United States v. Badra Kaba , 568 F. App'x 882 ( 2014 )

Case: 13-10926 Date Filed: 06/16/2014 Page: 1 of 5
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
____________________________
No. 13-10926
___________________________
D.C. Docket No. 2:12-cr-00199-VEH-RRA-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BADRA KABA,
Defendant-Appellant.
__________________________
Appeal from the United States District Court
for the Northern District of Alabama
__________________________
(June 16, 2014)
Before JORDAN, Circuit Judge, and RYSKAMP * and BERMAN, ** District
Judges.
PER CURIAM:
*
Honorable Kenneth L. Ryskamp, United States District Judge for the Southern District of
Florida, sitting by designation.
**
Honorable Richard M. Berman, United States District Judge for the Southern District of New
York, sitting by designation.
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Badra Kaba appeals his convictions for violating 18 U.S.C. §§ 1029(a)(3),
1029(a)(4), and 1028A, as well as the sentences imposed by the district court.
Following oral argument and a review of the record, we affirm, and address only
those arguments that merit discussion.1
First, considered as a whole, the district court’s jury instruction for the
aggravated identity theft charge under § 1028A adequately conveyed the
government’s burden of proof, and did not constitute error, plain or otherwise. The
district court instructed the jury that Mr. Kaba could be found guilty of violating §
1028A “only if all of the following facts are proven beyond a reasonable doubt,”
and then told the jury that, among other things, “the government must also prove
that the defendant knew that the means of identification . . . belonged to a real
person and not a fictitious person.” Even under de novo review, see United States
v. Prather, 205 F.3d 1265, 1270 (11th Cir. 2000), we conclude that this instruction
would have been understood by a reasonable jury to mean that the government had
to prove beyond a reasonable doubt that Mr. Kaba knew that the means of
1
At oral argument, Mr. Kaba suggested that he had challenged, as impermissible double-
counting, the sentencing enhancement for his possession of the encoder. See U.S.S.G. §
2B1.1(b)(11)(A)(i). Our review of his brief, however, indicates that no double-counting
argument was asserted, and his counsel have confirmed that in a post-argument letter brief. The
only argument Mr. Kaba raised as to this enhancement was that it could not be applied because
there was insufficient evidence that the encoder was functional. See Appellant’s Br. at 41. We
therefore do not address the double-counting issue.
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identification belonged to a real person, as required by Flores-Figueroa v. United
States, 556 U.S. 646 (2009).
Second, exercising plenary review, see United States v. Feliciano, 747 F.3d
1284, 1288 (11th Cir. 2014), we conclude that the evidence was sufficient for the
jury to find Mr. Kaba guilty of violating §§ 1029(a)(3).
Starting with the conviction under § 1029(a)(3), Mr. Kaba argues that the
government did not prove that 15 or more access devices were functional. The
record, however, shows otherwise. Mr. Kaba possessed several dozen credit, debit,
or gift cards issued by various credit card companies. All of these cards had
account numbers encoded on their magnetic strips—strips which could be re-
encoded—and those numbers did not match the account numbers embossed on the
cards. These cards were “access devices” because they could be used, “alone or in
conjunction with another access device, to obtain money, goods, services, or any
other thing of value[.]” § 1029(e)(1). See United States v. Sepulveda, 115 F.3d
882, 887 (11th Cir. 1997). They were also “counterfeit access devices” (i.e.,
access devices that are “counterfeit, fictitious, altered, or forged, or an identifiable
component of an access device,” § 1029(e)(2)) and/or “unauthorized access
devices” (i.e., access devices which are “lost, stolen, expired, revoked, canceled, or
obtained with intent to defraud,” § 1029(e)(3)).
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The possession of these cards—together with, among other things, the
possession of a credit-card encoder, the possession of blank credit cards, the
possession of computer files containing additional credit card numbers, and the use
of B.R.’s card number—also sufficed to permit the jury to find that Mr. Kaba acted
with intent to defraud. Contrary to Mr. Kaba’s suggestion, the government did not
have to prove with direct evidence that the access devices were capable of
immediate use to obtain something of value. 2
Turning to the conviction under § 1029(a)(4), we reject Mr. Kaba’s
argument that the government had to prove that the credit-card encoder found in
his apartment actually worked. For starters, such a requirement is not found in the
statutory language. To the extent that Mr. Kaba contends that intent to defraud
cannot be inferred “from the mere possession of a non-functional piece of device-
making equipment,” Appellant’s Br. at 36, he ignores the fact that software for the
encoder was installed on two computers in his apartment. The encoder was
“device-making equipment” under § 1029(e)(6) because it was “designed or
primarily used for making an access device or a counterfeit access device.” The
2
Mr. Kaba’s challenge to the district court’s loss calculation is dependent on the
contention that the district court erred in finding that there were 49 access devices. See
Appellant’s Br. at 40-41; Appellant’s Reply Br. at 10 n.2. Because we have rejected Mr. Kaba’s
contention with respect to what constitutes an access device, the sentencing challenge based on
that contention fails.
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jury had ample evidence, including the evidence described above in the discussion
relating to § 1029(a)(3), to find that Mr. Kaba had the requisite mens rea.
AFFIRMED.
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