                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 15-1546
                         ___________________________

                              United States of America

                         lllllllllllllllllllll Plaintiff - Appellee

                                            v.

                                 Yoirlan Tome Rojas

                       lllllllllllllllllllll Defendant - Appellant
                                       ____________

                     Appeal from United States District Court
                   for the Northern District of Iowa - Sioux City
                                  ____________

                             Submitted: March 14, 2016
                                Filed: June 27, 2016
                                  ____________

Before MURPHY, BEAM, and GRUENDER, Circuit Judges.
                          ____________

GRUENDER, Circuit Judge.

       A jury found Yoirlan Tome Rojas guilty on several charges related to his use
of counterfeit credit cards. He now appeals, claiming that the district court1 plainly
erred at trial by allowing a Government witness to testify to the ultimate question of

      1
      The Honorable Mark. W. Bennett, United States District Judge for the
Northern District of Iowa.
whether certain acts constituted the crime of identity theft. He also argues that the
court abused its discretion by permitting the introduction of impeachment evidence
to undermine his assertion that he lacked criminal intent. We affirm.

                                           I.

       On November 6, 2013, police received a call from a victim whose credit card
information had been used without authorization at a Walmart store in Storm Lake,
Iowa. A Walmart employee assisted police in retrieving the store’s video recordings,
which showed that a man in brown coveralls had made the fraudulent purchases. The
culprit had attempted several transactions at multiple registers in the store, only some
of which were successful. The store’s transaction records revealed that the culprit
purchased approximately $600 in store gift cards and merchandise on November 6.
Police used the video images to create a flyer depicting the culprit and his two-tone
Chevy Silverado pick-up truck.

       Several days later, a Storm Lake police officer saw the truck and followed it
to a driveway on a residential street. The officer noticed that the driver was wearing
the same brown coveralls worn by the man in the Walmart video. The officer
approached the driver, Yoirlan Tome Rojas, and asked if he would go to the police
station for an interview. Rojas agreed. While Rojas was at the station, a second
victim called the Storm Lake police to report that her husband’s credit card
information had been used without authorization at the same Walmart store several
months earlier on September 13. Rojas remained at the station while one officer went
to the store to obtain a video recording of the September 13 fraudulent transaction.
Upon viewing the video, police confirmed that the same culprit had made fraudulent
purchases on both occasions. Police identified Rojas as that culprit.

      Based on this information, police obtained a search warrant for Rojas’s
apartment. Inside, they found keys to a storage locker in the apartment building’s

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hallway and a shaving razor of the type purchased in one of the fraudulent Walmart
transactions. Police then obtained a search warrant for the storage locker. The locker
contained approximately 244 counterfeit credit cards, including a card bearing the
sixteen-digit account number that had been used fraudulently to purchase gift cards
on November 6, a map listing all of the Walmart stores in Iowa, and gift cards from
various stores, including Walmart.

       A grand jury charged Rojas with several crimes related to the credit card fraud,
including use of counterfeit access devices, in violation of 18 U.S.C. § 1029(a)(1);
possession of fifteen or more counterfeit access devices, in violation of 18 U.S.C.
§ 1029(a)(3); money laundering, in violation of 18 U.S.C. § 1956(a)(1); and
aggravated identity theft, in violation of 18 U.S.C. § 1028A(a)(1). At the time of his
arrest, Rojas had several pairs of nearly identical credit and debit cards in his wallet.
Although all of the cards bore his name, one card in each pair had been re-encoded
with account information that did not belong to Rojas and that did not match the
number embossed on the front of the card. Prior to trial, Rojas filed a motion to
suppress these cards as illegally seized evidence. The Government did not oppose
this motion, and the court granted it.

        During trial, the Government presented the testimony of several law
enforcement officials who had been involved in the investigation. The officers
testified that a counterfeit credit card bearing the information associated with the
November 6 victim had been found in Rojas’s storage locker. The prosecutor asked
one of the Government’s witnesses, Special Agent Michael Hawkins: “[I]f anyone
were to use this [credit] card without the [owner’s] permission, would that constitute
identity theft?” Special Agent Hawkins responded that it would. Rojas did not object
to the question or to the testimony it elicited.

       Rojas opted to testify on his own behalf. He admitted using the counterfeit
credit cards at the Walmart in Storm Lake; however, he maintained that he did not

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know that the cards were counterfeit. He stated that he had accepted the cards as
payment for his work as a mechanic because he believed that they were gift cards, and
he maintained that he did not understand the difference between credit cards and gift
cards.      The district court allowed the Government to use extrinsic
evidence—specifically, the pairs of credit and debit cards found in Rojas’s wallet at
the time of arrest—to impeach these assertions during the cross examination of Rojas.
The court also permitted Special Agent Hawkins to testify as a rebuttal witness that
one card in each pair was authentic and unaltered, while the other had been re-
encoded with electronic account information that belonged to someone other than
Rojas. At the close of evidence, the jury found Rojas guilty of all charges. The court
sentenced Rojas to 51 months’ imprisonment and two years’ supervised release.

                                            II.

       In this appeal, Rojas first contends that the district court improperly allowed
Special Agent Hawkins to invade the province of the jury when he testified to the
ultimate question whether certain conduct constituted the crime of identity theft.
Because Rojas did not object to this statement during trial, we review only for plain
error. See United States v. Eagle, 515 F.3d 794, 801 (8th Cir. 2008). An appellant
demonstrates plain error if he shows that: “(1) the district court committed an error,
(2) the error is clear or obvious, and (3) the error affected his substantial rights.”
United States v. Thornberg, 676 F.3d 703, 706 (8th Cir. 2012) (quoting United States
v. White Bull, 646 F.3d 1082, 1091 (8th Cir. 2011)). If an appellant makes this
showing, an appellate court “may then exercise [its] discretion to notice a forfeited
error, but only if the error seriously affects the fairness, integrity, or public reputation
of judicial proceedings.” Eagle, 515 F.3d at 801. Here, even if we assume arguendo
that the court erred by permitting Special Agent Hawkins’s testimony, we conclude
that Rojas has not shown that the error affected his substantial rights.




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      To demonstrate that his substantial rights were affected, “a defendant is
generally required to show ‘a reasonable probability that the outcome [of the district
court proceedings] would have been different absent the alleged error.’” United
States v. Wallace, 713 F.3d 422, 427 (8th Cir. 2013) (quoting United States v.
Yielding, 657 F.3d 688, 707-08 (8th Cir. 2011)). Rojas cannot meet this burden
because the record reveals that, independent of Special Agent Hawkins’s testimony,
“there was ample evidence upon which a jury could have found that [Rojas]
committed the substantive offense charged.” See United States v. Farrell, 563 F.3d
364, 378 (8th Cir. 2009) (finding no plain error even though the court allowed a
witness to “usurp[] the jury’s function” by opining on the strength of the
Government’s case and the credibility of its witnesses).

       At trial, the court accurately instructed the jury that the crime of aggravated
identity theft has four elements that the Government must prove beyond a reasonable
doubt: (1) the defendant knowingly possessed or used some means of
identification—here, credit card account information, (2) the defendant knew that the
means of identification he possessed or used belonged to someone else, (3) the
defendant used or possessed this means of identification without lawful authority, and
(4) the defendant possessed or used the means of identification during and in relation
to commission of a felony offense involving fraud. See 18 U.S.C. § 1028A(a)(1), (c);
see also 18 U.S.C. § 1028(d)(7)(D) (defining a “means of identification” to include
access devices); 18 U.S.C. § 1029(e)(1) (defining “access device” to include any
“account number, electronic serial number . . . or other means of account access that
can be used . . . to obtain money, goods, services, or any other thing of value”).
During the three-day trial, several Government witnesses explained that police found
more than 200 counterfeit access devices in Rojas’s storage locker, including a
counterfeit credit card that bore the account information of the victim who had
reported fraud to the police on November 6. Witnesses also identified Rojas as the
man in the video who made the fraudulent purchases at the Storm Lake Walmart
using the victims’ information on September 13 and November 6.

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        Circumstantial evidence supported the jury’s conclusion that Rojas acted with
the requisite intent. See United States v. Hudson, 717 F.2d 1211, 1213 (8th Cir.
1983) (explaining that intent may be proven with circumstantial evidence). For
example, the jury heard that Rojas kept the counterfeit credit cards hidden in a bag
in his locked storage locker and that many of the cards were embossed with a 16-digit
number, a credit card or bank logo, and Rojas’s name, even though the cards’
magnetic strips were encoded with someone else’s account information. A Walmart
employee also testified, and store video confirmed, that Rojas had purchased several
high-value gift cards in quick succession from various registers using different credit
cards on both September 13 and November 6. These circumstances and this unusual
course of conduct supported a finding of intent. See Flores-Figueroa v. United
States, 556 U.S. 646, 656 (2009) (noting that intent “is generally not difficult to
prove” in the classic case of identity theft). Because the jury instructions accurately
reflected the elements of aggravated identity theft and because the Government
presented ample evidence to prove each of these elements, we conclude that Rojas
has failed to show a reasonable probability that, but for Special Agent Hawkins’s
testimony, the result of the proceedings would have been different. Accordingly, we
see no plain error. See Farrell, 563 F.3d at 378.

       We next turn to Rojas’s contention that the court abused its discretion by
allowing the Government to impeach his testimony with the credit and debit cards
found in his wallet and with the rebuttal testimony of Special Agent Hawkins. This
court “review[s] evidentiary rulings of a district court for abuse of discretion, giving
substantial deference to the district court’s determinations.” United States v.
Manning, 738 F.3d 937, 942 (8th Cir. 2014) (internal citations omitted). We “reverse
only if an error ‘affects the substantial rights of the defendant’ or has ‘more than a
slight influence on the [jury’s] verdict.’” Id. (alteration in original) (quoting United
States v. Yarrington, 634 F.3d 440, 447 (8th Cir. 2011)).




                                          -6-
       Rojas notes that the cards recovered from his wallet had been suppressed by
the trial court and that none of his charges stemmed from their possession. He thus
contends that the introduction of this evidence violated Federal Rule of Evidence 608,
a rule stating that extrinsic evidence is not admissible to prove specific instances of
a witness’s conduct in order to attack or support the witness’s character for
truthfulness. This argument misconstrues the rule’s purpose and application. The
advisory committee notes to Rule 608(b) indicate that the prohibition on extrinsic
evidence applies only when the sole reason for proffering that evidence is to “show
that the witness has done things, unrelated to the suit being tried, that make him more
or less believable per se.” Fed. R. Evid. 608 advisory committee’s note to 2003
amendment (quoting United States v. Fusco, 748 F.2d 996, 998 (5th Cir. 1984)). The
rule does not address the admissibility of extrinsic evidence used to impeach a
witness through bias, lack of competency, or contradiction. Id. And here, the
Government introduced the cards only to impeach Rojas’s claims that he did not have
criminal intent and that he did not understand the difference between gift cards and
credit cards.

       During cross examination, the Government used the cards found in Rojas’s
wallet to explore Rojas’s understanding of credit cards generally, inquiring as to how
he had applied for his legitimate cards and which banks had issued them to him.
When confronted with this evidence, Rojas admitted that he had applied for one card
in each pair. Special Agent Hawkins, in his rebuttal testimony, then confirmed that
only one card in each pair was authentic, while the second had been encoded with an
account number that did not belong to Rojas. To ensure the jury considered this
evidence only to impeach Rojas’s testimony and not as an independent basis for its
verdict or proof of Rojas’s general character for truthfulness, the court instructed the
jury that the cards should be considered solely for the limited purpose of
impeachment, i.e., to help the jury determine whether Rojas had told the truth when
he said he did not understand credit cards and that he lacked criminal intent when he
made the fraudulent purchases at the Storm Lake Walmart in September and

                                          -7-
November 2013. Indeed, the court warned the jury that the extrinsic evidence was
“not admissible to show that [Rojas] [wa]s guilty of any charges against him.”
Because the Government used the evidence for the limited purpose of impeachment
and because the court gave this instruction, we find that the court did not abuse its
discretion by admitting the challenged evidence. See Walder v. United States, 201
F.2d 715, 717 (8th Cir. 1953), aff’d, 347 U.S. 62 (1954) (holding that evidence
obtained in an illegal search was admissible because “the evidence was introduced
for the sole purpose of impeaching the credibility of the appellant, and the court was
meticulous in protecting his rights by instructions limiting the consideration of the
evidence to the one point for which it was admitted”).

       We see no merit to Rojas’s related argument that admission of the cards and
Agent Hawkins’s rebuttal testimony violated Federal Rule of Evidence 403. As
discussed above, the evidence was relevant to contradict Rojas’s claims of
misunderstanding and lack of criminal intent. We afford great deference to a trial
judge’s weighing of probative value against prejudicial effect under Rule 403. See
Lucas v. Jerusalem Cafe, LLC, 721 F.3d 927, 939 (8th Cir. 2013). In light of this
deference and the court’s limiting instruction reminding the jury not to convict on the
basis of this evidence, we see no abuse of discretion. See United States v. Ellison,
616 F.3d 829, 834 (8th Cir. 2010) (approving admission of evidence in part because
the court limited the scope of the evidence to the issue of impeachment).

       Finally, we dismiss in short order Rojas’s contention that admission of the
credit and debit cards found in his wallet ran afoul of the court’s pretrial decision to
suppress the evidence. This argument ignores the well established rule that “illegally
seized evidence, even if otherwise inadmissible, may be used to impeach a testifying
defendant.” United States v. Rowley, 975 F.2d 1357, 1361 (8th Cir. 1992). As the
Supreme Court stated in Walder, 347 U.S. at 65:




                                          -8-
It is one thing to say that the Government cannot make an affirmative
use of evidence unlawfully obtained. It is quite another to say that the
defendant can turn the illegal method by which evidence in the
Government’s possession was obtained to his own advantage, and
provide himself with a shield against contradiction of his untruths. Such
an extension of the [exclusionary] doctrine would be a perversion of the
Fourth Amendment.

                                  III.

For the foregoing reasons, we affirm.
                ______________________________




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