The opinion
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NOT FOR PUBLICATION
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 25-10750
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JARNEL SAEL,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 0:24-cr-60086-RS-2
____________________
Before JORDAN, KIDD, and TJOFLAT, Circuit Judges.
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2 Opinion of the Court 25-10750
PER CURIAM:
Jarnel Sael appeals his conviction for one count of possession
of fifteen or more unauthorized and counterfeit access devices,
three counts of aggravated identity theft, and one count of posses-
sion of access-device making equipment. He argues that the Dis-
trict Court erroneously granted the Government’s motion to intro-
duce his prior conviction under Federal Rule of Evidence 404(b)
and that the District Court erroneously deferred its ruling on the
Rule 404(b) evidence until after trial commenced. We affirm.
I.
Law enforcement officers conducted a traffic stop of Jarnel
Sael in October 2022 after noticing the car he was driving had an
altered and expired tag. Teresa Montgomery, the owner of the car,
was in the passenger seat. The officers could smell burnt cannabis
emanating from inside the car. Sergeant Andrew Clark then used a
flashlight to see inside the car and noticed a black credit card skim-
mer, or credit card encoding machine, in plain view protruding
from the pocket behind the driver’s seat. Clark asked Sael for his
driver’s license and noticed numerous credit cards in Sael’s wallet
when he opened it. This raised further suspicion. The officers asked
about Sael and Montgomery’s criminal history. Montgomery
stated that she had previously been convicted of fraud and was cur-
rently on pretrial release. Sael stated that he had previously been
convicted of grand theft. The officers then asked Sael and Mont-
gomery to step out of the car, detained them, and searched the ve-
hicle.
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25-10750 Opinion of the Court 3
During the search of the car, the officers discovered several
unendorsed money orders, an unendorsed check, and a voided
check endorsed to the Greater Miami Jewish Federation, along
with the previously seen black credit card skimmer. They also re-
moved a blue wallet fastened to Sael’s belt loop with twenty debit
cards and multiple driver’s licenses. 1 Sael confirmed that the wallet
was his. Five of the debit cards had Sael’s name on them, two had
Montgomery’s name, and the other thirteen had the names of
other people. 2 Montgomery’s purse, which was in the backseat of
the car, contained twenty-two debit cards, some with her name and
some with others’ names. It also contained a notebook with the
names, birth dates, and social security numbers of other people
listed in it.
A grand jury indicted Sael and Montgomery in May 2024.
The indictment charged Sael with one count of possession of fif-
teen or more unauthorized and counterfeit access devices, in
1 The parties disagree about the number of licenses found. Sael states that
there were two Florida driver’s licenses, two Florida learner’s permits, and one
Florida identification card. He also states that two of the cards contained the
information and photo of other people, while one had the information of
other people but the photo of Sael. The Government states that Sael had three
driver’s licenses in his wallet, all of which had the information of other people
but one with Sael’s photo.
2 It was later discovered that thirteen of the cards had been re-encoded with
account numbers different from those embossed on them, other cards had
damaged chips, and one card belonged to a resident of Kissimmee, Florida, but
had been shipped to an address in Miami.
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violation of 18 U.S.C. § 1029(a)(3) (Count 1) 3; three counts of ag-
gravated identity theft, in violation of 18 U.S.C. § 1028A(a)(1)
(Counts 2, 3, and 4); and one count of possession of access-device
making equipment, in violation of 18 USC § 1029(a)(4) (Count 5).
On November 27, 2024, the Government filed a motion to admit
evidence under Rule 404(b) that Sael pleaded guilty and was con-
victed in 2019 in Florida for one count of grand theft, one count of
fraudulent use of personal identification, and one count of forgery
of a credit card. Sael filed a motion to strike on December 2, 2024,
arguing that the “late filing” was an act of gamesmanship by the
Government. Trial commenced one week later on December 9.
The Government raised its motion again, orally, prior to opening
statements, and stated that it intended to introduce the conviction
through the testimony of an agent. The Court asked the Govern-
ment for caselaw to show it was allowed to introduce the convic-
tion without Sael testifying, and it stated that it would defer its rul-
ing so that it could review the caselaw.
On December 10, 2024, during trial, the Court granted the
Government’s Rule 404(b) motion, stating that the past conviction
did “satisfy all requirements to make [it] admissible” and was nec-
essary for the Government to prove Sael’s guilt beyond a
3 An access device is a card; an account number; or personal identifying infor-
mation, including a social security number, date of birth, or address, that a
person can use to help open a bank account or take out a loan. A counterfeit
access device is a fake or forged device. An unauthorized access device is an
access device that is stolen or used and obtained with the purpose or intent to
defraud.
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25-10750 Opinion of the Court 5
reasonable doubt. Before the jury heard the evidence, the judge in-
formed the jury that the information must not be considered “to
decide whether [Sael] engaged in the activity alleged in the indict-
ment,” but that it was for the “limited purpose” of “assisting in de-
termining whether [Sael] had the state of mind or intent necessary
to commit the crime charged in the indictment.”
Montgomery and Sael both testified at Sael’s trial. 4 Mont-
gomery testified that she and Sael were dating at the time of the
traffic stop and that they had spent that day getting money orders
from different businesses with the fraudulent credit cards. She ex-
plained that Sael ordered the skimmer online, showed her how to
use it, and kept it in the car that day for safekeeping. They used the
cards to buy money orders because they were untraceable, and
Montgomery typically went inside the store to buy them with Sael
coaching her on the phone. Further, the notebook was written in
both of their handwritings, and Sael had someone else help him
buy the information they kept in it.
Sael, in turn, testified that he never touched the skimmer,
that he had nothing to do with the notebook, and that he was just
a driver that day. He also gave various reasons for why he had the
different cards in his wallet. For example, he claimed some be-
longed to old friends and some were never in his wallet but were
instead in the car. He also admitted to the 2019 conviction that was
already introduced through the agent’s testimony.
4 Montgomery had already pleaded guilty to her charges.
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Before closing arguments, the District Court gave another
limiting instruction to the jury related to the Rule 404(b) evidence.
It told the jury that it could not consider Sael’s prior bad acts in
determining whether he engaged in the offense for which he was
on trial, but that it could consider them “for a limited purpose” of
determining whether Sael had the state of mind, intent, motive, or
opportunity necessary to commit the crime charged; whether he
“acted according to a plan” or “in preparation to commit a crime”;
or whether he committed the charged acts “by lack of accident or
absence of mistake.” The jury ultimately found Sael guilty on all
five counts.
Sael was sentenced to a total of 45 months’ imprisonment—
twenty-one months for Counts 1 and 5, to run concurrently with
each other, and twenty-four months for Counts 2, 3, and 4, to run
concurrently with each other and consecutive to Counts 1 and 5—
followed by three years of supervised release The Court also im-
posed monetary penalties. Sael timely appeals.
II.
Sael argues that the District Court erroneously admitted the
evidence of his prior conviction because it was irrelevant under
Rule 401 and unduly prejudicial under Rule 403. He also argues
that the Court erroneously deferred its ruling on the motion to ad-
mit the evidence until after trial commenced. We discuss each
claim in turn.
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25-10750 Opinion of the Court 7
A.
“We review the district court’s admission of prior crimes or
bad acts under Rule 404(b) for abuse of discretion.” United States v.
Culver, 598 F.3d 740, 747 (11th Cir. 2010) (internal quotation marks
omitted) (alterations adopted).
Evidence of prior bad acts is inadmissible to establish the de-
fendant’s character or propensity, but it may be admissible for an-
other purpose, “such as proving motive, opportunity, intent, prep-
aration, plan, knowledge, identity, absence of mistake, or lack of
accident.” Fed. R. Evid. 404(b).
We apply a three-part test to determine the admissibility of
a prior bad act under Rule 404(b): (1) “it must be relevant to an issue
other than [the] defendant’s character”; (2) there must be “suffi-
cient proof ” for a jury to find by a preponderance of the evidence
that the defendant committed the prior bad act; and (3) the proba-
tive value of the evidence must not be substantially outweighed by
its undue prejudice, and the evidence must satisfy Rule 403. United
States v. Edouard, 485 F.3d 1324, 1344 (11th Cir. 2007); see also Fed.
R. Evid. 403 (“The court may exclude relevant evidence if its pro-
bative value is substantially outweighed by a danger of one or more
of the following: unfair prejudice, confusing the issues, misleading
the jury, undue delay, wasting time, or needlessly presenting cumu-
lative evidence.”).
Regarding the first prong, “[s]imilarity of the extrinsic of-
fense to the offense charged is the standard by which relevancy is
measured under Rule 404(b).” United States v. Kopituk, 690 F.2d 1289,
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1334 (11th Cir. 1982); see also Fed. R. Evid. 401 (“Evidence is rele-
vant if: (a) it has any tendency to make a fact more or less probable
than it would be without the evidence; and (b) the fact is of conse-
quence in determining the action.”). Indeed “[a] finding that the
offenses involved the same state of mind renders the extrinsic of-
fense relevant to an issue other than character because it lessens the
likelihood that the defendant acted with lawful intent in connection
with the charged offense.” Id. Further, a “defendant who enters a
not guilty plea makes intent a material issue which imposes a sub-
stantial burden on the government to prove intent, which it may
prove by qualifying Rule 404(b) evidence absent affirmative steps
by the defendant to remove intent as an issue.” United States v. Za-
pata, 139 F.3d 1355, 1358 (11th Cir. 1998).
For the second prong, where a prior conviction is based on a
guilty plea, there is sufficient evidence for the jury to find by a pre-
ponderance of the evidence that the prior act occurred for pur-
poses of Rule 404(b) admissibility. United States v. Booker, 136 F.4th
1005, 1014 (11th Cir. 2025).
And for the third prong, “[w]hether the probative value of
Rule 404(b) evidence outweighs its prejudicial effect depends upon
the circumstances of the extrinsic offense.” United States v. Dorsey,
819 F.2d 1055, 1061 (11th Cir. 1987). We consider various factors
such as “the strength of the government’s case on the issue of in-
tent, the overall similarity of the extrinsic and charged offenses, the
amount of time separating the extrinsic and charged offenses[,] and
whether it appeared at the commencement of trial that the
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defendant would contest the issue of intent.” Id. We have found
that a six-year span between a prior conviction and present conduct
was not so remote as to diminish the prior act’s probative value.
United States v. Calderon, 127 F.3d 1314, 1332 (11th Cir. 1997). And
unfair prejudice is mitigated by a district court’s limiting instruc-
tion. Id. at 1346. Further, Rule 403’s exclusionary function is used
sparingly, for “the balance should be struck in favor of admissibil-
ity.” Edouard, 485 F.3d at 1344 n.8 (internal quotation marks omit-
ted).
Here, the District Court correctly applied the 404(b) test and
did not abuse its discretion. First, the Government submitted Sael’s
prior conviction to show his intent, not character, to commit the
present crime, which Sael put at issue by pleading not guilty. See
Zapata, 139 F.3d at 1358. Further, the 2019 conviction was for,
among other things, forgery of a credit card and fraudulent use of
personal identification. These are very similar to the instant charges
of identity theft, possession of a credit card skimmer, and posses-
sion of fifteen or more counterfeit access devices. Both involve de-
ceit, forgery, and fraud. In other words, the same state of mind is
required to commit both. 5 Thus, the 2019 conviction is relevant to
the issue of intent for the present offense.
5 Though the judge did not expressly state that the two crimes required the
same state of mind, he did review the crimes involved in the past conviction
and the instant offense. He then stated the 404(b) requirements, including rel-
evance; that a past conviction can be probative of state of mind; and that the
404(b) requirements were met here.
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Second, the 2019 conviction was based on a guilty plea. As a
matter of law, then, there was sufficient proof for the jury to find
by a preponderance of the evidence that Sael committed that prior
offense. Booker, 136 F.4th at 1014.
Last, the probative value of the 2019 conviction was not sub-
stantially outweighed by undue prejudice. As already stated, the
past conviction and the present offense are very similar, and they
occurred only five years apart. Further, Sael’s not guilty plea made
clear at the start of trial that he would contest intent. And beyond
that, the Court gave the jury two limiting instructions related to
the past conviction. The conviction’s probative value was not sub-
stantially outweighed by undue prejudice.
The Court did not abuse its discretion in admitting the 2019
conviction.
B.
We review for abuse of discretion a district court’s decision
to reserve ruling on a pretrial motion until after a trial begins.
United States v. Beard, 761 F.2d 1477, 1479 (11th Cir. 1985). However,
when a party raises a claim of evidentiary error for the first time
on appeal, we review only for plain error. United States v. Turner, 474
F.3d 1265, 1276 (11th Cir. 2007). To establish plain error, the party
must show (1) there is “error, (2) that is plain, and (3) that has af-
fected [his] substantial rights.” United States v. Hesser, 800 F.3d 1310,
1324 (11th Cir. 2015). If those three conditions are met, the Court
“may exercise [its] discretion to recognize a forfeited error” if (4)
“the error seriously affects the fairness, integrity or public
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25-10750 Opinion of the Court 11
reputation of judicial proceedings.” Id. (citation and internal quo-
tation marks omitted) (alterations adopted).
In regard to the second prong of plain error review, an error
cannot be plain if it is not obvious or clear under current law. United
States v. Humphrey, 164 F.3d 585, 588 (11th Cir. 1999). In other
words, “where the explicit language of a statute or rule does not
specifically resolve an issue, there can be no plain error where there
is no precedent from the Supreme Court or this Court directly re-
solving it.” United States v. Lejarde-Rada, 319 F.3d 1288, 1291 (11th
Cir. 2003). For the third prong, a plain error does not affect a sub-
stantial right unless “there is a reasonable probability that there
would have been a different result had there been no error.” United
States v. Bennett, 472 F.3d 825, 831–32 (11th Cir. 2006).
“The [district] court must decide every pretrial motion be-
fore trial unless it finds good cause to defer a ruling.” Fed. R. Crim.
P. 12(d). Such “good cause for deferral exists only if facts at trial will
be relevant to the court’s decision,” United States v. Adkinson, 135
F.3d 1363, 1369 n.11 (11th Cir. 1998), for deferral in that situation
is in the interest of “sound judicial economy.” United States v. Beard,
761 F.2d 1477, 1479 (11th Cir. 1985). “Indeed, one of the primary
components of the Rule 404(b) calculus is the strength of the gov-
ernment’s evidence, a matter that plainly cannot be properly ascer-
tained until the trial itself.” United States v. Jernigan, 341 F.3d 1273,
1286–87 (11th Cir. 2003) (citation omitted).
Though Sael filed a motion in the District Court to strike the
Government’s Rule 404(b) motion because of its “late filing,” he
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12 Opinion of the Court 25-10750
did not object to the District Court’s decision to defer ruling on the
Government’s motion until after trial commenced. 6 Because he
raises this issue now for the first time on appeal, we review for plain
error. Sael fails under that test.
At step one, we find no error in the Court’s choice to defer
ruling on the Rule 404(b) motion. Though it stated that it would
defer ruling on the motion in order to review the relevant caselaw,
when it later ruled on the motion it stated that it found “the Gov-
ernment’s incremental need for the evidence to prove guilt beyond
a reasonable doubt [was] essential.” It, thus, clearly weighed the
strength of the Government’s case when it made the decision. In-
deed, right before the Court ruled on the motion, the prosecutor
explained that Sael’s opening statement “put knowledge and intent
at issue and . . . blam[ed] the entire thing on [Montgomery].” In
other words, the motion was clearly not “entirely segregable” from
the evidence to be presented at trial, see Adkinson, 135 F.3d at 1369
n.11, so deferral was not error. Sael fails at the first prong of plain
error review. We need not analyze the second, third, or fourth.7
6 We note that Sael’s motion below stated that the Government’s Rule 404(b)
motion was an act of “gamesmanship” because the case had been close to trial
multiple times before without any similar motion from the Government and
because the Government now filed the motion during a shortened holiday
week. Sael gave no caselaw in support of his claim and, regardless, does not
raise it again here. We, thus, need not consider the argument.
7 Though, we do note that Sael’s proposition that he “may have” waived his
right to a jury trial if he had known earlier that the 2019 conviction would be
admitted does not rise to a reasonable probability that the result would have
been different, as required under the third prong. First, we do not know
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There was no plain error.
III.
The District Court did not err by admitting the past convic-
tion or by deferring its ruling on the admission.
AFFIRMED.
whether he actually would have waived the right. Second, we do not know
whether the Government would have agreed to a plea deal or whether the
Court would have approved it.