UNPUBLISHED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Affirmed in part, vacated in part, and remanded by unpublished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Unpublished opinions are not binding precedent in this circuit.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
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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.
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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.
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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.
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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)
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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.
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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
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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
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