Good Cause to Defer 404(b) Rulings: Eleventh Circuit Affirms Post‑Opening Admission of Prior Fraud Conviction to Prove Intent

Introduction

In United States v. Jarnel Sael (11th Cir. No. 25‑10750, Nov. 6, 2025) — a non‑precedential, non‑argument calendar decision — the Eleventh Circuit affirmed a suite of convictions arising from an access‑device and identity‑theft scheme. The appeal presented two focused evidentiary questions:

Whether the district court abused its discretion by admitting a 2019 Florida conviction (grand theft, fraudulent use of personal identification, and credit card forgery) under Federal Rule of Evidence 404(b) to prove intent, knowledge, plan, and related non‑propensity purposes; and
Whether the district court erred by deferring its ruling on the 404(b) motion until after trial commenced.

The panel (Judges Jordan, Kidd, and Tjoflat) upheld the trial court’s rulings. The opinion reinforces two recurring trial‑management and evidence principles in the Eleventh Circuit: (1) prior fraud‑based convictions are admissible under Rule 404(b) to prove intent and knowledge in access‑device/identity‑theft prosecutions when similarity and temporal proximity are present and prejudice is mitigated; and (2) a trial court may defer a 404(b) ruling until after openings when the trial context — including the defense’s theory — is necessary to complete the Rule 403/404(b) calculus, and no objection preserves the issue only for plain‑error review.

Summary of the Opinion

The court affirmed the admission of Sael’s 2019 guilty‑plea conviction to prove intent and knowledge in a 2024 prosecution charging:

Possession of 15+ unauthorized/counterfeit access devices (18 U.S.C. § 1029(a)(3));
Aggravated identity theft (three counts, 18 U.S.C. § 1028A(a)(1)); and
Possession of access‑device making equipment (18 U.S.C. § 1029(a)(4)).

Applying the Eleventh Circuit’s three‑part test (from United States v. Edouard), the panel held:

Relevance to a non‑character issue: By pleading not guilty, Sael made intent a material issue (United States v. Zapata). The 2019 fraud offenses were highly similar to the charged conduct, making them relevant to intent and knowledge (United States v. Kopituk).
Sufficient proof: Because the prior conviction was based on a guilty plea, there was sufficient proof of the prior act for 404(b) purposes (United States v. Booker, 11th Cir. 2025).
Rule 403 balance: High similarity, five‑year proximity (well within the acceptable range per United States v. Calderon), and multiple limiting instructions offset risk of unfair prejudice. Given the government’s need to prove intent beyond a reasonable doubt and the defense theory blaming a co‑defendant, the probative value was not substantially outweighed by prejudice.

As to the timing, the defendant did not object below to the district court’s decision to defer the ruling. Reviewing only for plain error, the panel found none. Rule 12(d) permits deferral on pretrial motions for good cause when trial facts will inform the decision (United States v. Adkinson; United States v. Beard). Because the defense opening put intent and knowledge squarely at issue — a core component of the Rule 404(b)/403 balance (United States v. Jernigan) — deferral was appropriate and not erroneous.

Factual and Procedural Background

A traffic stop in October 2022 led to the discovery of a credit‑card skimmer in plain view, a belt‑looped wallet with twenty debit/credit cards (only some in Sael’s or his co‑defendant Teresa Montgomery’s name), multiple driver’s licenses, unendorsed money orders and checks, and a notebook containing third‑party personal identifying information (PII). Laboratory and investigative follow‑up confirmed that many cards were re‑encoded and otherwise compromised.

The government moved on November 27, 2024, to admit Sael’s 2019 state conviction for grand theft, fraudulent use of personal identification, and credit‑card forgery under Rule 404(b). The district court deferred ruling to review caselaw and later granted the motion after openings, giving limiting instructions before the evidence and before closings. Both Montgomery (who had pled guilty) and Sael testified; the jury convicted on all counts. The court imposed 21 months on the § 1029 counts (concurrent) and a mandatory consecutive 24 months on the § 1028A counts (concurrent with each other), totaling 45 months, plus supervised release and monetary penalties.

Analysis

Precedents Cited and Their Roles

United States v. Culver, 598 F.3d 740 (11th Cir. 2010): Confirms abuse‑of‑discretion review for 404(b) admission.
United States v. Edouard, 485 F.3d 1324 (11th Cir. 2007): Establishes the Eleventh Circuit’s three‑part 404(b) framework and notes Rule 403’s presumption favoring admissibility.
United States v. Kopituk, 690 F.2d 1289 (11th Cir. 1982): Similarity is the touchstone for relevancy under 404(b); same state of mind supports relevance beyond character.
United States v. Zapata, 139 F.3d 1355 (11th Cir. 1998): A not‑guilty plea makes intent a material, contested issue that the government may prove via 404(b) absent steps by the defense to remove intent from dispute.
United States v. Booker, 136 F.4th 1005 (11th Cir. 2025): A prior conviction based on a guilty plea satisfies the “sufficient proof” prong for 404(b) purposes.
United States v. Dorsey, 819 F.2d 1055 (11th Cir. 1987): Factors guiding the 403 balance in 404(b) context: strength of government’s case on intent, similarity, temporal proximity, and whether intent will be contested.
United States v. Calderon, 127 F.3d 1314 (11th Cir. 1997): A six‑year gap not too remote; limiting instructions mitigate prejudice.
United States v. Beard, 761 F.2d 1477 (11th Cir. 1985) and Fed. R. Crim. P. 12(d): Pretrial motions should be decided before trial unless good cause exists to defer; good cause includes when trial facts inform the ruling.
United States v. Adkinson, 135 F.3d 1363 (11th Cir. 1998): Good cause to defer exists if trial facts are relevant; otherwise, issues “entirely segregable” should be decided pretrial.
United States v. Jernigan, 341 F.3d 1273 (11th Cir. 2003): The strength of the government’s evidence is a “primary component” of the 404(b)/403 calculus, often only assessable during trial.
United States v. Turner, 474 F.3d 1265 (11th Cir. 2007); United States v. Hesser, 800 F.3d 1310 (11th Cir. 2015); United States v. Humphrey, 164 F.3d 585 (11th Cir. 1999); United States v. Lejarde‑Rada, 319 F.3d 1288 (11th Cir. 2003); United States v. Bennett, 472 F.3d 825 (11th Cir. 2006): Plain‑error framework and its demanding standards; no plain error absent clear, on‑point precedent; substantial rights require a reasonable probability of a different outcome.

Legal Reasoning

The panel’s reasoning tracked the Edouard framework closely:

Relevance to a non‑character issue (Rule 404(b)(2); Rule 401):
- Intent and knowledge were squarely in dispute because of the not‑guilty plea and the defense theme that Montgomery alone was responsible.
- Similarity was strong: the prior offenses (credit‑card forgery, fraudulent use of ID) and the charged offenses (access‑device fraud, identity theft, skimmer possession) share a common fraudulent state of mind involving deceit, re‑encoding/forgery mechanics, and misuse of personal identifying information. Under Kopituk, this similarity supports relevance to intent rather than character propensity.
Sufficient proof:
- Per Booker, a guilty plea underlying the prior conviction satisfies the evidentiary threshold for the jury to find the extrinsic act occurred by a preponderance.
Rule 403 balance:
- Temporal proximity (five years) was comfortably within the acceptable range (Calderon found six years not too remote).
- The defense made intent a focal dispute from the outset; the court explicitly referenced the government’s “incremental need” to prove guilt beyond a reasonable doubt — underscoring necessity, a factor that elevates probative value where alternative, less‑prejudicial proof is limited.
- Two targeted limiting instructions cabined the jury’s use of the 404(b) evidence to intent, knowledge, plan, opportunity, and absence of mistake/accident — a recognized safeguard that mitigates unfair prejudice (Calderon).
- Given the strong similarity, the close temporal window, and the necessity to rebut the defense’s narrative, the probative value was not substantially outweighed by any risk of unfair prejudice.

On the deferral question, the court’s analysis turned on standard of review and Rule 12(d):

Standard of review: Because Sael did not object to the deferral below, plain‑error review applied. That demanding standard requires an obvious legal error, which was absent here given Eleventh Circuit precedents (Beard, Adkinson, Jernigan) explicitly allowing deferral where trial facts bear on the ruling.
Good cause for deferral: The district court initially deferred to review caselaw, then granted the motion after openings, expressly considering the government’s incremental need and the defense’s intent‑based theory. Jernigan recognizes that the strength and shape of the government’s proof — including how intent is contested — are best assessed at trial, satisfying “good cause.”
No prejudice shown under plain error: The panel noted that the speculative assertion that Sael “may have” waived a jury trial if the ruling had been earlier cannot establish a reasonable probability of a different result.

Impact

Although unpublished and not binding precedent, the opinion offers practical guidance with likely persuasive force in district courts throughout the Eleventh Circuit:

404(b) in fraud/identity‑theft prosecutions: Prior fraud convictions — especially those involving credit‑card forgery and misuse of PII — remain potent proof of intent and knowledge in access‑device/identity‑theft cases when accompanied by proximity in time and limiting instructions.
Guilty pleas streamline 404(b) proof: Booker’s rule that a guilty plea satisfies the “sufficient proof” prong is reaffirmed in application, reducing litigation over the second Edouard factor.
Deferral is compatible with 404(b) balancing: Trial courts may defer 404(b) rulings where openings or early trial evidence clarify whether and how intent will be contested, allowing a more accurate Rule 403 assessment. Defense counsel must object to preserve this issue; otherwise, review is only for plain error.
Limiting instructions as best practice: The court’s repeated, specific limiting instructions were an important prejudice‑mitigating factor. Practitioners should request tailored limiting instructions keyed to the precise 404(b) purposes at issue.
Notice timing remains open: The panel did not reach any challenge to the timing of the government’s 404(b) notice (filed roughly a week before trial), leaving “reasonable notice” issues under Rule 404(b)(3)(A) for another day. Litigants should continue to brief and preserve notice‑timing arguments.
Section 1028A sentencing structure: The case illustrates the mandatory consecutive 24‑month term for aggravated identity theft counts, which run concurrent with each other but consecutive to other terms under § 1028A, shaping plea and trial risk assessments.

Complex Concepts Simplified

Rule 404(b): Generally bars using prior bad acts to say “once a fraudster, always a fraudster.” But it allows such evidence to prove things like intent, knowledge, plan, identity, opportunity, or absence of mistake.
Rule 401 (Relevance): Evidence is relevant if it makes a fact that matters slightly more or less likely.
Rule 403 (Balancing test): Even relevant evidence can be excluded if its unfair prejudice substantially outweighs its value. Courts consider similarity, timing, how strongly intent is disputed, and the government’s need for the evidence.
Limiting instruction: A judge’s instruction telling the jury exactly how they may (and may not) use certain evidence — crucial for 404(b) items.
Preponderance vs. beyond a reasonable doubt: For admitting prior‑act evidence, the government need only show it more likely than not happened (preponderance). To convict, the jury must be persuaded beyond a reasonable doubt.
Plain‑error review: An appellate standard used when an issue wasn’t preserved by objection. The error must be clear under current law and likely to have changed the outcome; otherwise, the conviction stands.
Good cause to defer (Rule 12(d)): A court may postpone deciding a pretrial motion if trial facts will help it decide correctly — especially common with 404(b), where context matters.
Access device / counterfeit access device (18 U.S.C. § 1029): Includes cards, account numbers, or personal identifying information usable to obtain money or services; counterfeit devices are forged or fake versions. Re‑encoded cards are classic indicia of access‑device fraud.
Aggravated identity theft (18 U.S.C. § 1028A): Using another person’s means of identification during certain felonies, carrying a mandatory consecutive 2‑year prison term.
Skimmer/encoder: Hardware used to read and/or write magnetic‑stripe data, often to re‑encode stolen account numbers onto existing cards.

Practice Notes

For the government:
- Anchor 404(b) proffers in similarity and necessity; articulate the “incremental need” relative to other proof.
- Offer certified judgments of conviction and, when helpful, brief Booker to resolve the “sufficient proof” prong.
- Request specific, repeated limiting instructions tailored to permitted 404(b) purposes (intent, knowledge, absence of mistake).
For the defense:
- Consider affirmative steps (e.g., stipulations) to narrow or remove intent as an issue if feasible, recognizing Zapata’s effect.
- Object contemporaneously to both admission and deferral to preserve full appellate review; otherwise, plain‑error review applies.
- Develop Rule 403 arguments emphasizing availability of less‑prejudicial alternative proofs and seek narrowly tailored instructions.
- Preserve and brief Rule 404(b)(3)(A) “reasonable notice” challenges where timing prejudices trial preparation.

Conclusion

United States v. Sael confirms, in the Eleventh Circuit, that a prior fraud conviction may be admitted under Rule 404(b) to prove intent and knowledge in access‑device and identity‑theft prosecutions where similarity and temporal proximity exist and limiting instructions are given. The opinion also underscores that trial courts have “good cause” to defer 404(b) rulings when trial context — particularly defense theories articulated in openings — is necessary to complete the Rule 403/404(b) analysis. While unpublished, the decision is a clear, practical application of Edouard, Zapata, Booker, and Jernigan, and it signals to litigants the importance of preserving objections, requesting tailored limiting instructions, and carefully managing 404(b) notice and timing in fraud‑based prosecutions.