014. In preparation for the court date, Pasami went to
Defendant’s office locations and learned that Defendant’s law license had been
suspended.

ii. 404(b) Analysis

77. Almost identical stories of abuse from other victims is relevant to prove Defendant had
a common scheme or plan to defraud her clients through the same pattern of conduct.
The number of victims and clients with the same story regarding their interactions with
Defendant goes to her intent to defraud the clients and is thus relevant to the central
issue in the case. Similarly, the pattern of conduct across many victims is relevant to
prove intent. The Colorado Supreme Court has recognized that, “[a] greater number of
incidents of similar behavior is important in proving that it is directed or purposive
rather than coincidental.” Rath, 44 P.3d at 1043. Where Defendant’s claim has always
been one of mistake or ignorance, the presence of other act witnesses goes to
corroborate the interactions described by the named victims and discount any innocent
explanation. In this sense, the existence of other witnesses with the same or similar
stories makes it more likely not only that the charged conduct occurred, but also that
Defendant had the requisite mental intent.

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 78. The inclusion of other act witnesses is further necessary to rebut claims of fabrication.
During the first trial, Defendant’s counsel argued that many of the victims applied for
U-Visas or were provided new attorneys on a pro bono basis as a result of the
allegations in this case. The inference was that Defendant’s victims were “better off” as
a result of filing complaints against Defendant and, as such, had a motive to fabricate.
The number of additional witnesses who had similar experiences is directly relevant to
rebut this claim; not all of the clients applied for U-Visas, and not all of them received
any perceived benefit after reporting Defendant’s conduct. Yet, all of these individuals,
who did not all know each other, and who were in vastly different positions with regard
to their immigration cases, are supposed to have the same motive to fabricate
allegations against Defendant.

79. Moreover, the Defendant’s pattern of conduct directed at more than merely the charged
victims is relevant to rebut a claim of mistake or accident.

80. Introduction of this evidence will not be unfairly prejudicial, and the probative value of
the proffered evidence is not substantially outweighed by unfair prejudice. As the
Supreme Court articulated in People v. Snyder, the similarities between charged sexual
conduct and uncharged sexual conduct rendered the uncharged conduct less prejudicial
to a defendant; where the jury is already hearing about charged conduct of a similar
nature, the prejudicial impact is less than if the jury hears about dissimilar conduct. 874
P.2d at 1076. The same is true here. Indeed, the People do not seek to make any
propensity arguments or bring in other unrelated conduct to say that Defendant was
untruthful in other contexts or violated other ethical obligations outside of her handling
of client funds. The People merely intend to use the other act evidence involving
additional clients to show Defendant’s common scheme or plan as it relates to her
knowledge and intent. As such, the probative value of other act evidence, similar in
nature to the charged conduct, is not substantially outweighed by the risk of prejudice.

WHEREFORE, the People request that the Court take notice of the People’s intention to introduce
res gestae and evidence admissible pursuant to Rule 404(b), and request argument regarding the
same.

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Respectfully submitted,

MICHAEL T. DOUGHERTY
District Attorney

By: /s/ Anne Kelly

Anne Kelly
Deputy District Attorney
Registration No. 38885

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 CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing MOTION was served on July 6, 2020
via

Colorado Courts E-Filing

First Class U.S. Mail, postage pre-paid

Hand Delivery

Properly addressed to the following:

Jonathan Willett
255 Canyon Blvd Ste 100
Boulder, CO 80302
(303) 832-5648
(303) 832-7813
jwillett@willettlaw.net

/s/ Anne Kelly

*Original signatures on file at Boulder District Attorney’s Office.

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