                              UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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

                                               2
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



                                          3
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

                                              4
materials   before   the   court   and   argument   would   not   aid   the

decisional process.



                                                                  AFFIRMED




                                    5
