11-1986-cr
United States v. Camara

                              UNITED STATES COURT OF APPEALS
                                  FOR THE SECOND CIRCUIT


                                      SUMMARY ORDER


RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT.
CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS
PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE
32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE
FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
“SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A
COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.


       At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan Courthouse, 500 Pearl Street, in the City of New York, on the 12th day
of June, two thousand twelve.

Present:
            PETER W. HALL,
            SUSAN L. CARNEY,
                        Circuit Judges,
            SHIRA A. SCHEINDLIN,*
                        District Judge.
____________________________________________________

United States of America,

                          Appellee,

                 v.                                                No.     11-1986-cr

Moussa Camara,

                  Defendant - Appellant.
____________________________________________________


        *
       Judge Shira A. Scheindlin, of the United States District Court for the Southern District
of New York, sitting by designation.
FOR APPELLANT:                Toni Messina, New York, N.Y.

FOR APPELLEE:           Shane T. Stansbury, Katherine Polk Failla, Assistant United States
                        Attorneys, of counsel, for Preet Bharara, United States Attorney
                        for the Southern District of New York, New York, N.Y.
_____________________________


       Appeal from a judgment of the United States District Court for the Southern District of

New York (Castel, J.).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

       Defendant Moussa Camara appeals from the district court’s judgment, upon a guilty

verdict, convicting Camara of conspiracy to commit access device fraud and aggravated identity

theft in violation of 18 U.S.C. § 371, access device fraud in violation of 18 U.S.C. § 1029, and

aggravated identity theft in violation of 18 U.S.C. § 1028A, and imposing a sentence amounting

to 41 months’ imprisonment, two years’ supervised release, and restitution and forfeiture of

$29,924.76. On appeal, Camara argues the district court abused its discretion in ruling that

certain evidence was admissible pursuant to Rule 404(b), including (1) evidence of Camara’s use

of his taxi cab on February 15, 2009, (2) evidence of fraudulent credit card transactions

stemming from unauthorized charges in his taxi cab and at a jewelry store on the same day, (3)

evidence of a photocopy of a driver’s license with Camara’s photograph but a different name,

and (4) evidence of a Western Union exchange of $600 between Camara and Abdou Kane,

another co-conspirator arrested the same day as Camara.1 We assume the parties’ familiarity


       1
          With regard to the photocopied driver’s license and the Western Union exchange, the
district court ruled that both were direct evidence of the crimes charged as both were connected
to events that occurred during the relevant time charged in the indictment, April to June 2009.

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with the underlying facts, the procedural history of the case, and the issues on appeal, and we

discuss these only where necessary to explain our decision.

       We review the district court’s ruling on the admissibility of evidence under Rule 404(b)

for abuse of discretion. United States v. Scott, 677 F.3d 72, __ , 2012 WL 1143579, at *5 (2d

Cir. 2012) (citing United States v. Brand, 467 F.3d 179, 196 (2d Cir. 2006)). Our review follows

the factors laid out by the Supreme Court in Huddleston v. United States, 485 U.S. 681, 691-92

(1988): “[t]o determine whether a district court properly admitted other act evidence, the

reviewing court considers whether (1) it was offered for a proper purpose; (2) it was relevant to a

material issue in dispute; (3) its probative value is substantially outweighed by its prejudicial

effect; and (4) the trial court gave an appropriate limiting instruction to the jury if so requested

by the defendant.” Scott, 2012 WL 1143579, at *6 (citing United States v. LaFlam, 369 F.3d

153, 156 (2d Cir. 2004) (per curiam)). Upon review of these factors, we conclude the district

court did not abuse its discretion in ruling that evidence of the February 15 events and

transactions was admissible under Rule 404(b).

       First, the extent to which the parties dispute whether Camara conceded mental state and

intent is irrelevant, as the evidence was properly admitted for the purpose of proving knowledge.

Fed. R. Evid. 404(b)(2). Knowledge became an issue when Camara argued that he did not know

the credit cards belonged to real people—an element required to be proven for aggravated

identity theft under 18 U.S.C. § 1028A and Flores-Figueroa v. United States 556 U.S. 646, 657




Further, the Western Union exchange between Camara and Kane was likewise admitted as direct
evidence of the connection between the two. These two items of evidence were properly
admitted as direct evidence of the three crimes charged. We see no reason, therefore, to address
their admissibility under Rule 404(b).

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(2009) (holding that the crime of aggravated identity theft “requires the Government to show that

the defendant knew that the means of identification at issue belonged to another person”). When

Camara “disavow[ed] awareness that a crime was being perpetrated” and “the government bears

the burden of proving [Camara’s knowledge],” then evidence of prior similar acts “may be

admitted for the purpose of proving knowledge.” United States v. Ramirez, 894 F.2d 565, 568

(2d Cir. 1990); see also United States v. Aminy, 15 F.3d 258, 260 (2d Cir. 1994) (“Where . . .

defendant does not deny that he was present during a narcotics transaction but simply denies

wrongdoing, evidence of other arguably similar narcotics involvement may . . . be admitted to

show knowledge.”). Evidence that Camara was driving his taxi cab when fraudulent charges

were made on a certain credit card and evidence that the same credit card was also used

fraudulently on the same day at a particular jewelry store—the same store where later fraudulent

transactions covered in the indictment occurred—speaks volumes to Camara’s knowledge of

how the credit card scheme covered in the indictment operated to charge credit cards of actual

persons for unauthorized purchases and then pocket the cash.

       Further, when a defendant claims he is but a mere participant less culpable than the other

participants, as Camara asserted, evidence of prior similar bad acts is relevant and probative. See

United States v. Arango-Correa, 851 F.2d 54, 59-60 (2d Cir. 1988). This case is no different

from Arango-Correa, where we concluded the district court did not abuse its discretion in

admitting evidence of narcotics records detailing drug transactions for the three years previous to

the transactions charged because the government was entitled to offer evidence of similar acts in

order to counter the defendant’s defense that he was merely on hand to assist and had no

knowledge of the true nature of the shipment. Id. at 60; see also United States v. Martino, 759


                                                4
F.2d 998, 1005 (2d Cir. 1985) (“Since a showing of knowledge and intent were essential in order

for the government to meet its burden of proof in this case, and since the prior conviction of

federal narcotics offenses was evidence which could be interpreted by the fact-finders as

shedding light on these key issues, the evidence was both relevant and probative and the trial

judge did not abuse his discretion by his ruling, despite the vintage of the conviction.”); but see

United States v. Garcia, 291 F.3d 127, 137-39 (2d Cir. 2002) (holding the government did not

demonstrate “a similarity or some connection between the prior and currents acts” because the

“only similarity” was both involved cocaine but otherwise the two acts were twelve years apart

and involved different quantities of cocaine). In this case, the February 15 transactions, to which

the contested evidence related, and the crimes on which Camara was indicted were “sufficiently

similar . . . to permit the jury reasonably to draw from that act the knowledge . . . inference

advocated by” the government, and thus met the “substantial relevancy” requirement for prior

similar bad acts. Aminy, 15 F.3d at 260 (explaining that sufficient similarity, not “synonymity,”

is required to establish the relevance of prior similar bad acts).

       Lastly, the probative value of this evidence was not substantially outweighed by any

prejudicial effect. Probative value is not outweighed by prejudicial effect when the prior similar

bad acts do not “involve conduct more inflammatory than the charged crime,” United States v.

Paulino, 445 F.3d 211, 223 (2d Cir. 2006) (quoting United States v. Livoti, 196 F.3d 322, 326

(2d Cir. 1999)), or “involve conduct any more sensational or disturbing than the crimes”

charged, United States v. Pitre, 960 F.2d 1112, 1120 (2d Cir. 1992) (quoting United States v.

Roldan-Zapata, 916 F.2d 795, 804 (2d Cir. 1990)). In this case, evidence of the unauthorized

credit card transactions from the taxi cab and jewelry store was clearly of the same ilk as the


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charged conduct and even involved one of the same merchants. Evidence of the other fraudulent

taxi cab charges from that day were likewise no more inflammatory, sensational, or disturbing

than the crimes charged. Further, when a district court gives a careful limiting instruction, as did

the court in this case, any prejudicial effect is limited by the careful parameters set by the district

court on the jury’s consideration of that evidence. See LaFlam, 369 F.3d at 157 (“The District

Court also gave a limiting instruction to the jury that reduced any potential prejudice that

introduction of the uncharged other act evidence might have caused.”); Arango-Correa, 851 F.2d

at 60; Ramirez, 894 F.2d at 570.

       “Since a district court is in the best position to evaluate the evidence and its effect on the

jury,” Pitre, 960 F.2d at 1119, and since this “Circuit evaluates Rule 404(b) evidence under an

‘inclusionary approach’ and allows evidence ‘for any purpose other than to show a defendant’s

criminal propensity,’” we cannot conclude that the district court abused its discretion in ruling

that the evidence related to the events on February 15 was admissible under Rule 404(b), Garcia,

291 F.3d at 136.

       We have considered the remainder of Camara’s arguments and find them to be without

merit. The decision of the district court is AFFIRMED.

                                                       FOR THE COURT:
                                                       Catherine O’Hagan Wolfe, Clerk




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