                Case: 13-10926      Date Filed: 06/16/2014      Page: 1 of 5


                                                                     [DO NOT PUBLISH]

                 IN THE UNITED STATES COURT OF APPEALS

                           FOR THE ELEVENTH CIRCUIT
                           ____________________________

                                    No. 13-10926
                            ___________________________

                     D.C. Docket No. 2:12-cr-00199-VEH-RRA-1


UNITED STATES OF AMERICA,

                                                                        Plaintiff-Appellee,

                                           versus

BADRA KABA,

                                                                     Defendant-Appellant.

                            __________________________

                     Appeal from the United States District Court
                        for the Northern District of Alabama
                          __________________________
                                  (June 16, 2014)

Before JORDAN, Circuit Judge, and RYSKAMP * and BERMAN, ** District
Judges.

PER CURIAM:

*
  Honorable Kenneth L. Ryskamp, United States District Judge for the Southern District of
Florida, sitting by designation.
**
 Honorable Richard M. Berman, United States District Judge for the Southern District of New
York, sitting by designation.
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       Badra Kaba appeals his convictions for violating 18 U.S.C. §§ 1029(a)(3),

1029(a)(4), and 1028A, as well as the sentences imposed by the district court.

Following oral argument and a review of the record, we affirm, and address only

those arguments that merit discussion.1


       First, considered as a whole, the district court’s jury instruction for the

aggravated identity theft charge under § 1028A adequately conveyed the

government’s burden of proof, and did not constitute error, plain or otherwise. The

district court instructed the jury that Mr. Kaba could be found guilty of violating §

1028A “only if all of the following facts are proven beyond a reasonable doubt,”

and then told the jury that, among other things, “the government must also prove

that the defendant knew that the means of identification . . . belonged to a real

person and not a fictitious person.” Even under de novo review, see United States

v. Prather, 205 F.3d 1265, 1270 (11th Cir. 2000), we conclude that this instruction

would have been understood by a reasonable jury to mean that the government had

to prove beyond a reasonable doubt that Mr. Kaba knew that the means of




       1
         At oral argument, Mr. Kaba suggested that he had challenged, as impermissible double-
counting, the sentencing enhancement for his possession of the encoder. See U.S.S.G. §
2B1.1(b)(11)(A)(i). Our review of his brief, however, indicates that no double-counting
argument was asserted, and his counsel have confirmed that in a post-argument letter brief. The
only argument Mr. Kaba raised as to this enhancement was that it could not be applied because
there was insufficient evidence that the encoder was functional. See Appellant’s Br. at 41. We
therefore do not address the double-counting issue.
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identification belonged to a real person, as required by Flores-Figueroa v. United

States, 556 U.S. 646 (2009).


      Second, exercising plenary review, see United States v. Feliciano, 747 F.3d

1284, 1288 (11th Cir. 2014), we conclude that the evidence was sufficient for the

jury to find Mr. Kaba guilty of violating §§ 1029(a)(3).


      Starting with the conviction under § 1029(a)(3), Mr. Kaba argues that the

government did not prove that 15 or more access devices were functional. The

record, however, shows otherwise. Mr. Kaba possessed several dozen credit, debit,

or gift cards issued by various credit card companies. All of these cards had

account numbers encoded on their magnetic strips—strips which could be re-

encoded—and those numbers did not match the account numbers embossed on the

cards. These cards were “access devices” because they could be used, “alone or in

conjunction with another access device, to obtain money, goods, services, or any

other thing of value[.]” § 1029(e)(1). See United States v. Sepulveda, 115 F.3d

882, 887 (11th Cir. 1997). They were also “counterfeit access devices” (i.e.,

access devices that are “counterfeit, fictitious, altered, or forged, or an identifiable

component of an access device,” § 1029(e)(2)) and/or “unauthorized access

devices” (i.e., access devices which are “lost, stolen, expired, revoked, canceled, or

obtained with intent to defraud,” § 1029(e)(3)).


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       The possession of these cards—together with, among other things, the

possession of a credit-card encoder, the possession of blank credit cards, the

possession of computer files containing additional credit card numbers, and the use

of B.R.’s card number—also sufficed to permit the jury to find that Mr. Kaba acted

with intent to defraud. Contrary to Mr. Kaba’s suggestion, the government did not

have to prove with direct evidence that the access devices were capable of

immediate use to obtain something of value. 2


       Turning to the conviction under § 1029(a)(4), we reject Mr. Kaba’s

argument that the government had to prove that the credit-card encoder found in

his apartment actually worked. For starters, such a requirement is not found in the

statutory language. To the extent that Mr. Kaba contends that intent to defraud

cannot be inferred “from the mere possession of a non-functional piece of device-

making equipment,” Appellant’s Br. at 36, he ignores the fact that software for the

encoder was installed on two computers in his apartment.                  The encoder was

“device-making equipment” under § 1029(e)(6) because it was “designed or

primarily used for making an access device or a counterfeit access device.” The




       2
          Mr. Kaba’s challenge to the district court’s loss calculation is dependent on the
contention that the district court erred in finding that there were 49 access devices. See
Appellant’s Br. at 40-41; Appellant’s Reply Br. at 10 n.2. Because we have rejected Mr. Kaba’s
contention with respect to what constitutes an access device, the sentencing challenge based on
that contention fails.
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jury had ample evidence, including the evidence described above in the discussion

relating to § 1029(a)(3), to find that Mr. Kaba had the requisite mens rea.


      AFFIRMED.




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