                                                         [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________                  FILED
                                                       U.S. COURT OF APPEALS
                            No. 08-11734                 ELEVENTH CIRCUIT
                                                           JANUARY 9, 2009
                        Non-Argument Calendar
                                                          THOMAS K. KAHN
                      ________________________
                                                               CLERK

                   D. C. Docket No. 07-60206-CR-JIC

UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

                                  versus

DARREL PENDERGRASS,
AUDRA MCLEAN,


                                                       Defendants-Appellants.


                      ________________________

               Appeals from the United States District Court
                   for the Southern District of Florida
                     _________________________

                           (January 9, 2009)

Before ANDERSON, CARNES, and MARCUS, Circuit Judges.

PER CURIAM:
      Darrel Pendergrass and Audra McLean appeal their convictions for

conspiracy to commit access device fraud, in violation of 18 U.S.C. § 371, and

access device fraud, in violation of 18 U.S.C. § 1029(a)(2). Both defendants

contend that there was insufficient evidence to support their convictions.

Pendergrass makes two additional arguments. The first one is that the district court

violated Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712 (1986), by not

considering whether the prosecution had a race-neutral justification for its

peremptory challenges to two black potential jurors. The second one is that the

district court erred by admitting irrelevant evidence. We affirm the convictions.

                                          I.

      This is a credit card fraud case. The fraud began with Alrick Rickards, who

stole credit card information and then fraudulently encoded that information onto

the magnetic strips of other credit cards. He gave those credit cards to Kerrick

Young and Courtney Singh and paid them to use the cards to buy electronics.

      McLean and Pendergrass worked as cashiers in the electronics department at

Wal-Mart. Young and Singh shopped at that Wal-Mart. A lot. In fact, they made

at least 151 purchases from the electronics department over the course of

approximately two and half months. Those purchases totaled more than $70,000.

Young and Singh brought several credit cards with them and always checked out



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with either McLean or Pendergrass. The credit cards were declined frequently.

When a card was declined McLean or Pendergrass would sometimes attempt to run

the card through another card reader. If that did not work, they would simply

accept another card from Young or Singh. Sometimes nine cards would be swiped

before the transaction was finally approved. At some point, Pendergrass and

McLean asked Young and Singh to purchase electronics for them. In a “hushed

tone,” Pendergrass asked for a video game console; McLean wanted a television.

Young and Singh complied so that Pendergrass and McLean would continue to go

along with the scheme.

      The high rate of declined credit cards eventually raised suspicion. An

investigation uncovered the scheme, and Rickards, Young, Singh, McLean, and

Pendergrass were indicted for access device fraud and conspiracy to commit access

device fraud.

                                         II.

      We begin with the issue of the sufficiency of the evidence, which both

McLean and Pendergrass raise. We review de novo the sufficiency of the evidence

to support a conviction, but “view[] the evidence in the light most favorable to the

government and draw[] all reasonable inferences and credibility choices in favor of

the jury’s verdict.” United States v. Rodriguez, 218 F.3d 1243, 1244 (11th Cir.



                                          3
2000) (citation omitted).

       For a defendant to be convicted of conspiracy to commit access device1

fraud under 18 U.S.C. § 371, the government must prove (1) an agreement among

two or more persons to achieve an unlawful objective; (2) knowing and voluntary

participation in the agreement; and (3) an overt act by a conspirator in furtherance

of the agreement. See United States v. Ellington, 348 F.3d 984, 989–90 (11th Cir.

2003). To establish for access device fraud, the government must prove that the

defendant (1) knowingly, with the intent to defraud; (2) used one or more

unauthorized access devices during any one-year period; (3) to obtain anything of

value aggregating $1000 or more in that period. See 18 U.S.C. § 1029(a)(2).

       Pendergrass and McLean contend that there is insufficient evidence to

establish that they knowingly and voluntarily participated in the conspiracy

because they were never told that the purchases were fraudulent. That argument

fails because participation in a conspiracy may be established by circumstantial

evidence and “a common scheme or plan may be inferred from the conduct of the

participants or from other circumstances.” United States v. Diaz, 190 F.3d 1247,


       1
         An access device is “any card, plate, code, account number, electronic serial number,
mobile identification number, personal identification number, or other telecommunications
service, equipment, or instrument identifier, or other means of account access that can be used,
alone or in conjunction with another access device, to obtain money, goods, services, or any
other thing of value, or that can be used to initiate a transfer of funds (other than a transfer
originated solely by paper instrument).” 18 U.S.C. § 1029(e)(1).

                                                4
1254 (11th Cir. 1999). The government need only prove that the defendant knew

the general nature and scope of the conspiracy. United States v. Anderson, 326

F.3d 1319, 1329 (11th Cir. 2003).

      Here, Singh testified for the government that Pendergrass and McLean

allowed he and Young to purchase through their check out lines more than $70,000

worth of electronics in 151 separate transactions and that many of those purchases

were of the same high-ticket video game consoles and computers. Singh also

recounted how Pendergrass and McLean allowed he and Young to use multiple

credit cards, and when some of the credit cards were declined (as they frequently

were), they would simply accept a different card. Singh told how both Pendergrass

and McLean had asked he and Young to buy them things in return for their

continued cooperation— McLean got a television; Pendergrass got a video game

console. Viewed in a light most favorable to the government, Singh’s testimony

would allow a reasonable factfinder to conclude that Pendergrass and McLean

knowingly and voluntarily participated in the conspiracy.

      Pendergrass’s contention that the evidence is insufficient to sustain his

conviction for access device fraud also fails. He argues that the government did

not present any evidence of stolen property connected to Singh or Young, much

less to him. Singh’s testimony that he had purchased thousands of dollars worth of



                                          5
electronics from Wal-Mart using fraudulent credit cards knocks out that argument.

We therefore conclude that there was sufficient evidence to support the

convictions.

                                          III.

      Pendergrass also contends that the district court violated Batson v. Kentucky

by determining whether the prosecution had a race-neutral reason for its

peremptory challenges of two black potential jurors. See Batson, 476 U.S. at 86,

106 S. Ct. at 1717. In Batson the Supreme Court held that “[p]urposeful racial

discrimination in selection of the venire violates a defendant’s right to equal

protection . . . .” Id. We give deference “to a district court’s finding as to the

existence of a prima facie case.” United States v. Allen-Brown, 243 F.3d 1293,

1296–97 (11th Cir. 2001) (internal quotation marks and citations omitted).

      To prevail on a claim of race discrimination, the defendant first must make a

prima facie showing that the government has stricken potential jurors based on

their race. See Batson, 476 U.S. at 96, 106 S. Ct. at 1723. To establish a prima

facie case, the defendant must show facts and other relevant circumstances

sufficient to “raise an inference” that the prosecutor exercised its peremptory

challenges to exclude prospective jurors based on their race. Id. at 96, 106 S. Ct. at

1723. “In deciding whether the defendant has made the requisite showing, the trial



                                            6
court should consider all relevant circumstances.” Id. at 96–97, 106 S. Ct. at 1723.

      Here, the district court did not err in concluding that Pendergrass had failed

to demonstrate a prima facie case of racial discrimination. The government used

four peremptory challenges, two against black venire members and two against

non-black ones. Two black venire members were put on the jury, and the

government had one or more unused strikes left. Those circumstances do not

indicate a pattern of race discrimination nor do they give rise to an inference of

racial discrimination. See id. Pendergrass offers no additional support for his

contention that the government exercised its peremptory challenges based on race.

                                          IV.

      Finally, Pendergrass contends that the district court abused its discretion by

admitting 151 cash-register receipts from Wal-Mart’s electronics department as

evidence that fraudulent transactions occurred. The admissibility of evidence is

reviewed only for abuse of discretion. See United States v. Desero, 518 F.3d 1250,

1254 (11th Cir. 2008).

      Pendergrass contends that the receipts were irrelevant because the

government failed to connect those receipts to the conduct alleged in the

indictment. Further, he contends that admitting the receipts was highly prejudicial

because they showed a high frequency of declined cards. The cash-register



                                           7
receipts were relevant because they did connect Pendergrass to the fraudulent

purchases made by Singh and Young; they showed that those purchases were made

through the register he was operating. They corroborated Singh’s testimony. The

district court has broad discretion to decide evidentiary issues, see United States v.

Anderson, 872 F.2d 1508, 1515 (11th Cir. 1989), and that discretion was not

abused here. Accordingly, Pendergrass’ contentions under Federal Rules of

Evidence 401, 402, and 403 fail.

      AFFIRMED.




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