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 2011-07

United States v. Ibrahima Sarr ( 2011 )


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  •                               UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4709
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
IBRAHIMA SARR,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Rebecca Beach Smith, District
Judge. (2:06-cr-00056-RBS-FBS-1)
Submitted:   March 31, 2011                 Decided:   July 28, 2011
Before KING, SHEDD, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Cullen Dennis Seltzer, SELTZER GREENE, PLC, Richmond, Virginia,
for Appellant.     Neil H. MacBride, United States Attorney,
Stephen W. Haynie, Assistant United States Attorney, Norfolk,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
After a jury trial, Ibrahima Sarr was convicted of one
count of conspiracy to commit bank fraud, in violation of
    18 U.S.C. § 1344
     (2006), one count of conspiracy to commit fraud by
the unauthorized production or use of counterfeit access devices
or possession of fifteen or more counterfeit access devices or
solicitation of a person for the purpose of selling information
regarding         access       devices,        in       violation        of
    18 U.S.C. § 1029
    (a)(6)(B) (2006), three counts of using and/or producing
counterfeit credit cards and aiding and abetting such conduct,
in violation of
    18 U.S.C. §§ 1029
    (a)(1), 2 (2006), five counts
of    identity      theft      and    using        stolen       identities      to       produce
counterfeit credit cards and aiding and abetting such conduct,
in violation of 18 U.S.C. §§ 1028A(a)(1), 2 (2006), one count of
soliciting another to sell credit card information and aiding
and    abetting         such      conduct,         in    violation        of
    18 U.S.C. § 1029
    (a)(6)(B), 2 (2006), and one count of possessing fifteen
or    more   stolen      credit      card     account         numbers,    and    aiding      and
abetting such conduct, in violation of
    18 U.S.C. §§ 1029
    (a)(3),
2.      On   appeal,       Sarr      claims    the      district     court      abused       its
discretion permitting the Government to introduce evidence under
Fed. R. Evid. 404(b), showing that subsequent to the conduct
charged      in   the    indictment,          Sarr      was    arrested       and    found    in
possession of a counterfeit debit card, that the debit card had
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a history of possible fraudulent use and that the debit card was
used within days of Sarr’s arrest.              We affirm.
Under Fed. R. Evid. 404(b), evidence of a defendant’s
bad acts, though inadmissible to prove a defendant’s character
and “action in conformity therewith,” may be admissible to prove
“motive,    opportunity,        intent,       preparation,        plan,   knowledge,
identity, or absence of mistake or accident.”                      Therefore, such
evidence is admissible “if the evidence is (1) relevant to an
issue    other   than     the    general       character     of     the   defendant;
(2) necessary to prove an element of the charged offense; and
(3) reliable.”      United States v. Hodge,
    354 F.3d 305
    , 312 (4th
Cir. 2004).      This court reviews the admission of evidence under
Rule 404(b) for abuse of discretion.
    Id.
    “Rule 404(b) is . . . an inclusive rule, admitting all
evidence of other crimes or acts except that which tends to
prove only criminal disposition.”                United States v. Young,
    248 F.3d 260
    , 271-72 (4th Cir. 2001) (internal quotation marks and
citation omitted).        “As a rule of inclusion, the rule’s list is
not exhausting.”        United States v. Queen,
    132 F.3d 991
    , 994-95
(4th Cir. 1997).        It is of no moment that the bad acts sought to
be admitted occurred subsequent to the conduct charged in the
indictment.      United States v. Mohr,
    318 F.3d 613
    , 617 (4th Cir.
2003).     “[S]ubsequent conduct may be highly probative of prior
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intent.”     United States v. Hadaway,
    681 F.2d 214
    , 217 (4th Cir.
1982).
“Evidence sought to be admitted under Rule 404(b) must
also satisfy [Fed. R. Evid.] 403 . . . ,” United States v.
Siegel,
    536 F.3d 306
    ,    319   (4th        Cir.     2008),      such   that     its
probative value is not substantially outweighed by the danger of
unfair prejudice.                Queen,
    132 F.3d at 995
    .                  Under Rule 403,
“damage    to    a    defendant’s      case       is    not    a    basis    for   excluding
probative evidence” because “[e]vidence that is highly probative
invariably       will       be    prejudicial          to     the   defense.”         United
States v. Grimmond,
    137 F.3d 823
    , 833 (4th Cir. 1998).                                 “Rule
403 requires exclusion of evidence only in those instances where
the trial judge believes that there is a genuine risk that the
emotions of the jury will be excited to irrational behavior, and
that this risk is disproportionate to the probative value of the
offered evidence.”               Mohr,
    318 F.3d at 618
     (internal quotation
marks omitted).
We conclude that the district court did not abuse its
discretion admitting the Rule 404(b) evidence.                            The evidence was
relevant, necessary and reliable and the probative value of the
evidence    was      not     substantially        outweighed         by     the    danger   of
unfair prejudice.            Accordingly, we affirm the district court’s
judgment of conviction.              We dispense with oral argument because
the facts and legal contentions are adequately presented in the
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materials   before   the   court   and   argument   would   not   aid   the
decisional process.
AFFIRMED
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