   Case: 09-50132       Document: 00511034917          Page: 1    Date Filed: 02/24/2010




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                          February 24, 2010
                                       No. 09-50132
                                                                       Charles R. Fulbruge III
                                                                               Clerk



UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee,
versus

BRANDON RAY CHANDLER,

                                                   Defendant-Appellant.




                   Appeal from the United States District Court
                        for the Western District of Texas
                              No. 7:08-CR-126-ALL




Before JONES, Chief Judge, SMITH and ELROD, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*


       Brandon Chandler (“Chandler”) appeals his convictions of making a false
statement to a bank, bank fraud, and aggravated identity theft. He challenges
the sufficiency of the evidence for the identity theft counts, arguing that the gov-

       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
   Case: 09-50132   Document: 00511034917     Page: 2   Date Filed: 02/24/2010

                                 No. 09-50132

ernment failed to prove he knew the means of identification he used belonged to
another person. He also argues that the district court erred in admitting extrin-
sic evidence of his 1989 conviction of credit card abuse. We affirm.


                                       I.
      Chandler was charged with making a false statement to a bank in viola-
tion of 18 U.S.C. § 1014, bank fraud in violation of 18 U.S.C. § 1344, and three
counts of aggravated identity theft in violation of 18 U.S.C. § 1028A(a)(1). The
government gave notice that it intended to introduce extrinsic evidence of
Chandler’s 1989 conviction of credit card abuse. The government attempted to
prove that Chandler knowingly used someone else’s name and social security
number to open an account at Bank of America and then knowingly used the
same name to expend funds from that account.
      Among its witnesses, the government offered the testimony of Brandy
Chandler (“Brandy”), the woman whose identity was stolen, and Roland Ray, a
fraud investigator for Bank of America. Brandy testified that she never opened
the account and, in fact, never had any kind of account with Bank of America.
She stated that she only found out about the account when she applied for a loan
with another bank and was denied.
      Ray then testified, with the aid of various bank records introduced as gov-
ernment exhibits, regarding activity on the account, which was opened using the
name “Brandy Chandler.” The account showed Brandy’s social security number
but Chandler’s address and date of birth. The records also showed that Chand-
ler made several calls trying to access the account with his own social security
number, beginning eight days after it was opened, but he was denied. He then
attempted to gain access to the account in person but was again denied.
      The government also introduced copies of two “convenience checks” sent
by Bank of America to Chandler. A convenience check allows a customer to ex-

                                       2
   Case: 09-50132    Document: 00511034917      Page: 3    Date Filed: 02/24/2010

                                    No. 09-50132

pend funds even if there is no money in the account. Check 3117 was made out
to “Brandon R. Chandler” and signed “Brandy R. Chandler”; check 5094 was
made out to “Brandon Ray Chandler” and signed “Brandy Chandler.” Chandler
later stipulated that he wrote those checks out to himself; he never attempted
to pay the balance on the account.
      Pursuant to Federal Rule of Evidence 404(b), the district court admitted
the government’s evidence of Chandler’s 1989 credit-card-abuse conviction. The
court gave a limiting instruction to the jury to consider the conviction only to
prove intent, knowledge, or absence of mistake.
      At the close of the government’s case, Chandler made an unsuccessful
Federal Rule of Criminal Procedure 29 motion for judgment of acquittal. He
then put his father on the stand, who testified that his son has used the name
“Brandy” as a nickname all his life. At the close of all the evidence, the court de-
nied Chandler’s renewed motion for judgment of acquittal and delivered another
rule 404(b) limiting instruction.
      The jury found Chandler guilty on all five counts. He appeals the suffi-
ciency of the evidence regarding the knowledge element of his identity theft
convictions and the admission of extrinsic evidence of the prior conviction.


                                        II.
      We review the denial of a properly preserved motion for judgment of ac-
quittal de novo. United States v. Mitchell, 484 F.3d 762, 768 (5th Cir. 2007) (ci-
tations omitted). Review of the sufficiency of the evidence following a criminal
conviction, however, is “highly deferential to the verdict.” United States v. Redd,
355 F.3d 866, 872 (5th Cir. 2003). This court will affirm if a reasonable trier of
fact could conclude that the “elements of the offense were established beyond a
reasonable doubt, viewing the evidence in the light most favorable to the verdict
and drawing all reasonable inferences from the evidence to support the verdict.”

                                         3
   Case: 09-50132    Document: 00511034917      Page: 4    Date Filed: 02/24/2010

                                   No. 09-50132

United States v. Myers, 104 F.3d 76, 78 (5th Cir. 1997). Proof may be direct or
circumstantial, and the jury is [ordinarily] free to choose among reasonable con-
structions of the evidence. Mitchell, 484 F.3d at 768 (quoting United States v.
Anderson, 174 F.3d 515, 522 (5th Cir. 1999)). We review the admission of rule
404(b) evidence for abuse of discretion, though that review is “necessarily height-
ened” in criminal cases. United States v. Gonzalez, 76 F.3d 1339, 1347 (5th Cir.
1996).


                                        III.
                                         A.
      Chandler challenges the sufficiency of the evidence only for his aggravated
identity theft convictions under § 1028A(a)(1). A conviction of aggravated iden-
tity theft requires proof that the defendant (1) knowingly used (2) the means of
identification of another person (3) without lawful authority (4) during and in
relation to certain violations, including bank fraud and making false statements
to a bank. See United States v. Stephens, 571 F.3d 401, 404-05 (5th Cir. 2009)
(internal quotation marks and citations omitted). Section 1028A(a)(1) requires
the government to prove “that the defendant knew that the means of identifi-
cation he or she unlawfully transferred, possessed, or used, in fact, belonged to
another person.” Flores-Figueroa v. United States, 129 S. Ct. 1886, 1888 (2009).”
(internal quotation marks omitted). “Means of identification” includes “any
name or number that may be used, alone or in conjunction with any other in-
formation, to identify a specific individual, including any . . . name, social se-
curity number, [or] date of birth . . . . ” 18 U.S.C. § 1028(d)(7).
      More specifically, Chandler challenges the sufficiency of the evidence only
with respect to the knowledge element of § 1028A(a)(1)SSwhether he knew that
the means of identification he used belonged to another real person. He claims
that he only tweaked his own social security number and had no way of knowing

                                         4
   Case: 09-50132   Document: 00511034917     Page: 5    Date Filed: 02/24/2010

                                 No. 09-50132

that the resulting number would belong to someone else. The prosecution, how-
ever, produced evidence that undermines Chandler’s contention and supports a
finding of guilt beyond a reasonable doubt.
      First, the government offered evidence that Chandler opened the Bank of
America account using the name “Brandy Chandler” and Brandy’s social security
number, but his own address and date of birth. That evidence reasonably could
support an inference that Chandler targeted Brandy because of her similar name
and knew that the social security number he used belonged to her. Chandler
suggests that, at most, the evidence shows only that he tweaked two digits of his
own social security number and that there was no way for him to know the new
number would belong to another person.
      That argument is implausible. Though the last four digits of his number
and her number share two digits, Chandler opened the account under Brady’s
full social security number, which bears little resemblance to his own. Use of
her entire number in conjunction with her similar name supports an inference
that Chandler knew the number belonged to someone else. Chandler’s sugges-
tion that a random alteration of his own number resulted in his use of Brandy’s
is vapid.
      The government also reproduced two convenience checks for $400 and
$600. Chandler made out the first check to “Brandon R. Chandler” and signed
it using the name “Brandy R. Chandler.” He made out the second to “Brandon
Ray Chandler” and signed it using the name “Brandy Chandler.” Both times,
Chandler was careful to make checks out to his formal name while signing them
with the name “Brandy.” Moreover, he used those different names to write
checks after he was repeatedly warned that the social security number on the ac-
count did not match his own. Chandler’s endorsement of the checks as “Brandy”
while knowing his number was not on the account provides considerable support
for the inference that he knew he was accessing funds using Brandy’s identity.

                                       5
   Case: 09-50132      Document: 00511034917      Page: 6    Date Filed: 02/24/2010

                                    No. 09-50132

        From Chandler’s application information and subsequent conduct, a rea-
sonable juror could have concluded beyond a reasonable doubt that he knew the
number he provided belonged to another person. The government, therefore,
produced sufficient evidence to support the conviction.


                                          B.
        Chandler argues that the district court abused its discretion in admitting
evidence of his 1989 conviction of credit card abuse. He contends that the convic-
tion was not sufficiently similar to the charged offense to be relevant and was too
remote to retain significant probative value.
        Rule 404(b) governs the admissibility of evidence of prior crimes or bad
acts:
            Evidence of other crimes, wrongs, or acts is not admissible to
        prove the character of a person in order to show action in conformity
        therewith. It may, however, be admissible for other purposes, such
        as proof of motive, opportunity, intent, preparation, plan, knowl-
        edge, identity, or absence of mistake or accident, provided that upon
        request by the accused, the prosecution in a criminal case shall pro-
        vide reasonable notice in advance of trial, or during trial if the court
        excuses pretrial notice on good cause shown, of the general nature
        of any such evidence it intends to introduce at trial.


F ED. R. E VID. 404(b). In United States v. Beechum, 582 F.2d 898, 911 (5th Cir.
1978) (en banc), this court laid out the two-step test for admission of extrinsic
evidence of prior offenses or other misconduct under rule 404(b). “First, it must
be determined that the extrinsic offense evidence is relevant to an issue other
than the defendant’s character. Second, the evidence must possess probative
value that is not substantially outweighed by its undue prejudice and must meet
the other requirements of rule 403.” Id.
        At step one, evidence is relevant where it has “any tendency to make the
existence of any fact that is of consequence to the determination of the action

                                           6
   Case: 09-50132    Document: 00511034917      Page: 7    Date Filed: 02/24/2010

                                  No. 09-50132

more probable or less probable than it would be without the evidence.” F ED. R.
E VID. 401. Where the evidence sought to be introduced is a prior offense, “its rel-
evance is a function of its similarity to the offense charged.” Beechum, 582 F.2d
at 911. Where the defendant’s intent to commit the offense charged is the issue
addressed, “the relevancy of the extrinsic offense derives from the defendant’s
indulging himself in the same state of mind in the perpetration of both the ex-
trinsic and charged offenses.” Id. Once the court determines that the prior of-
fense required the same mental state as did the charged offense (and the jury
could find that the defendant committed that offense), the evidence satisfies the
first step under rule 404(b). Id. at 913.
      Step two of the Beechum analysis involves the familiar rule 403 balancing
test: “Although relevant, evidence may be excluded if its probative value is sub-
stantially outweighed by the danger of unfair prejudice, confusion of the issues,
or misleading the jury, or by considerations of undue delay, waste of time, or
needless presentation of cumulative evidence.” F ED R. E VID. 403. The amount
of time that has passed between the prior offense and the current charge, and
the overall similarity of the two acts, may affect the probative value of the ex-
trinsic evidence. Limiting instructions delivered from the bench substantially
diminish the risk of unfair prejudice posed by admission of that evidence. Unit-
ed States v. Crawley, 533 F.3d 349, 355 (5th Cir.), cert denied, 129 S. Ct. 522
(2008).
      First, Chandler claims that his prior conviction is not relevant, because it
did not involve the same mental state as the charged offenses. The crime to
which he pleaded guilty in 1989, however, involved the same state of mind re-
quired for conviction under §§ 1014, 1344, and § 1028A. His 1989 credit-card-
abuse conviction came under § 32.31 of the Texas Penal Code. The information
in that case stated that “the Defendant fraudulently obtained property . . . by
presenting an American Express credit card with knowledge that the card had

                                         7
   Case: 09-50132    Document: 00511034917      Page: 8   Date Filed: 02/24/2010

                                  No. 09-50132

not been issued to said Defendant and with knowledge that said card was not
used with the effective consent of [the cardholder]” (emphasis added). Likewise,
§§ 1014, 1344, and 1028A require a defendant to commit the proscribed acts
“knowingly.” The similarity in mental state between the extrinsic offense and
the charged crimes makes the 1989 conviction relevant to the issue of intent and
satisfies step one of Beechum.
      In the alternative, Chandler argues that the district court abused its dis-
cretion in admitting evidence of his prior conviction, because that evidence was
substantially more prejudicial than probative. He avers that evidence of the con-
viction had low probative value, because of the seventeen years that elapsed be-
tween his conviction and subsequent offense, and that the introduction of his pri-
or conviction was likely to inflame the jury.
      Despite the relatively long period of time between the offenses, the district
court did not abuse its discretion in finding that the rule 403 balance favored ad-
mission of the prior conviction. We have upheld admission of evidence older
than seventeen years under rule 404(b). See United States v. Arnold, 467 F.3d
880, 885 (5th Cir. 2006) (citing cases upholding admission of evidence as old as
eighteen years). Moreover, the passage of time since a prior bad act or crime is
not alone dispositive of admissibility. See id; United States v. Brossard, 80 F.3d
1025, 1040 (5th Cir. 1996). It is rather only one factor in determining probative
value that is to be considered along with the similarity of the acts and the other
evidence available to prove the disputed element.
      “The probative value of the extrinsic offense correlates positively with its
likeness to the offense charged.” Beechum, 582 F.2d at 915. Both the extrinsic
and charged offenses involve the perpetration of a financial fraud whereby
Chandler misrepresented his identity for his own pecuniary gain. The signifi-
cant similarity of the crimes imbues the prior conviction with considerable pro-
bative value. Moreover, the conviction was not repetitive or cumulative in rela-

                                        8
   Case: 09-50132    Document: 00511034917      Page: 9   Date Filed: 02/24/2010

                                  No. 09-50132

tion to the government’s other evidence. It therefore retained its probative value
within the prosecution’s case.
      Though the prior conviction posed some threat of prejudice, the rule 403
balance requires exclusion only 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 evi-
dence.” Id. at 915 n.20 (citations and internal quotation marks omitted). Not
only is that a high standard for exclusion, but the district court also made lauda-
ble efforts to minimize the chance of unfair prejudice by giving two separate lim-
iting instructions, one after the government introduced the conviction and one
before deliberation. Both instructions warned jurors against the forbidden pro-
pensity inference and carefully delineated the limited purposes for which evi-
dence of the conviction was relevant. Whatever risk of unfair prejudice re-
mained after delivery of those instructions did not substantially outweigh the
probative value of the conviction.
      The district court properly applied the two-step approach under Beechum.
We cannot say, therefore, that the court abused its discretion in admitting ex-
trinsic evidence of Chandler’s 1989 conviction of credit card abuse.
      The convictions are AFFIRMED.




                                        9
