                              NOT RECOMMENDED FOR PUBLICATION
                                      File Name: 14a0479n.06

                                                     No. 13-5365

                                 UNITED STATES COURT OF APPEALS
                                      FOR THE SIXTH CIRCUIT

                                                                                                      FILED
UNITED STATES OF AMERICA,                                     )                                Jul 03, 2014
                                                              )                           DEBORAH S. HUNT, Clerk
           Plaintiff-Appellee,                                )
                                                              )
v.                                                            )    ON APPEAL FROM THE UNITED
                                                              )    STATES DISTRICT COURT FOR THE
                                                              )    EASTERN DISTRICT OF KENTUCKY
ONOFRE GIL CARRANZA,                                          )
                                                              )
           Defendant-Appellant.                               )



Before: BOGGS and KETHLEDGE, Circuit Judges, and RESTANI, Judge.*


           BOGGS, Circuit Judge. Onofre Gil Carranza was convicted by a jury of 1) knowingly

making a false claim of United States citizenship with the intent to engage unlawfully in

employment in the United States, in violation of 18 U.S.C. § 1015(e), and 2) falsely and willfully

representing himself to be a citizen of the United States, in violation of 18 U.S.C. § 911. He was

sentenced to time served. Carranza raises two claims on appeal. First, he argues that the district

court abused its discretion in permitting the introduction into evidence of a written Form I-9

indicating that Carranza had lied about his citizenship while seeking employment in the past.

Second, he argues that the evidence at trial was insufficient to support the jury’s verdict because

it did not show that he knowingly or willfully represented himself to be a United States citizen.

We affirm.


*
    The Honorable Jane A. Restani, Judge of the United States Court of International Trade, sitting by designation.
                                                 I

        Carranza was brought to the United States by his parents when he was six years old. He

grew up in this country, although he was not authorized to be here. In 2004, when he was around

eighteen years old, he petitioned to have his “status changed,” presumably to that of a citizen or

lawful permanent resident of the United States.         Although his application was denied, the

decision denying it was withdrawn on appeal, and his application was still pending at the time of

this trial, around eight years later.

        On October 29, 2011, Carranza applied for a job at Advanced Auto Parts in Georgetown,

Kentucky.     The application process required him to fill out an Employment Eligibility

Verification Form I-9 on a computer, which he did. That form includes a “Citizenship and

Employment Verification” section, which states, “I attest, under penalty of perjury, that I am:

_______,” and prompts the applicant to select from among four options: 1) a citizen of the

United States, 2) a non-citizen national of the United States, 3) a lawful Permanent Resident, or

4) an alien authorized to work. Each option has a button next to it allowing the user to select that

option. Testimony at trial indicated that the first option, for United States citizenship, was

initially selected by default, but that the user had the ability to select one of the other options

instead. Below the verification section is an “Accept” button, next to which the following

statement appears: “I am aware that federal law provides for imprisonment and/or fines for false

statements or use of false documents in connection with the completion of this form.” On the

completed form that Carranza submitted, the button next to the first option was selected,

indicating that Carranza was a United States citizen.

        Earlier in 2011, Carranaza had filled out a printed Form I-9 by hand when he applied for

a job at Custom Staffing in Chicago. That form included an “Employment Information and



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Verification” section virtually identical to that on the digital Form I-9 described above, except

that no option was selected by default. The checkbox next to the first option was marked,

indicating that Carranza was a United States citizen, and next to it was an admonition about the

penalties for making false statements, identical to that on the digital form. Below the admonition

was a line, underneath which appear the words “Employee’s Signature,” followed by additional

space and another line. Carranza’s alleged signature appeared above both the first and second

lines, with a line struck through the top signature but not the one below it.

       On August 16, 2012, police stopped Carranza for a traffic violation and arrested him after

he admitted that he was not a United States citizen and had no documentation proving that he

was authorized to be in the United States. This prosecution followed.

                                                 II

       The district court allowed the government to introduce the written Form I-9 at trial

pursuant to Federal Rule of Evidence 404(b). Under Rule 404(b), evidence of a defendant’s

prior bad acts may not be admitted to prove his character and to infer therefrom that he likely

acted consistent with that character on another occasion. Nevertheless, such evidence “may be

admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan,

knowledge, identity, absence of mistake, or lack of accident.” Fed. R. Evid. 404(b)(2). For the

evidence to be admitted, the district court must find 1) that the prior bad act occurred, 2) that the

evidence would serve one of the legitimate purposes identified in Rule 404(b)(2), and 3) that the

probative value of the evidence was not substantially outweighed by its prejudicial effect.

United States v. Adams, 722 F.3d 788, 810 (6th Cir. 2013). The court found that Carranza had in

fact completed and signed the written Form I-9. It further found “that the handwritten I-9 is

probative to show knowledge of the I-9 form and the requirement to verify under penalty of



                                                  3
perjury the applicant’s status . . . . It is also probative on the issues of intent, absence of mistake,

or lack of accident.” Finally, the court determined that the probative value of the evidence was

not substantially outweighed by the danger of unfair prejudice to the defendant.

        “In reviewing a district court’s decision to admit evidence of other crimes, wrongs, or

acts under Rule 404(b), we first review for clear error the district court’s factual determination

that the other acts occurred.” United States v. Merriweather, 78 F.3d 1070, 1074 (6th Cir. 1996)

(internal quotation and alteration marks omitted). “Second, we examine de novo the district

court’s legal determination that the evidence was admissible for a legitimate purpose.” Id.

(italics omitted). “Finally, we review for abuse of discretion the district court’s determination

that the probative value of the other acts evidence is not substantially outweighed by its unfairly

prejudicial effect.” Id.

        The district court concluded that Carranza had completed and signed the written Form I-9

by comparing the signature on Carranza’s Social Security card with that on the top line of the

Form I-9 and finding that the two were “the same.” The court also noted that Carranza’s

application was accompanied by a copy of his Social Security card and his Illinois photo ID.

        The district court’s factual determination was not clearly erroneous. The first signature

on the form and that on Carranza’s Social Security card appear to match, and the Form I-9 was

accompanied by other documentation supporting the inference that the signature was Carranza’s.

Although the top signature was crossed out, it was perfectly legible. On appeal, Carranza cites

the testimony of Idania Stack, owner of Custom Staffing, that, to her eye, the bottom signature

looked different from the top one. See Appellant’s Br. at 11; Appellee’s Br. at 7–8. It is

certainly plausible that Carranza, realizing that the appropriate place for his signature was below

the first line and not above it, crossed out the signature above and signed again below.



                                                   4
Regardless, even if the bottom signature were not Carranza’s, there is no basis in the record for

disputing the authenticity of the top signature, which Stack testified would have been sufficient

for his application to have been accepted. Carranza offers no explanation for how his signature

might have ended up on the Form I-9 accompanying his job application (including a copy of his

Social Security card and photo ID) without his authorization, whether his true signature appeared

once or twice. The district court did not clearly err in finding that Carranza had completed and

signed the written Form I-9.

       The second step in reviewing the admission of Rule 404(b) evidence is to determine

whether the evidence was admissible for a legitimate purpose. The district court correctly found

that the written Form I-9 was probative of Carranza’s “knowledge of,” or familiarity with, the

form and its inquiry with respect to the applicant’s citizenship. It also correctly determined that

the form was properly admissible to show Carranza’s “intent” to affirmatively indicate

citizenship on the form, and the fact that his having done so was neither an accident nor a

mistake. “To determine if evidence of other acts is probative of intent, we look to whether the

evidence relates to conduct that is substantially similar and reasonably near in time to the

specific intent offense at issue.” United States v. Haywood, 280 F.3d 715, 721 (6th Cir. 2002)

(internal quotation marks omitted). As the district court found, here, the two acts in question are

virtually identical, as both “involve the making of a false claim of United States citizenship on an

I-9 form during the process of applying for employment.” They are also near in time, as the first

occurred on May 27, 2011, and the one charged in the indictment occurred on October 29, 2011,

five months later. Carranza argues that “it seems erroneous to hold that actively checking a box

on a written form that states a person is claiming to be a U.S. citizen is probative a [sic]

becoming a U.S. citizen via a computer program that defaults to and auto populates [sic] U.S.



                                                 5
citizen if one does nothing.” Appellant’s Br. at 10. His point is not well taken. Although a

written form is written and a digital one is digital, that difference is not enough to render the two

acts in question substantively dissimilar, despite the caveat that only the digital form had a

default option. “Probative” does not mean dispositive; it means “tending to prove or disprove.”

BLACK’S LAW DICTIONARY 1240 (8th ed. 2004). The question here is whether the option for

United States citizenship on the digital form was selected intentionally or left that way by

accident. We have held that, “where there is thrust upon the government, either by virtue of the

defense raised by the defendant or by virtue of the elements of the crime charged, the affirmative

duty to prove that the underlying prohibited act was done with a specific criminal intent, other

acts evidence may be introduced under Rule 404(b).” United States v. Johnson, 27 F.3d 1186,

1192 (6th Cir. 1994). As an example, “[t]his court has repeatedly recognized that prior drug-

distribution evidence is admissible under Rule 404(b) to show intent to distribute.” United States

v. Hardy, 643 F.3d 143, 151 (6th Cir. 2011) (internal quotation and alteration marks omitted).

All else equal, the fact that Carranza had affirmatively indicated that he was a citizen in the

recent past makes it more likely that his selection on the digital form was intentional.

       Finally, we review for abuse of discretion the district court’s determination that the

probative value of the evidence was not substantially outweighed by its unfairly prejudicial

effect. Carranza argues that he was “severely prejudiced” because “without this evidence a

verdict of guilty would have been extremely unlikely.” Appellant’s Br. at 12. But Carranza

misunderstands the kind of prejudice at issue here. There can be little doubt that the admission

of the written Form I-9 into evidence was highly influential to the jury’s finding of guilt. But the

question is not whether the evidence would be held against Carranza; it is whether it would be

held against him unfairly by “lur[ing] the factfinder into declaring guilt on a ground different



                                                 6
from proof specific to the offense charged.” Old Chief v. United States, 519 U.S. 172, 180

(1997). Although a prior act may not be used to prove a defendant’s character and that he acted

in conformity therewith, it may be used to show “motive, opportunity, intent, preparation, plan,

knowledge, identity, absence of mistake, or lack of accident.” Fed. R. Evid. 404(b). The line

between these two categories is often difficult to draw. For example, saying, “Carranza lied

about his citizenship in the past so he probably intended to lie here,” would appear to violate the

prohibition against using prior bad acts as character evidence, yet at the same time qualify for the

exception to prove intent and lack of accident or mistake. It is perhaps more accurate to say that

evidence of intent based on a prior bad act is admissible despite the fact that it may also speak to

a defendant’s character, provided its probative value is not substantially outweighed by its

prejudicial effect.

        The probative value of the written Form I-9 was great. In completing that form, Carranza

committed an act that was close in time and nearly identical to the offense with which he was

charged. The written form also played a significant role in the government’s case. One factor

we consider in balancing probative value against prejudice is the availability of other proof.

Hardy, 643 F.3d at 153. Here, Carranza’s intent was in issue, and no other proof of intent was

available aside from whatever the jury might glean from the fact that the digital form was

submitted as it was. We also consider limiting instructions to the jury, and here, the district court

instructed the jury not to consider the prior act for anything other than knowledge, intent, and

absence of accident or mistake. See id. To be sure, the admission of the form was also

prejudicial: “When jurors hear that a defendant has on earlier occasions committed essentially

the same crime as that for which he is on trial, the information unquestionably has a powerful

and prejudicial impact.”     Johnson, 27 F.3d at 1193.        But the prejudicial effect—and, in



                                                 7
particular, the unfairly prejudicial effect—of admitting the written Form I-9 did not substantially

outweigh its probative value. Just as prior convictions for possession with intent to distribute are

generally admissible to show such intent in a subsequent case, Carranza’s prior false statement

about his citizenship in connection with seeking employment was admissible to show his intent

to make a false statement here. We hold that the district court did not abuse its discretion in

determining that the prejudicial impact of the evidence did not substantially outweigh its

probative value.

                                                III

       Carranza’s second claim is that the evidence at trial was insufficient to support the

judgment against him because the government failed to prove that he “intentionally and falsely

claimed to be a U.S. citizen.” Appellant’s Br. at 17.

       To determine whether the evidence was sufficient, “the relevant question is whether, after

viewing the evidence in the light most favorable to the prosecution, any rational trier of fact

could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v.

Virginia, 443 U.S. 307, 319 (1979) (emphasis in original). “Circumstantial evidence alone can

meet this burden.” United States v. Washington, 702 F.3d 886, 891 (6th Cir. 2012), cert. denied,

133 S. Ct. 2041 (2013). “All reasonable inferences and resolutions of credibility are made in the

jury’s favor.” Id.

       Carranza points to numerous pieces of evidence at trial that were favorable to him,

including testimony that the form defaulted to the option for a United States citizen, that

individuals sometimes do not read the entire form before clicking “Accept,” that no one watched

Carranza complete the form, and that Carranza admitted to the law-enforcement officers who

stopped him for the traffic violation that he was not a United States citizen. But the question is



                                                 8
not whether the jury could have found in favor of the defendant; rather, it is whether no rational

juror could not have done so. There was ample evidence to support the jury’s verdict, including

the fact that the digital form that Carranza submitted had the option for United States citizen

selected, that a clear statement next to the “Accept” button warned him about the penalties for

making false statements on the form, and that he had intentionally declared his citizenship on a

Form I-9 while seeking employment five months earlier. The jury was free to credit Carranza’s

counsel’s argument that Carranza did not realize that the option for a United States citizen had

been selected on the digital form, but apparently it chose not to do so. That is the jury’s

prerogative. Drawing all inferences and credibility determinations in favor of the jury’s verdict,

we hold that the evidence was sufficient to support a finding of guilt.

                                                IV

       The judgment of the district court is AFFIRMED.




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