                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 15-4531


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

OFORI AWUAH, a/k/a Oforly Awuah,

                Defendant – Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.     John A. Gibney, Jr.,
District Judge. (3:14-cr-00121-JAG-2)


Submitted:   April 28, 2016                 Decided:   July 7, 2016


Before DUNCAN, KEENAN, and THACKER, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.


John O. Iweanoge, II, THE IWEANOGE’S FIRM, P.C., Washington,
D.C., for Appellant.    Dana J. Boente, United States Attorney,
Alexandria, Virginia, Michael C. Moore, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Richmond,
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

      A    jury    convicted      Defendant-Appellant        Ofori    Awuah   of    one

count of aggravated identity theft, in violation of 18 U.S.C.

§ 1028A(a)(1); three counts of access device fraud, in violation

of 18 U.S.C. § 1029(a); and one count of conspiracy to commit

access device fraud, in violation of 10 U.S.C. § 1029(b)(2).

Awuah contends on appeal that the evidence was insufficient to

support his convictions, and that the district court erred in

admitting testimony concerning prior, uncharged conduct.                           For

the   reasons      that    follow,       we    vacate    Awuah’s     conviction    for

aggravated    identity          theft,   affirm    his   other     convictions,     and

remand for further proceedings consistent with this opinion.



                                              I.

      The charges filed against Awuah stem from his role in a

conspiracy        to   fraudulently       acquire       electronic    devices      from

several Walmart and Best Buy stores across Virginia.                      Viewed in

the light most favorable to the government, see United States v.

Adepoju, 756 F.3d 250, 254 (4th Cir. 2014) (citation omitted),

the evidence to support the charges is as follows.

                                              A.

      On    October       25,    2013,    Awuah    entered    the     Burke   Commons

Walmart in Fairfax County, Virginia, to pick up an Apple iPhone

which was ordered online using a credit card number that had

                                              2
been stolen from an individual in Nesquehoning, PA.              The order

designated   Edward    Johnson   as    the   primary   pickup   person   and

Winfred Mensah as the alternate pickup person. 1

     Walmart requires individuals picking up online orders to

show identification matching the name of either the primary or

alternate designated pickup person.            Requel Reyes, the Walmart

associate who assisted Awuah that day, testified that she gave

Awuah an iPhone after he presented identification matching the

primary   name   on   the   order,    Edward   Johnson.    Walmart   video

surveillance captured this transaction.

                                      B.

     On January 14, 2014, Awuah travelled to a Best Buy store in

Stafford County, Virginia, with three other individuals: Keyana

Barnes, Michael Bonsu, and Dane Ellis.          The group engaged in two

transactions at that store.           First, Bonsu used a counterfeit

credit card given to him by Awuah to pick up an online order for

an Apple iPad worth $631.79.              This order had been placed in

Bonsu’s name using a stolen credit card number.

     Next, Barnes attempted to pick up another order for an iPad

using stolen identification and a different counterfeit card.



     1 Mensah was an acquaintance of Awuah’s. At trial, Mensah
testified that Awuah had stayed at his apartment in early 2013.
Mensah testified that while Awuah was staying with him, Mensah’s
identification went missing.



                                      3
The order number she gave the cashier, however, was for the

order Bonsu had already collected.                 Barnes returned to the car

in which Awuah, Barnes, and Bonsu were waiting and told Awuah

that he had given her the incorrect order number.                            Once Awuah

relayed the correct order number to Barnes, she reentered Best

Buy and attempted to collect the second order.                            When the Best

Buy computer system reported that the last four digits on the

counterfeit card Barnes gave to the cashier did not match the

last four digits of the credit card number used to place that

order, Barnes used her cell phone to call Awuah, who provided

her with the correct credit card number.                       Barnes relayed this

number   to    the     cashier    and    was    finally      able    to    complete    the

transaction.

       After Barnes left the store, Best Buy employees notified

the    Stafford      County    Sheriff’s       Office     about     these    suspicious

transactions.        The Stafford County deputy who responded to the

call   in   turn     called    the     Fredericksburg        Police       Department    to

notify them that the group might visit the Fredericksburg Best

Buy next.

       Later    that    day,     the    group    did    in    fact    travel    to     the

Fredericksburg Best Buy.               Again, Bonsu entered the store first

and picked up an iPad that had been ordered in his name using a

stolen credit card number.              Ellis, Barnes, and Awuah remained in

the car.       While Bonsu was in the store, Awuah made Barnes a new

                                           4
counterfeit credit card using an embossing machine.                            Barnes then

entered    the    store    and   picked    up       another       order    for    an    iPad.

After completing this transaction, Barnes returned to the car in

which Awuah, Bonsu, and Ellis were waiting.

       As soon as the group began to drive away, Fredericksburg

police officers stopped the car.                    Officers searched the vehicle

and    found     new    electronic   devices,             a   credit      card    embossing

machine, and counterfeit credit cards--one of which had been

used by Barnes earlier that day.                 Police took possession of the

phone Awuah was carrying and later recovered messages from that

phone, including an outgoing message stating, “this ofori this

my new num,” as well as messages containing credit card numbers

used to place the fraudulent orders.                          J.A. 642−43.        The four

group members were transported to the police department, where

they were placed under arrest.



                                          II.

       Awuah was indicted in the Eastern District of Virginia on

five     counts:       aggravated    identity            theft,     in     violation      of

18 U.S.C. § 1028A(a)(1); access device fraud, in violation of

18 U.S.C. § 1029(a)(1); access device fraud--obtaining more than

$1,000    in     goods    and    services,          in    violation       of     18    U.S.C.

§ 1029(a)(2); access device fraud--possession of device making

equipment,       in     violation    of        18        U.S.C.    § 1029(a)(4);          and

                                           5
conspiracy   to    commit    access      device     fraud,    in    violation    of

18 U.S.C. § 1029(b)(2).

       Before trial, the government filed a Notice of Intent to

Offer Evidence Pursuant to Federal Rule of Evidence 404(b).                      The

government    sought   to      present        testimony     from   Officer     Eric

Hanidias of the Fairfax County Police Department concerning a

prior, uncharged attempt by Awuah to defraud the Burke Commons

Walmart in February 2013.            After a hearing on the matter, the

district   court   allowed     the      admission      of   this   evidence,    but

directed   the    government      not    to    refer   to    the   February     2013

attempt in its opening statement.               At trial, the district court

instructed   the    jury    that     Officer      Hanidias’s       testimony     was

offered to establish modus operandi, and explained that it could

not be used to establish the character of the defendant.

       At the close of the government’s case, Awuah made a motion

for judgment of acquittal based on insufficiency of evidence as

to all five counts alleged in the indictment.                       The district

court denied this motion, and the jury found Awuah guilty of all

five   counts.     Awuah    was    sentenced      to    a   term   of   twenty-one

months’ imprisonment on the counts of access device fraud and

conspiracy to commit access device fraud, and a consecutive term

of twenty-four months’ imprisonment on the aggravated identity

theft count. J.A. 764−66.         This appeal followed.



                                         6
                                              III.

     Awuah raises two issues on appeal.                       First, he contends that

the evidence presented was insufficient to support the jury’s

verdict.        Second, he contends that the district court erred in

admitting       testimony         under     Federal      Rule    of     Evidence       404(b)

concerning Awuah’s involvement in the February 2013 attempt to

defraud Walmart.           We consider each issue in turn.

                                               A.

     An appellant challenging the sufficiency of the evidence

“faces   a      heavy      burden.”        Adepoju,     756     F.3d    at   254     (quoting

United States v. Young, 609 F.3d 348, 355 (4th Cir. 2010)). We

view all evidence in the light most favorable to the prosecution

and will reverse only where it is clear that the prosecution

failed     to    provide         substantial         evidence    which,        “taking     all

inferences in the government’s favor, could lead a rational jury

to find the evidence sufficient for a conviction.”                                Id. (citing

United States v. Burgos, 94 F.3d 849, 857 (4th Cir. 1996)).

     Although Awuah does not challenge the sufficiency of the

evidence with respect to any specific charge, in an abundance of

caution, we consider his claim with respect to each of the five

charges.         We   hold       that   the    evidence    presented         at    trial   was

insufficient          to    support        Awuah’s     conviction        for       aggravated

identity     theft,        but    reject      his   argument     with    respect      to   the

remaining charges.

                                                7
                                           1.

       The government concedes, and we agree, that the evidence

presented        at     trial    was     insufficient       to   support            Awuah’s

conviction       for     aggravated     identity    theft.       Under         18   U.S.C.

§ 1028A(a), a person commits aggravated identity theft if he or

she    “knowingly       transfers,     possesses,      or   uses,    without        lawful

authority, a means of identification of another person,” “during

and in relation to” the commission of one of several enumerated

crimes.     Of particular importance here, to sustain a conviction

under this statute, the government must prove that the defendant

knew the identification belonged to a real person.                        Adepoju, 756

F.3d at 256 (citing Flores-Figueroa v. United States, 556 U.S.

646, 647 (2009)).

       Here, Awuah’s indictment charged that he possessed and used

a     “license        bearing   number    xxxx0613      belonging         to    [Winfred

Mensah]”    on        October   25,    2013.    J.A.    145.        The    government,

however, presented no direct evidence that Awuah had ever used

or possessed Mensah’s identification at any time in connection

with this criminal scheme.               Instead, Requel Reyes, the cashier

who assisted Awuah on October 25, 2013, testified that the man

who picked up the relevant order used identification matching

the primary name on that order, Edward Johnson.                           Further, the

government did not introduce any evidence that Edward Johnson

was a real person.

                                           8
       The government thus failed to prove that Awuah possessed or

used    identification              belonging    to     a   real    person    during       or   in

relation         to    this        scheme.       Accordingly,         we    vacate        Awuah’s

conviction on the aggravated identity theft count and remand for

further proceedings consistent with this opinion.

                                                 2.

       Next,      we    consider        Awuah’s       various      convictions       of    access

device      fraud      and        conspiracy     to    commit      access     device      fraud.

Because many of the essential elements of these three charges

overlap, and much of the evidence is related, we consider these

charges together.

       To       sustain       a    conviction     of    access      device     fraud,       under

18 U.S.C. § 1029(a)(1), the government was required to prove

that the defendant knowingly used a counterfeit access device,

with    the      intent       to     defraud,     and       that   the     offense    affected

interstate commerce.                 A credit card number is an access device.

See    18 U.S.C.          §       1029(e)(1).         Walmart      surveillance       footage,

Reyes’s         testimony,           and     Walmart        records       proved      that      on

October 25, 2013, Awuah picked up an order for an iPhone from

the Burke Commons Walmart.                      This order had been placed online

using       a    credit       card     number    that       had    been    stolen     from      an

individual in Pennsylvania.                    Given that his name was not listed

on that order, nor was his credit card used to pay for the

phone, Awuah must have known that this order was fraudulent.

                                                 9
       To sustain a conviction of access device fraud--obtaining

more    than    $1,000        in    goods      and     services,       under     18    U.S.C.

§ 1029(a)(2), the government must prove the same elements listed

above and additionally must prove that over the course of one

year the defendant or a coconspirator used access devices to

obtain goods valued at over $1,000.                     Barnes’s testimony and Best

Buy records established that on January 14, 2014, the day Awuah

was    apprehended         by      the    police,       the     group        knowingly      and

intentionally         used         stolen      credit         card     numbers,        stolen

identification,         and     counterfeit          cards    to     acquire    four     Apple

iPads--each valued at $631.79--from a nationwide retailer.

       To sustain a conviction of access device fraud--possession

of device making equipment, under 18 U.S.C. § 1029(a)(4), the

government must prove that the defendant knowingly, and with the

intent to defraud, possessed equipment that could be used to

make counterfeit access devices, and that the possession of the

equipment       was   in      or    affecting         interstate        commerce.           The

government      did   so      in   this     case.       After      apprehending       Awuah’s

group, police searched the car in which the group was traveling

and found several counterfeit credit cards on which false names

and    credit    card      numbers       had   been     embossed,       as     well    as   the

embosser used to create those cards.                          At least one of these

cards was used to fraudulently acquire an iPad from a nation-

wide retailer on January 14, 2014.

                                               10
       To    sustain     a   conviction         of   conspiracy         to   commit   access

device fraud, under 18 U.S.C. § 1029(b)(2), the government must

prove that the defendant was a party to a conspiracy to commit

access      device    fraud,      and    some    conduct      in    furtherance       of   the

conspiracy occurred.              Here, Barnes’s testimony established that

Awuah was involved in a conspiracy to commit access device fraud

on   January     14,    2014.       This    charge      was    further         supported    by

evidence      collected      by    the    police     during    their         search   of   the

vehicle in which Awuah and his coconspirators were traveling--

particularly messages pulled from the phone Awuah was carrying

that       included    credit     card     numbers     used        to    place   fraudulent

orders.

       Together, the evidence viewed in the light most favorable

to the government is sufficient to support Awuah’s convictions

on each of the counts of access device fraud and conspiracy to

commit      access     device     fraud.        Accordingly,            we   reject   Awuah’s

sufficiency argument with respect to these counts. 2



       2   In his brief Awuah argues that,

       [t]he prosecution simply failed to prove its theory
       that. . . Awuah had a business partner in Ghana who
       made online purchases. . .   [or that he] owned the
       phone

containing credit card and order information at issue here.
Appellant’s Br. at 7-8. However, the government did not need to
prove that Awuah had a Ghanaian partner or that he owned the
phone he was carrying.    The government presented sufficient
(Continued)
                                             11
                                        B.

     Next, we consider Awuah’s argument that the district court

erred    by   admitting      evidence   of    his   February       2013     attempt   to

defraud       Walmart    under      Federal     Rule        of    Evidence      404(b).

Rule 404(b) allows the admission of evidence of prior bad acts

to   prove      “motive,      opportunity,      intent,          preparation,    plan,

knowledge, identity, absence of mistake, or lack of accident.”

Fed. R. Evid. 404(b)(2).             We have held that the admission of

404(b)    evidence      is   permissible      where    it    meets    the    following

criteria:

     (1) The evidence must be relevant to an issue, such as
     an element of an offense, and must not be offered to
     establish the general character of the defendant.    In
     this regard, the more similar the prior act is (in
     terms of physical similarity or mental state) to the
     act being proved, the more relevant it becomes.
     (2) The act must be necessary in the sense that it is
     probative of an essential claim or an element of the
     offense.    (3) The evidence must be reliable.      And
     (4) the   evidence's  probative   value  must  not   be
     substantially   outweighed  by   confusion  or   unfair
     prejudice in the sense that it tends to subordinate
     reason to emotion in the factfinding process.

United States v. Queen, 132 F.3d 991, 997 (4th Cir. 1997).                            We

review    the   admission      of   404(b)    evidence       under    a   deferential

abuse-of-discretion standard.                United States v. Williams, 740




evidence from which the jury could have found Awuah guilty of
each of the counts of access device fraud and conspiracy to
commit access device fraud.



                                        12
F.3d 308, 314 (4th Cir. 2014) (citation omitted).                                  A district

court   has      abused       its    discretion     only    where       the    admission     of

evidence was “arbitrary or irrational.”                     United States v. Haney,

914 F.2d 602, 607 (4th Cir. 1990).

      The       evidence       Awuah    challenges    is    testimony          from    Officer

Hanidias that establishes the following.                         On February 8, 2013,

Awuah attempted to pick up an order that had been placed online

using      a    stolen        credit    card    number     from       the     Burke    Commons

Walmart.             Before     Awuah    completed       this    transaction,          Walmart

employees discovered that the order was fraudulent and called

the   police.            Officer       Hanidias     responded         to    that     call   and

questioned Awuah at the store.

      In       response       to    questioning,    Awuah       told       Officer    Hanidias

that he came to the store to pick up an item that had been

ordered        for    him     by    another    individual.            Awuah    told   Officer

Hanidias that he had been asked to resell the device online and

split the profits from that sale with the individual who placed

the order.            Officer Hanidias asked Awuah if he knew that the

credit card number used to place the order had been stolen, and

Awuah responded that he did not.

      Awuah          argues    that     this   testimony        was    “not    sufficiently

related to the charged offense to render it adequately relevant

to prove intent or knowledge.”                      Appellant’s Br. at 11.                  The



                                               13
government    counters      that     this     evidence       was     necessary     to

establish modus operandi and intent.

      We are satisfied that the district court did not abuse its

discretion    in   admitting       Officer    Hanidias’s      testimony.          The

challenged evidence establishes that Awuah was previously caught

engaging in substantially the same behavior for which he was

subsequently charged, at the same store.                 It also establishes

that Awuah was made aware at that time, just eight months before

the first offense for which he was charged, that the order he

was asked to pick up and resell had been placed using a stolen

credit card number.

      Of particular importance, we note that the district court

issued an appropriate limiting instruction which fully explained

the   purpose      of    admitting      Officer       Hanidias’s          testimony,

adequately    addressing       any    concerns        that    the        jury   might

inappropriately use this evidence.              See, e.g., Queen, 132 F.3d

at 997.

                                       IV.

      For the foregoing reasons, we vacate Awuah’s conviction on

the   aggravated    identity       theft     count,    affirm       in    all   other

respects,    and   remand   for    further     proceedings         consistent    with

this opinion.

                                                              AFFIRMED IN PART,
                                                               VACATED IN PART,
                                                                   AND REMANDED

                                       14
