NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                               ________________

                                      No. 13-4595
                                   ________________

                            UNITED STATES OF AMERICA

                                             v.

                                  JEAN A. SERAPHIN,

                                              Appellant
                                   ________________

                      Appeal from the United States District Court
                         for the Western District of Pennsylvania
                     (D.C. Criminal Action No. 2-10-cr-00229-004)
                     District Judge: Honorable Maurice B. Cohill, Jr.
                                   ________________

                       Submitted Under Third Circuit LAR 34.1(a)
                                   January 12, 2015

                Before: AMBRO, FUENTES, and ROTH, Circuit Judges

                             (Opinion filed January 29, 2015)

                                   ________________

                                       OPINION*
                                   ________________


AMBRO, Circuit Judge



*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
       On March 3, 2010, Appellant Jean A. Seraphin as well as Brent Hercules Antoine,

Richard G. Foster and Ramar Gardiner went on a shopping spree in Southwestern

Pennsylvania. In all, they visited five Walmarts, nine Giant Eagle grocery stores, and

two GetGo convenience stores. The group’s principal aim was to obtain merchandise

worth thousands of dollars using fraudulently procured credit cards.

       The group’s “carding” scheme was going along without a hitch until they reached

the Walmart in Bethel Park. At that location, both Foster and Antoine separately tried to

purchase several gift cards and electronics. Both attempts were unsuccessful. Foster, for

his part, looked to purchase a $1,500 Walmart gift card, but all of the credit cards he

submitted for payment were declined. Then Antoine, in another part of the store, offered

seven different credit cards to purchase two iPods and two laptops. But the cashier

cancelled the transaction because the signature on the seventh card appeared suspect.

After the pair left, a cashier alerted area Walmarts of the suspicious transactions.

       Within the hour, the group arrived at their next stop: a Walmart just down the road

in Carnegie. Foster again attempted to purchase Walmart gift cards with a fraudulent

credit card. And while this time the transaction was approved, he unexplainably changed

his mind about the purchase and left the store. Close in time and true to form, another

(but this time unidentified) man tried to purchase iPods and a notebook computer in a

different part of the store. But none of the six cards he used went through. He declined

the cashier’s invitation to speak to management or call his credit card company and

instead left. According to several eyewitnesses, he appeared nervous.



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       Sensing that a carding scheme was ongoing, the loss-prevention employee at the

Carnegie Walmart called local law enforcement and recorded the license tag of the

minivan Foster got into. Officers arrived just in time to stop the group before they made

their way out of the parking lot. Inside the minivan officers found four males (Antoine,

Foster, Gardiner and Seraphin). Officers also noticed a safe in the back row, located

between the captain seats in which Antoine and Seraphin were seated. Because none of

the men were listed as authorized drivers in the rental agreement for the minivan, officers

decided to impound the rental and instructed the group to remove any personal

belongings. Notably, no one claimed ownership of the safe.

       Officers secured a warrant to search the locked safe. Inside, they found eleven

plastic bags, each of which contained gift cards and receipts. The gift cards had all been

purchased on the same day (March 3, 2010) and were grouped according to the store in

which each card was bought. Also present were 39 credit cards. The credit cards were in

the name of either Brandon Anderson or Sean Francis—neither of whom had a

connection to any member of the group—and had been used to purchase the gift cards.

       Approximately eight months later, on November 15, 2010, and in a seemingly

unrelated incident, Seraphin, Gardiner and another individual, Mark Daniel, were

involved in a border search near the Canada-New York border, on the Canadian side of

the Peace Bridge. A federal agent learned that the search revealed brand new

merchandise without receipts and that Daniel was in possession of five counterfeit credit

cards. Among the products found inside were: (a) four iPod Touches in their original

wrapping; (b) three iPads; (c) a printout listing the location of western New York

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Walmarts; (d) 33 gift cards; (e) five X-box games; (e) two lap-top computers; (f) 10 cell

phones; and (g) two counterfeit checks. The agent conducting the search also learned

that Seraphin and Gardiner were the subject of a pending credit card investigation in

Pittsburgh.

       Seraphin and Antoine were ultimately charged with: (1) conspiracy to engage in

access device fraud; (2) possession of 15 or more counterfeit or unauthorized access

devices; and (3) three counts of aggravated identify theft. They were tried jointly and

convicted on all counts. (Foster and Gardiner were charged with slightly different crimes

and entered guilty pleas.) The District Court sentenced Seraphin to 36 months’

imprisonment and a three-year term of supervised release.

       Seraphin raises two arguments on appeal: that the District Court abused its

discretion in allowing the Government to introduce evidence of the Peace Bridge

incident; and that there was insufficient evidence at trial to convict him of the crimes for

which he was charged.

       Seraphin contends that evidence of the Peace Bridge incident had “no logical

connection” to the crimes he was being tried for and was introduced only to paint him as

a criminal. In support, he highlights a passage from the Government’s closing argument

where it stressed the unlikelihood that Seraphin could have found himself in two

strikingly similar situations without engaging in any wrongdoing:

         Wow. How unique. Gardner [sic] is driving the car on the Peace Bridge
         in New York eight months after this happened in March 2010.
         November 2010, eight months later, we see Gardner [sic] and Seraphin
         together again in a car and what’s in that car? Counterfeit checks,
         electronic merchandise, two laptop computers.

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         Wait a minute. If he didn’t have bad luck, he wouldn’t have no luck at
         all. What are the odds? Now its not evidence - - well, we are not saying
         that [because] he was caught later on in Buffalo, he must have been
         doing it in Pittsburgh, but it is evidence for you to consider he intended
         to have a conspiracy eight months earlier with these guys.

       Our analysis of Seraphin’s argument unfolds in two steps. Was evidence of the

Peace Bridge incident admitted for a proper purpose under Federal Rule of Evidence

404(b)? If it was, we assess whether its probative value was substantially outweighed by

its prejudicial effect.

       Under Rule 404(b), the Government can’t offer evidence of a defendant’s bad acts

to impugn his character or suggest he has a penchant for committing certain crimes. See

Fed. R. Evid. 404(b)(1). The same evidence is, however, admissible if it is introduced to

rebut the assertion that defendant’s “association with criminal co-conspirators was wholly

innocent” or that he was “‘merely present’ at the scene of criminal activity without guilty

knowledge or intent.” United States v. Rodriguez, 

, 119 (1st Cir. 2000).

       We are convinced that the evidence of the Peace Bridge incident belongs in the

latter box, principally because it was introduced to give the jury a reason to view

Seraphin’s defense with more than a shade of skepticism and in turn “conclude that he

was a knowing and intentional participant in the crimes charged in the indictment.” 

reasons—and because of the circumstantial nature of the Government’s

case—its probative value was significant.

       We highlight that the District Court’s limiting instruction—given twice—

mitigated any prejudice. Both times, the Court admonished the jury to consider the


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evidence only for the dual purpose of determining whether there was a relationship

between Seraphin and Gardiner and whether he had the knowledge and intent to engage

in the charged conspiracy. Against this background, the District Court did not abuse its

discretion and properly admitted the evidence under Rule 404(b).

       Seraphin’s challenge to the sufficiency of the evidence is on even weaker footing.

Regarding the conspiracy count, he contends that the Government didn’t produce any

evidence of actual guilt other than his presence in the van with the three other occupants.

And, for the substantive counts, he contends that the evidence at trial wasn’t enough to

convince a rational trier of fact that he either produced, used or trafficked in counterfeit

access devices or possessed those devices.

       In reviewing a challenge to the sufficiency of the evidence, we “review the record

in [a] light most favorable to the prosecution to determine whether any rational trier of

fact could find proof of guilt[] beyond a reasonable doubt.” United States v. Brodie, 

, 133 (3d Cir. 2005). In doing so, we are careful not to “usurp the role of the

jury by weighing credibility and assigning weight to the evidence, or by substituting [our]

judgment for that of the jury.” 

way, “[w]e must sustain the [jury’s]

verdict if there is substantial evidence, viewed in a light most favorable to the

government, to uphold the jury’s decision[.]” United States v. Gambone, 

,

170 (3d Cir. 2003) (citation omitted).

       Ample evidence supported all of Seraphin’s convictions. As to the conspiracy

count, while it is true that mere presence isn’t enough to support a finding of conspiracy,

the evidence at trial painted a much richer picture of Seraphin’s involvement. He and the

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other three occupants all hailed from the metropolitan New York area. They were found

in a minivan with no luggage or other belongings to suggest that they planned to be in the

Pittsburgh area for longer than it took to pay a visit to each of the stores they visited on a

single day. There was also no evidence to suggest that Seraphin joined the group

midstream or that his presence in the minivan on March 3 was purely by chance. This is

especially true in the light of the Peace Bridge incident months later. Thus, as the

Government argues, a rational juror could conclude that Seraphin’s presence in the

minivan was “deliberate, purposeful, and not the result of simply being in the wrong van

on the wrong date and in the company of the wrong type of people.”

       The same reasoning applies to the substantive counts.

                                       *   *   *   *   *

       For these reasons, we affirm.




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