              Case: 13-14252    Date Filed: 07/11/2014   Page: 1 of 6


                                                             [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                 No. 13-14252
                             Non-Argument Calendar
                           ________________________

                     D.C. Docket No. 1:11-cr-20108-MGC-1



UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                       versus

RICARDO VIGNE,

                                                              Defendant-Appellant.

                           ________________________

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

                                  (July 11, 2014)

Before TJOFLAT, WILSON and JORDAN, Circuit Judges.

PER CURIAM:

      Ricardo Vigne appeals his convictions for conspiracy to traffic in and use

unauthorized access devices, in violation of 18 U.S.C. § 1029(b)(2); trafficking in
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and using unauthorized access devices, in violation of 18 U.S.C. § 1029(a)(2); and

aggravated identity theft, in violation of 18 U.S.C. § 1028A(a)(1). On appeal,

Vigne first argues that the court erred by admitting evidence of his 2006

convictions for identity theft and attempted grand larceny. Specifically, he argues

the convictions are not sufficiently similar to the offenses charged in the present

indictment to outweigh concerns of undue prejudice. Second, Vigne argues that

the district court should have granted his motion for judgment of acquittal as to the

conspiracy count because there was insufficient evidence to support a conviction.

For the reasons stated below, we affirm.

                                                 I.

      We review the district court’s rulings as to the admission of evidence for

abuse of discretion. United States v. Jiminez, 224 F.3d 1243, 1249 (11th Cir.

2000). Rule 404(b) of the Federal Rules of Evidence allows evidence of past

crimes to be admitted when the purpose of the evidence is to prove, among other

things, the defendant’s identity. Fed. R. Evid. 404(b). 1

      In order for 404(b) evidence to be admissible, it must satisfy a three-part

test. United States v. Miller, 959 F.2d 1535, 1538 (11th Cir. 1992) (en banc).

      1
          Rule 404(b) provides, in pertinent part:

      Evidence of a crime . . . 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. . . . This evidence may be admissible for another purpose, such as
      proving motive, opportunity, intent, preparation, plan, knowledge, identity,
      absence of mistake, or lack of accident.
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First, the evidence must be relevant to some issue besides the defendant’s

character. Id. Second, there must be sufficient proof to allow a jury to find the

defendant committed the act. Id. Third, the evidence’s probative value must not

be substantially outweighed by one of the dangers listed in Federal Rule of

Evidence 403. Id.2

       However, the application of this test varies depending on the purpose for

which the evidence is offered. United States v. Phaknikone, 605 F.3d 1099, 1108

(11th Cir. 2010). When a prior act is introduced for the purpose of proving

identity, it “must satisfy a particularly stringent analysis.” Id. (internal quotation

marks omitted) When evidence of prior acts is offered to prove identity, the first

prong of the Miller test—the relevance prong—turns on the level of similarity

between the charged crime and the prior act. Miller, 959 F.2d at 1538–39. For the

prior act to be relevant, “[t]he physical similarity must be such that it marks the

offenses as the handiwork of the accused. In other words, the evidence must

demonstrate a modus operandi.” Id. at 1539 (internal quotation marks omitted).

“‘The . . . act must be a “signature” crime, and the defendant must have used a

modus operandi that is uniquely his.’” Phaknikone, 605 F.3d at 1108 (quoting

       2
         Only the first and third prongs of the Miller test—relevance and Rule 403 balancing,
respectively—are disputed here. However, we have held that the third prong has “no logical
application to bench trials.” See Gulf States Utils. Co. v. Ecodyne Corp., 635 F.2d 517, 519 (5th
Cir. Unit A Jan. 1981). We presume that, when making a decision, trial judges are able to
exclude from their minds the improper inferences that one might draw from a piece of evidence.
Id. Accordingly, Vigne can only prevail if the district court abused its discretion when it
determined the evidence of the prior conviction was relevant.
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Miller, 959 F.2d at 1540 (Kravitch, J., concurring)). This requirement “insure[s]

that the government is not relying on an inference based on mere character—that a

defendant has a propensity for criminal behavior. Evidence cannot be used to

prove identity simply because the defendant has at other times committed the same

commonplace variety of criminal act.” Id. (citation and internal quotation marks

omitted)

      The district court did not abuse its discretion by admitting evidence of

Vigne’s prior conviction. In 2006, Vigne was convicted of possession of a forged

instrument after he attempted to purchase a laptop using a stolen Bank of America

debit card and a fake New York driver’s license. In the instant case, Vigne was

accused of, among other things, using a fake New York driver’s license to redeem

a U.S. Post Office money order. At the time of his arrest, Vigne was carrying a

stolen Bank of America debit card. While the two crimes were not exactly the

same, the manner in which they were carried out present the same unique

characteristics—the use of a stolen Bank of America debit card in conjunction with

a fake New York driver’s license to fraudulently obtain something of value. These

shared characteristics are sufficiently similar to be considered Vigne’s signature or

modus operandi. As such, the district court did not abuse its discretion by

admitting the evidence of Vigne’s prior conviction.

                                         II.


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      “We review de novo whether sufficient evidence supports a conviction . . . .”

United States v. Brown, 415 F.3d 1257, 1270 (11th Cir. 2005). In doing so, “we

must determine whether the evidence, construed in the light most favorable to the

government, would permit the trier of fact to find the defendant guilty beyond a

reasonable doubt.” Id. (internal quotation marks omitted). We do not make

credibility determinations or evaluate the weight of the evidence; we merely affirm

the verdict where “there is a reasonable basis in the record for it.” Id. (internal

quotation marks omitted).

      “To support a conspiracy conviction, the government must prove (1) an

agreement between the defendant and one or more persons, (2) the object of which

is to do either an unlawful act or a lawful act by unlawful means.” United States v.

Garcia, 405 F.3d 1260, 1269 (11th Cir. 2005) (per curiam) (internal quotation

marks omitted). To prove the defendant participated in the conspiracy, “the

government must have proven beyond a reasonable doubt, even if only by

circumstantial evidence, that a conspiracy existed and that the defendant

knowingly and voluntarily joined the conspiracy.” Id.

      While mere presence at a scene is insufficient alone to establish a

conspiracy, “presence is a material and probative factor” that may be considered.

United States v. Iglesias, 915 F.2d 1524, 1527 (11th Cir. 1990). Moreover, “a

defendant may be convicted of conspiring with persons unknown if sufficient


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evidence supports the existence and involvement of such unknown persons.”

United States v. Martinez, 96 F.3d 473, 477 (11th Cir. 1996) (per curiam) (internal

quotation marks omitted).

      Construed in the light most favorable to the government, the evidence here

permitted the court to find Vigne guilty of the conspiracy charge beyond a

reasonable doubt. See Brown, 415 F.3d at 1270. The record indicates that Vigne

and an unidentified man made withdrawals on the Yaeger Foundation’s bank

account from the same ATM, with the same PIN, within thirty minutes of each

other. From this, the court could infer that the men knowingly and willfully agreed

to accomplish an unlawful act. Accordingly, the district court’s decision is

affirmed.

      AFFIRMED.




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