                 United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 15-3449
                         ___________________________

                              United States of America

                        lllllllllllllllllllll Plaintiff - Appellee

                                           v.

                         Jose Miguel Machorro-Xochicale

                       lllllllllllllllllllll Defendant - Appellant
                                       ____________

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

                          Submitted: September 23, 2016
                             Filed: October 27, 2016
                                 ____________

Before LOKEN, GRUENDER, and BENTON, Circuit Judges.
                          ____________

GRUENDER, Circuit Judge.

       A jury 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 court1 abused its discretion when
it prevented him from cross-examining a witness about and arguing selective
prosecution at trial. We affirm.

      On 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 identification documents.

      Mehmert 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.

      A short 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


      1
       The Honorable Michael J. Melloy, United States Circuit Judge for the Eighth
Circuit, sitting by designation.

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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.

        Immigration 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.

       Machorro-Xochicale 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.

       Machorro-Xochicale 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

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guilty on both counts. Machorro-Xochicale was sentenced to 126 days’
imprisonment and a one-year term of supervised release.

       We 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.

       To 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).




                                         -4-
       Machorro-Xochicale 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 court—to decide what conclusions should be
drawn from evidence admitted at trial.” Ellis, 817 F.3d at 573 (quotations omitted).

      Second, Machorro-Xochicale contends there is insufficient evidence that he
possessed the requisite intent for both crimes. He alleges that because he did not
understand English, the Government cannot prove intent. Additionally, he argues that
because his Form I-9 was incomplete and because he marked the non-citizen national
box incorrectly, the evidence just shows that he was confused. Both arguments are
without merit.

       Even if Machorro-Xochicale could not read the Form I-9, there is still ample
evidence—such as his own statements to Agent Moore—demonstrating that he
knowingly used forged identification documents and that he knew they were forged.2
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 fraudulent documents to
obtain employment. Thus, this is not a case where “no reasonable jury could have


      2
       Machorro-Xochicale also argues that these statements were made under
coercive circumstances and should be given little weight because Agent Moore and
his partner possessed holstered firearms while questioning him. We reject this
argument. Agent Moore read Machorro-Xochicale his Miranda rights. Machorro-
Xochicale then voluntarily waived his rights when he acknowledged that he
understood the Miranda warnings and voluntarily answered Agent Moore’s
questions.

                                         -5-
found the defendant guilty.” See id. Accordingly, viewing the evidence in the light
most favorable to the verdict, there is sufficient evidence to support the jury’s guilty
verdict for unlawful use of identification documents and misuse of a social security
account number.

        Finally, Machorro-Xochicale contends that the district court abused its
discretion in excluding testimony and argument related to his selective-prosecution
defense. Machorro-Xochicale alleges that the Government’s decision not to
prosecute Mehmert for his failure to sign the Form I-9 demonstrates that Machorro-
Xochicale was selectively prosecuted based on his race or nationality. He sought to
elicit testimony during cross-examination and to argue the defense during closing
arguments.

      “We review a district court’s evidentiary rulings for abuse of discretion,
including those regarding the scope of cross examination.” United States v. Gordon,
510 F.3d 811, 816 (8th Cir. 2007). “This court reviews rulings on the conduct of
closing arguments for abuse of discretion.” United States v. Martin, 391 F.3d 949,
956 (8th Cir. 2004). The district court properly excluded this testimony and any
argument on selective prosecution.

        Machorro-Xochicale first raised this defense at trial. However, a claim of
selective prosecution “must be raised by pretrial motion if the basis for the motion is
then reasonably available and the motion can be determined without a trial on the
merits.” Fed. R. Crim. P. 12(b)(3)(A)(iv); see also United States v. Huber, 404 F.3d
1047, 1054 (8th Cir. 2005) (“A selective-prosecution claim . . . must be raised before
trial . . . . Otherwise, it is waived.”) (quotations omitted). Machorro-Xochicale
presented no explanation or excuse for his failure to present this argument before
trial, and thus, we conclude that Machorro-Xochicale waived his selective
prosecution defense. See United States v. Salahuddin, 765 F.3d 329, 350 (3d Cir.
2014), cert. denied, 135 S. Ct. 2309 (2015). Because he waived this defense, the

                                          -6-
district court did not abuse its discretion in refusing to admit such evidence. See
United States v. Regan, 103 F.3d 1072, 1082 (2d Cir. 1997) (“[T]he selective
prosecution defense is an issue for the court rather than the jury.”) (quotations
omitted); United States v. Washington, 705 F.2d 489, 495 (D.C. Cir. 1983) (“[T]he
issue of selective prosecution is one to be determined by the court . . . as it relates to
an issue of law entirely independent of the ultimate issue of whether the defendant
actually committed the crimes for which she was charged.”).

      For the foregoing reasons, we affirm.
                      ______________________________




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