Submitted: September 23, 2016
from United States District Court for the Northern District
of Iowa - Waterloo
LOKEN, GRUENDER, and BENTON, Circuit Judges.
GRUENDER, CIRCUIT JUDGE.
convicted Jose Miguel Machorro-Xochicale of unlawful use of
identification documents, in violation of 18 U.S.C. §
1546(a), and misuse of a social security account number, in
violation of 42 U.S.C. § 408(a)(7)(B).
Machorro-Xochicale appeals, claiming there was insufficient
evidence to show that he committed the offenses. He also
alleges the district court abused its discretion when it prevented
him from cross-examining a witness about and arguing
selective prosecution at trial. We affirm.
October 31, 2014, Machorro-Xochicale applied for a job with
Mehmert Tiling, a construction business located in Saratoga,
Iowa. Brent Mehmert, the president of Mehmert Tiling, was
present when Machorro-Xochicale completed a Form I-9.
Machorro-Xochicale listed a social security number ending in
"2828" on the Form I-9, indicated he was a
non-citizen national of the United States, and signed and
dated the document. Additionally, as part of the application
process, Machorro-Xochicale presented Mehmert with
identification documents-a permanent resident card ending in
"344" and a social security card ending in
"2828." Mehmert testified that he did not tell
Machorro-Xochicale which documents to provide and that
Machorro-Xochicale knew which documents were required to be
hired and work in the United States. Mehmert reviewed the
identification documents and the Form I-9, but he did not
sign the second page of the Form I-9, which certifies under
penalty of perjury that he examined Machorro-Xochicale's
hired Machorro-Xochicale and his brother on November 3, 2014.
Mehmert testified that he spoke very little Spanish, so he
would communicate with Machorro-Xochicale in English. He also
testified that Machorro-Xochicale appeared to understand
instructions given in English.
while later, immigration agents came to Mehmert Tiling to
investigate Machorro-Xochicale's brother. Because
Machorro-Xochicale and his brother had similar names, Mehmert
accidentally gave immigration authorities
Machorro-Xochicale's employment paperwork. Immigration
agents then investigated Machorro-Xochicale's permanent
resident card and social security card and found that they
were falsified. Immigration officials then obtained a warrant
for Machorro-Xochicale and arrested him.
and Customs Enforcement Agent Richard Moore testified that
while en route to Cedar Rapids, Iowa, he advised
Machorro-Xochicale of his Miranda rights in Spanish.
Machorro-Xochicale replied in Spanish, stating that he
understood his rights and was willing to be interviewed
without an attorney. After a few questions in Spanish,
Machorro-Xochicale began spontaneously responding in English.
Machorro-Xochicale admitted that he bought the permanent
resident card and social security card for $200 from an
unknown person in Chicago, knew they were false documents,
and understood it was against the law to use the false
documents to obtain employment. During the ride, Agent Moore
and his partner were armed, but their guns were holstered and
concealed. Machorro-Xochicale never saw their weapons.
was charged in a two-count indictment with unlawful use of
identification documents and misuse of a social security
account number. At trial, defense counsel questioned Agent
Moore regarding whether the Government would prosecute
Mehmert for his failure to complete the employer's
portion of the Form I-9. Machorro-Xochicale alleged that the
Government's decision not to prosecute Mehmert
demonstrates that Machorro-Xochicale was selectively
prosecuted based on his race or nationality. The district
court sustained the Government's objection to the
question, finding that whether Mehmert failed to fill out the
employers' portion of the Form I-9 was not relevant to
the issue of whether Machorro-Xochicale committed the
offenses charged in the indictment.
moved for a judgment of acquittal at the close of evidence.
The district court denied the motion and reaffirmed its
decision to exclude so-called evidence of selective
prosecution. The jury found Machorro-Xochicale guilty on both
counts. Machorro-Xochicale was sentenced to 126 days'
imprisonment and a one-year term of supervised release.
review Machorro-Xochicale's claims of insufficient
evidence de novo, "considering the evidence in
the light most favorable to the government and accepting all
reasonable inferences that may be drawn therefrom in favor of
the verdict." United States v. Ellis, 817 F.3d
570, 573 (8th Cir. 2016). We emphasize that our review of the
trial evidence is "highly deferential, " United
States v. Mosby, 101 F.3d 1278, 1282 (8th Cir. 1996),
because "it is the responsibility of the jury-not the
court-to decide what conclusions should be drawn from
evidence admitted at trial, " Ellis, 817 F.3d
at 573 (quotations omitted). Accordingly, "we will
reverse a conviction only if no reasonable jury could have
found the defendant guilty." Id.
convict Machorro-Xochicale on the unlawful use of
identification documents count, the Government had to prove
beyond a reasonable doubt that (1) Machorro-Xochicale
knowingly used documents prescribed by statute or regulation
for entry into or as evidence of authorized stay or
employment in the United States, and (2) Machorro-Xochicale
knew the documents had been forged, counterfeited, falsely
made, or unlawfully obtained. See 18 U.S.C. §
1546(a); United States v. Elzahabi, 557 F.3d 879,
885 (8th Cir. 2009) (reciting the same standard for alien
registration receipt cards). To convict Machorro-Xochicale on
the misuse of a social security account number count, the
Government had to prove beyond a reasonable doubt that (1)
Machorro-Xochicale represented a social security account
number as assigned to him by the Commissioner of Social
Security; (2) this representation was false; (3) he made the
representation with the intent to deceive; and (4) he used
the social security number for the purpose of obtaining a
benefit to which he was not entitled. See 42 U.S.C.
§ 408(a)(7)(B); United States v. Porter, 409
F.3d 910, 915 (8th Cir. 2005).
first claims that there is insufficient evidence showing that
he was the person who submitted the documents, suggesting
that the person may have been his brother. We disagree. At
trial, Mehmert testified that Machorro-Xochicale completed
the form and provided him with the Form I-9 and
identification documents. He was thoroughly cross-examined
regarding the identity of the person completing the forms.
The jury heard this testimony, and as we have noted, "it
is the responsibility of the jury-not the ...