United States v. Moses A. Damiani ( 2015 )

Case: 14-10770 Date Filed: 01/07/2015 Page: 1 of 3
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 14-10770
Non-Argument Calendar
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D.C. Docket No. 1:10-cr-00519-AT-AJB-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MOSES A. DAMIANI,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Georgia
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(January 7, 2015)
Before HULL, ROSENBAUM, and ANDERSON, Circuit Judges.
PER CURIAM:
Moses Damiani appeals his convictions for conspiracy to commit bank fraud
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and bank fraud, in violation of 18 U.S.C. §§ 1349, 1344, respectively. On appeal,
Damiani argues that the district court abused its discretion by admitting extrinsic
evidence under Federal Rule of Evidence 404(b) regarding a New York real estate
transaction in which he participated. Damiani contends that, although not entirely
lacking in probative value, the evidence was highly prejudicial because he could
have explained the differences between the New York transaction and the instant
transaction only by waiving his right not to testify.
We review a district court’s admission of other bad acts under Rule 404(b)
for an abuse of discretion. United States v. Ellisor, 522 F.3d 1255, 1267 (11th Cir.
2008). Federal Rule of Evidence 404(b) prohibits the admission of evidence of
other bad acts to prove a defendant’s character, but permits the admission of such
evidence for other purposes such as showing intent. Fed.R.Evid. 404(b). We
apply a three-part test to determine the admissibility of 404(b) evidence: (1) the
evidence must be relevant to an issue other than the defendant’s character;
(2) sufficient evidence must be presented for a jury to find that the defendant
committed the extrinsic act; and (3) the probative value of the evidence must not
be substantially outweighed by its undue prejudice, and the evidence must satisfy
Federal Rule of Evidence 403. United States v. Edouard, 485 F.3d 1324, 1344
(11th Cir. 2007). In reviewing issues under Rule 403, we view the evidence in the
light most favorable to its admission, maximizing its probative value and
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minimizing its prejudicial impact. United States v. Jernigan, 341 F.3d 1273, 1284
(11th Cir. 2003). Additionally, any unfair prejudice caused by the admission of
404(b) evidence can be diminished by appropriate limiting instructions. United
States v. Brown, 665 F.3d 1239, 1247-48 (11th Cir. 2011).
Upon review of the record and consideration of the parties’ briefs, we
affirm. The district court did not abuse its discretion in admitting the 404(b)
evidence regarding the New York transaction. The New York transaction evidence
was highly probative of Damiani’s intent, which was a contested issue at trial.
Furthermore, the district court diminished the potential prejudicial impact of the
New York transaction evidence by providing multiple limiting instructions to the
jury. Accordingly, we affirm.
AFFIRMED.
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