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                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 14-11324
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 4:13-cr-00075-MW-CAS-3



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

versus

DARIUS JEMMOTT,

                                                         Defendant-Appellant.

                       ________________________

                Appeal from the United States District Court
                    for the Northern District of Florida
                      ________________________

                             (January 9, 2015)

Before JORDAN, JULIE CARNES, and BLACK, Circuit Judges.

PER CURIAM:
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       During the course of an investigation by Florida state investigators and the

Tallahassee police department of possible public assistance fraud, the latter learned

that the defendant, Darius Jemmott (“Defendant”), had used a fraudulently-

acquired electronic food stamp card, issued to another individual, to make several

purchases. After further investigation, a federal grand jury indicted Defendant for

conspiring to commit mail and wire fraud (Count 1), for three substantive counts of

actually committing wire fraud through his use of this electronic card (Counts 4, 5,

6), and for aggravated identity theft of the person in whose name the fraudulently-

acquired card was issued (Count 7), in violation of 18 U.S.C. §§ 1341, 1343, 1349;

of 18 U.S.C. §§ 1343 and 2; and of 18 U.S.C. §§ 1028A(a)(1) and 2, respectively.

       Defendant was convicted by a jury on all counts,1 and the district court

sentenced him to a one-day concurrent sentence for all counts except for the

aggravated identity theft count. On that count, the court imposed a mandatory two-

year consecutive sentence. Defendant does not challenge his conviction on the

three substantive wire fraud counts. He does challenge his conviction for

conspiracy to commit wire fraud and his conviction for aggravated identify theft,

as set out in Counts 1 and 7 of the indictment, arguing that the district court erred

when it admitted extrinsic acts evidence pursuant to Federal Rule of Evidence


1
  Joined in this indictment with Defendant were co-defendants Dwayne Phanor and Rodrigue
Bissainthe. Both co-defendants subsequently pled guilty, and Defendant was the only defendant
who went to trial.
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404(b) and when it denied Defendant’s two motions for a mistrial based on the

latter’s argument that government counsel had exceeded the limits placed on the

use of this Rule 404(b) evidence by the court.

        After careful review, we conclude that the district court did not err and we

affirm Defendant’s conviction on all counts.

I.    The Investigation

      The United States Department of Agriculture sponsors a program to provide

economic assistance to enable qualified low-income persons to purchase food.

Known as the Supplemental Nutrition Assistance Program (“SNAP”), the program

is administered in Florida by its Department of Children and Families (“the

Department”). The program works as follows: an applicant for assistance submits

an application to the Department. If approved, JP Morgan Chase (“JP Morgan”),

which also administers part of the program, issues an Electronic Benefits Transfer

(“EBT” or “food stamp”) card to the approved individual. This EBT card is sent to

the benefit recipient by the United States Postal Service. The card is typically

valid for a six-month period, and, functioning as a debit card, it is loaded with a set

amount of money that the recipient can draw down on whenever the card is

presented to an authorized merchant. A recipient who wishes to change the

address at which his card is to be sent can do so by telephoning a JP Morgan call

center and providing personal identity information, including the recipient’s name,


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date of birth, and social security number.

      The investigation leading to the conviction of Defendant began when

Department investigators learned that during a two-day period of time, there had

been 20 applications for public assistance from 2202 Magnolia Street in

Tallahassee, each in a different name, and each indicating that the applicant was in

a one-member household with zero income. Suspecting identity theft and fraud,

the investigators began probing further and learned from the JP Morgan call center

that 47 calls inquiring about making a change of address or seeking other

information had been made from a telephone number that was associated with this

Magnolia Street address. Further investigation revealed that this same telephone

number was also associated with two other Tallahassee addresses where fraudulent

applications and potential identity theft were suspected: 706 West Georgia Street

and 1001 Ocala Road.

      An investigator caught a break when, while visiting a Sunoco gas station

where one of the fraudulently-obtained EBT cards had been used, he spotted a

male in the act of using this card, which had been issued in the name of a “David

M.” and had been directed to be sent to the Magnolia Street address. Tracking the

driver from the tag number on the car, the investigator obtained driver’s license

records and learned that the driver and user of the David M. EBT card was not

“David M.,” but was Darius Jemmott, the defendant in this case. Obtaining an


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arrest warrant and later a search warrant, Tallahassee police arrested Defendant as

he was driving away from his apartment and thereafter searched Defendant’s

apartment. The officers found the David M. EBT card in Defendant’s pocket, and

later learned that he had made multiple charges on this card at local grocery stores

and gas stations.

      But that is not all that they found. Inside the pocket on the driver’s door of

Defendant’s car, they found an envelope addressed to a “Ronald R.” at 1001 Ocala

Road, which co-defendant Phanor would later state was an address that had been

provided to him by Defendant. Inside this envelope was a debit card representing a

tax refund issued by the government to “Ronald R.” Further, in the back seat of

the car, the officers found notebooks containing 50 lists of names, with associated

personal identification information, including social security numbers and dates of

birth, as well as four sets of employer ID numbers and numerous unopened,

addressed envelopes containing debit cards commonly used for tax refunds.

Officers later concluded that these lists and envelopes were related to a stolen

identity/income tax refund fraud scheme.

      The investigating officers obtained another valuable lead when they spoke to

one of Defendant’s neighbors as they were arresting Defendant at his apartment.

In talking to this neighbor, who turned out to be future co-defendant Dwayne

Phanor, the officers learned that Phanor had the same telephone number that had


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been used to make the 47 calls to JP Morgan to change EBT recipients’ addresses.

In fact, Phanor had the telephone on him at the time.

       Accordingly, the officers took Phanor into custody as well and began their

simultaneous questioning of Phanor and Defendant in different interview rooms.

In response to questions, Defendant stated that a guy named Fizzle had given him

the EBT (food stamp) card issued to “David M.,” the envelopes containing debit

(tax refund) cards issued to “Ronald R.” and various other people, and the lists of

personal identification information of numerous people. Defendant stated that he

had just met this Fizzle for the first time at a McDonald’s, when the latter

spontaneously decided to give to Defendant, a stranger until that moment, these

electronic cards and personal identification information. Fizzle then asked if

Defendant could provide him with an address where he could have future cards

sent, and Defendant gave him the 1001 Ocala Road address, where a friend of

Defendant lived. Later, Fizzle sold Defendant the “David M.” EBT card for $80-

100.

       Unbeknownst to Defendant, Phanor, who was being questioned in a nearby

room, had just admitted that it was he who had sold Defendant the David M. EBT

card. The interviewing officer confronted Defendant with Phanor’s admission that

he had sold the EBT card to Defendant. Defendant then admitted that it was

Phanor, not Fizzle, who had sold him the EBT card, but Defendant stuck with his


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story that Fizzle had given him the rest of the materials.

      In addition, during his interview, Phanor also stated that it was Defendant

who had provided him with the Ocala Road address, which was the address of a

friend of Defendant’s, for Phanor to use.

II.   Defendant’s Motion In Limine To Exclude Evidence Discovered in
      Search of Defendant and His Vehicle

      Prior to trial, Defendant had filed a motion in limine to exclude admission of

any of the evidence discovered during the search of Defendant’s vehicle. As

noted, that evidence included the envelope addressed to a “Ronald R.” at 1001

Ocala Road, containing a debit card representing a tax refund; the notebooks

containing 50 lists of names with associated personal identification information,

including social security numbers and dates of birth; four sets of employer ID

numbers; and numerous unopened, addressed envelopes containing debit cards

commonly used for tax refunds. Defendant argued that this evidence did not meet

Federal Rule of Evidence 404(b)’s standards for admission of extrinsic acts

evidence, and that its admission would unfairly prejudice Defendant, in violation

of Rule 403. The gist of Defendant’s argument was that while this material

perhaps constituted evidence that he was engaged in tax fraud and in the identity

theft connected with that fraud, it was not relevant to showing whether Defendant

was guilty of conspiring to commit “food stamp” fraud, and the attendant identity

theft, with which Defendant was charged. The government disagreed and argued
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that this evidence fit within the parameters of Rule 404(b) and that its probative

value outweighed any prejudice to Defendant.

       The district court engaged in a lengthy colloquy with counsel concerning

this motion. Over the government’s objection, the court declined to allow the latter

to use this extrinsic evidence, in its entirety. Yet, given the fact that there was

evidence that Defendant had given the 1001 Ocala Road address to Phanor for his

use in the food stamp fraud and attendant identity theft scheme, given the fact that

the Ronald R. tax refund debit card found in Defendant’s car was in an envelope

addressed to this same Ocala Road address, and finally given the fact that one of

the 50 lists of personal identification information contained the personal

information of “Ronald R.,” these facts were probative of Defendant’s knowing

and intentional involvement in the conspiracy count in which he was charged.

They were therefore also relevant in contradicting Defendant’s defense that he was

merely a buyer of one EBT card from Phanor, and was not otherwise involved in

Phanor’s broader “food stamp” fraud conspiracy.

III.   Discussion

       On appeal, Defendant argues that the district court abused its discretion by:

(1) admitting into evidence, under Rule 404(b), the one list of names with personal

identifying information and the one envelope addressed to “Ronald R.” at Ocala

Road; and (2) in denying his subsequent motions for mistrial.


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      A.     Admission of List and Envelope

      We review the district court’s admission of evidence under Rule 404(b) for a

clear abuse of discretion. United States v. Sterling, 738 F.3d 228, 234 (11th Cir.

2013), cert. denied, 134 S. Ct. 2682 (2014). Under this standard, we affirm so long

as the district court’s decision was not based on a clear error of judgment or an

application of the wrong legal standard. See United States v. Matthews, 431 F.3d

1296, 1312 (11th Cir. 2005).

      Rule 404(b) provides that:

      Evidence of a crime, wrong, or other act is not admissible to prove a
      person’s character in order to show that on a particular occasion the
      person acted in accordance with the character.

Fed. R. Evid. 404(b)(1). Such evidence, however, is admissible for other purposes,

such as proving motive, intent, knowledge, absence of mistake, or lack of accident.

Fed. R. Evid. 404(b)(2). We have held that evidence of a defendant’s other crimes

or acts is admissible under Rule 404(b) when: (1) it is relevant to an issue other

than the defendant’s character; (2) sufficient proof exists for a jury to find by a

preponderance of the evidence that the defendant committed the acts in question;

and (3) the probative value of the evidence is not substantially outweighed by

undue prejudice under Federal Rule of Evidence 403. United States v. Edouard,

485 F.3d 1324, 1344 (11th Cir. 2007).

      When determining the probative value of extrinsic act evidence, we


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consider: (1) the government’s incremental need for the evidence to prove guilt

beyond a reasonable doubt; (2) the similarity of the extrinsic act and the charged

offense; and (3) the closeness or remoteness in time between the extrinsic act and

the charged offense. United States v. Ellisor, 522 F.3d 1255, 1268 (11th Cir.

2008). If extrinsic act evidence is essential to obtaining a conviction, it is more

probative, and thus, more likely to be admissible. Sterling, 738 F.3d at 238. The

risk of prejudice from extrinsic act evidence may be reduced by an appropriate

limiting instruction. Ellisor, 522 F.3d at 1268.

      Rule 403 permits the district court to exclude relevant evidence when its

probative value is substantially outweighed by the danger of “unfair prejudice,

confusing the issues, misleading the jury, undue delay, wasting time, or needlessly

presenting cumulative evidence.” Fed. R. Evid. 403. Exclusion of relevant

evidence is an extraordinary remedy, though, and it should be used sparingly.

United States v. Smith, 459 F.3d 1276, 1295 (11th Cir. 2006). In conducting the

Rule 403 analysis, we view any relevant evidence in the light most favorable to its

admission, maximizing its probative value and minimizing any undue prejudicial

impact. Id.

      Applying the above standards, we find no abuse of discretion in the

admission, pursuant to Rule 404(b), of two of the items found in the search of

Defendant’s apartment and car: (1) the envelope sent to “Ronald R.” at the Ocala


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Road address and (2) the one list of 25 names with personal identification

information, including “Ronald R.’s” name and identifying information. Contrary

to Defendant’s argument, all three prongs of the Rule 404(b) admissibility test are

met.

       First, the above information was relevant to an issue other than Defendant’s

character. Specifically, the evidence was relevant in showing that Defendant

conspired with and knowingly and intentionally participated in Phanor’s SNAP

fraud scheme. Of course, such participation and intent were necessary elements

that the government had to prove, and Defendant’s plea of not guilty put the

government to its burden on all elements. See United States v. Maxwell, 579 F.3d

1282, 1299 (11th Cir. 2009) (to obtain a conviction pursuant to 18 U.S.C. § 1349,

the government must show Defendant knew of and willfully joined in the scheme

to defraud); see also Edouard, 485 F.3d at 1345 (a defendant who pleads not guilty

makes intent a material issue).

       But beyond the general need of the government to prove all elements of the

charged offenses beyond a reasonable doubt, there was a more specific need for the

evidence here. Specifically, while Defendant had acknowledged that he might not

have much of a defense as to the substantive wire fraud counts—because there

seemed to be ample evidence that he knew that he was not “David. M,” yet he used

the latter’s EBT card to make purchases—Defendant made clear that he was


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vigorously challenging the contention that he had conspired with Phanor as to the

overall food stamp fraud conspiracy. To the contrary, Defendant intended to argue

that he was but a buyer of one fraudulently-obtained EBT card from Phanor—the

David M. EBT card—and was not otherwise involved in Phanor’s overarching

conspiracy.

      Given that defense strategy, tying Defendant to the 1001 Ocala Road address

that the government contended he had given to Phanor to use to receive future

fraudulent EBT cards was extremely important because, if proved, that act by the

Defendant meant that Defendant had been more than a buyer of one EBT card.

Instead, it would mean he had acted to further Phanor’s food-stamp fraud

conspiracy and scheme. Admission of the envelope addressed to “Ronald R.” at

1001 Ocala Road and found in the possession of Defendant was relevant to this

end. Further, Defendant’s possession of this envelope addressed to “Ronald R.” at

Ocala Road, with the enclosed debit card to “Ronald R.,” as well as the sheet with

the list of personal identification information of 25 people, including “Ronald R.,”

also bolstered the government’s argument that Defendant had not just helped

Phanor in his conspiracy, but that he had done so knowingly and with the intent to

assist Phanor’s fraud scheme. That is, evidence that Defendant possessed this

envelope addressed to a “Ronald R.” at the same Ocala Road address he had given

to Phanor, combined with Defendant’s admission that he was aware that the list of


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names, including “Ronald R.’s,” was associated with some sort of fraudulent

scheme, was evidence that strongly suggested Defendant’s knowledge that Phanor

would not be using this Ocala Road address that Defendant had provided him for a

benign purpose. This is so, because, indeed, Defendant was not using the address

for such a purpose.

      In addition, the list of names was relevant to whether Defendant knew that

the EBT card he used belonged to a real person, which the government had to

prove in order to convict him of aggravated identity theft. See Flores-Figueroa v.

United States, 556 U.S. 646, 647, 129 S. Ct. 1886, 1888 (2009). In his post-arrest

statement, Defendant denied having any knowledge of “David M.” Yet, the

evidence of this list of names of real people, combined with Defendant’s admission

that he had been given the list of names with the understanding it would be used

for some type of fraud and that he thought that some of the names on the list

belonged to real people, was probative of an element that the government had to

prove. Indeed, Defendant indicated his impression that one could discern that a

name was not the name of a real person when the social security numbers were too

long. In summary, this evidence was relevant to an issue other than Defendant’s

character.

      Second, there was sufficient proof that Defendant committed the extrinsic

act of possessing the Ocala Road envelope and the list of 25 names with the


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knowledge that they were related to some sort of fraud. The list and envelope were

found in Defendant’s car and, in his post-arrest statement, Defendant admitted that

he had provided the Ocala Road address to the person who had given him the list

and had arranged for the envelope to be sent. Further, Defendant admitted that he

had been given the list of names, with the understanding that it would be used for

fraud and that, in fact, some of the names on the list belonged to real people.

      Third, the evidence’s probative value was not substantially outweighed by

any undue prejudice as the envelope and list were extremely important to the

government’s case on the conspiracy and identity theft charges. See Sterling, 738

F.3d at 238. Again, the envelope was an important rebuttal to Defendant’s

argument that he was merely a buyer, and not a participant in the SNAP fraud

scheme. The envelope tied Defendant to the Ocala Road address and corroborated

the evidence that Defendant had provided Phanor with the Ocala Road address.

From this evidence, the jury could conclude that Defendant intentionally

participated in the conspiracy by giving the Ocala Road address to Phanor, not for

an innocent purpose, but for use in the SNAP fraud scheme. The list was also

probative because, given Defendant’s argument that he did not know that “David

M.” was a real person, this element was particularly in play. Defendant told the

investigating officer that he knew that some of the identities on the list of names

were real and that it was somehow related to fraud. This evidence, in conjunction


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with additional testimony about the application and verification process for

obtaining SNAP benefits, was relevant in proving that Defendant knew that a real

identity had been used to obtain the EBT card.

      Finally, when the district court admitted the envelope and list, it gave an

appropriate limiting instruction. Specifically, the jury was instructed that it was

going to hear evidence about “acts of the defendant that may be similar to those

charged in the indictment but may have been committed on other occasions” and

that it could not “consider this evidence to decide if the defendant committed the

acts charged in the indictment.” The jury was further instructed that the evidence

could only be considered to decide whether Defendant “had the state of mind or

intent necessary to commit the crime charged in the indictment” or “committed the

acts charged in the indictment by accident or mistake.” This instruction minimized

any unfair prejudice that might have resulted from admission of the list and the

envelope.

      In sum, all of the requirements of Rule 404(b) were met with respect to the

list and the envelope. Consequently, Defendant has not shown that the district

court’s decision was based on a clear error of judgment.

      B.     Motion for Mistrial

      Defendant made two motions for mistrial during the trial, arguing that a

comment by the prosecutor in his opening statement and a later statement by a


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government witness went beyond the constraints that the district court had placed

on use of the extrinsic evidence. We review the denial of a motion for a mistrial

for an abuse of discretion. United States v. Ettinger, 344 F.3d 1149, 1161 (11th

Cir. 2003). A defendant is entitled to a grant of a mistrial only upon a showing of

substantial prejudice. Id. If the district court gives a curative instruction, reversal

is appropriate only if the evidence “is so highly prejudicial as to be incurable” by

the district court’s instruction. United States v. Garcia, 405 F.3d 1260, 1272 (11th

Cir. 2005).

      The district court did not abuse its discretion in denying Defendant’s

motions for a mistrial. First, the district court, which had articulated the

boundaries for use of the extrinsic evidence, disagreed that the prosecutor had

exceeded those bounds. Second, when read in context, the challenged statements

did not tell the jury about the existence of the evidence excluded by the district

court. The prosecutor, in his opening statement, said that, as to the aggravated

identity theft count, the government “hope[d] to be able to point [the jury] to some

statements [the defendant] made about the lists of names and identities that he had

in the back seat of his car” to prove that Defendant knew that the EBT card he had

used belonged to a real person. The subsequent discussion at the bench reflects

that not even the parties at that time believed the prosecutor was referring to any

list other than the one deemed admissible. Moreover, the court instructed the jury


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that the statements made by the lawyers in opening or closing arguments were not

evidence. Likewise, the investigating officer’s testimony about Defendant being

“given . . . a bag of personal identification information containing this piece of

paper and others” and being provided with “the names on this piece of paper and

this amount of information in the bag” may have implied that there were other

papers in the bag, but it did not suggest to the jury that those papers contained

additional lists of names with identifying information.

      Finally, contrary to Defendant’s argument on appeal, the one list and

envelope were not solely deemed admissible to show that Defendant knew that the

EBT card he had used belonged to a real person. Instead, the district court’s ruling

on the motion in limine and the jury instruction given upon the evidence’s

admission reflect that the evidence was also admitted to show Defendant’s

knowledge and intent to join the conspiracy.

      For all of the above reasons, we affirm Defendant’s convictions.

      AFFIRMED.




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