United States v. Ricardo Vigne

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 13-14252
Non-Argument Calendar
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D.C. Docket No. 1:11-cr-20108-MGC-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RICARDO VIGNE,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(July 11, 2014)
Before TJOFLAT, WILSON and JORDAN, Circuit Judges.
PER CURIAM:
Ricardo Vigne appeals his convictions for conspiracy to traffic in and use
unauthorized access devices, in violation of 18 U.S.C. § 1029(b)(2); trafficking in
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and using unauthorized access devices, in violation of 18 U.S.C. § 1029(a)(2); and
aggravated identity theft, in violation of 18 U.S.C. § 1028A(a)(1). On appeal,
Vigne first argues that the court erred by admitting evidence of his 2006
convictions for identity theft and attempted grand larceny. Specifically, he argues
the convictions are not sufficiently similar to the offenses charged in the present
indictment to outweigh concerns of undue prejudice. Second, Vigne argues that
the district court should have granted his motion for judgment of acquittal as to the
conspiracy count because there was insufficient evidence to support a conviction.
For the reasons stated below, we affirm.
I.
We review the district court’s rulings as to the admission of evidence for
abuse of discretion. United States v. Jiminez, 224 F.3d 1243, 1249 (11th Cir.
2000). Rule 404(b) of the Federal Rules of Evidence allows evidence of past
crimes to be admitted when the purpose of the evidence is to prove, among other
things, the defendant’s identity. Fed. R. Evid. 404(b). 1
In order for 404(b) evidence to be admissible, it must satisfy a three-part
test. United States v. Miller, 959 F.2d 1535, 1538 (11th Cir. 1992) (en banc).
1
Rule 404(b) provides, in pertinent part:
Evidence of a crime . . . is not admissible to prove a person’s character in order to
show that on a particular occasion the person acted in accordance with the
character. . . . This evidence may be admissible for another purpose, such as
proving motive, opportunity, intent, preparation, plan, knowledge, identity,
absence of mistake, or lack of accident.
2
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First, the evidence must be relevant to some issue besides the defendant’s
character. Id. Second, there must be sufficient proof to allow a jury to find the
defendant committed the act. Id. Third, the evidence’s probative value must not
be substantially outweighed by one of the dangers listed in Federal Rule of
Evidence 403. Id.2
However, the application of this test varies depending on the purpose for
which the evidence is offered. United States v. Phaknikone, 605 F.3d 1099, 1108
(11th Cir. 2010). When a prior act is introduced for the purpose of proving
identity, it “must satisfy a particularly stringent analysis.” Id. (internal quotation
marks omitted) When evidence of prior acts is offered to prove identity, the first
prong of the Miller test—the relevance prong—turns on the level of similarity
between the charged crime and the prior act. Miller, 959 F.2d at 1538–39. For the
prior act to be relevant, “[t]he physical similarity must be such that it marks the
offenses as the handiwork of the accused. In other words, the evidence must
demonstrate a modus operandi.” Id. at 1539 (internal quotation marks omitted).
“‘The . . . act must be a “signature” crime, and the defendant must have used a
modus operandi that is uniquely his.’” Phaknikone, 605 F.3d at 1108 (quoting
2
Only the first and third prongs of the Miller test—relevance and Rule 403 balancing,
respectively—are disputed here. However, we have held that the third prong has “no logical
application to bench trials.” See Gulf States Utils. Co. v. Ecodyne Corp., 635 F.2d 517, 519 (5th
Cir. Unit A Jan. 1981). We presume that, when making a decision, trial judges are able to
exclude from their minds the improper inferences that one might draw from a piece of evidence.
Id. Accordingly, Vigne can only prevail if the district court abused its discretion when it
determined the evidence of the prior conviction was relevant.
3
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Miller, 959 F.2d at 1540 (Kravitch, J., concurring)). This requirement “insure[s]
that the government is not relying on an inference based on mere character—that a
defendant has a propensity for criminal behavior. Evidence cannot be used to
prove identity simply because the defendant has at other times committed the same
commonplace variety of criminal act.” Id. (citation and internal quotation marks
omitted)
The district court did not abuse its discretion by admitting evidence of
Vigne’s prior conviction. In 2006, Vigne was convicted of possession of a forged
instrument after he attempted to purchase a laptop using a stolen Bank of America
debit card and a fake New York driver’s license. In the instant case, Vigne was
accused of, among other things, using a fake New York driver’s license to redeem
a U.S. Post Office money order. At the time of his arrest, Vigne was carrying a
stolen Bank of America debit card. While the two crimes were not exactly the
same, the manner in which they were carried out present the same unique
characteristics—the use of a stolen Bank of America debit card in conjunction with
a fake New York driver’s license to fraudulently obtain something of value. These
shared characteristics are sufficiently similar to be considered Vigne’s signature or
modus operandi. As such, the district court did not abuse its discretion by
admitting the evidence of Vigne’s prior conviction.
II.
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“We review de novo whether sufficient evidence supports a conviction . . . .”
United States v. Brown, 415 F.3d 1257, 1270 (11th Cir. 2005). In doing so, “we
must determine whether the evidence, construed in the light most favorable to the
government, would permit the trier of fact to find the defendant guilty beyond a
reasonable doubt.” Id. (internal quotation marks omitted). We do not make
credibility determinations or evaluate the weight of the evidence; we merely affirm
the verdict where “there is a reasonable basis in the record for it.” Id. (internal
quotation marks omitted).
“To support a conspiracy conviction, the government must prove (1) an
agreement between the defendant and one or more persons, (2) the object of which
is to do either an unlawful act or a lawful act by unlawful means.” United States v.
Garcia, 405 F.3d 1260, 1269 (11th Cir. 2005) (per curiam) (internal quotation
marks omitted). To prove the defendant participated in the conspiracy, “the
government must have proven beyond a reasonable doubt, even if only by
circumstantial evidence, that a conspiracy existed and that the defendant
knowingly and voluntarily joined the conspiracy.” Id.
While mere presence at a scene is insufficient alone to establish a
conspiracy, “presence is a material and probative factor” that may be considered.
United States v. Iglesias, 915 F.2d 1524, 1527 (11th Cir. 1990). Moreover, “a
defendant may be convicted of conspiring with persons unknown if sufficient
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evidence supports the existence and involvement of such unknown persons.”
United States v. Martinez, 96 F.3d 473, 477 (11th Cir. 1996) (per curiam) (internal
quotation marks omitted).
Construed in the light most favorable to the government, the evidence here
permitted the court to find Vigne guilty of the conspiracy charge beyond a
reasonable doubt. See Brown, 415 F.3d at 1270. The record indicates that Vigne
and an unidentified man made withdrawals on the Yaeger Foundation’s bank
account from the same ATM, with the same PIN, within thirty minutes of each
other. From this, the court could infer that the men knowingly and willfully agreed
to accomplish an unlawful act. Accordingly, the district court’s decision is
affirmed.
AFFIRMED.
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