                                                                      FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                                                  April 13, 2010
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                  Clerk of Court
                            FOR THE TENTH CIRCUIT


    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,
                                                        No. 09-2129
    v.                                        (D.C. No. 1:08-CR-00375-LH-1)
                                                         (D. N.M.)
    TERESA GRAJEDA-GUTIERREZ,

                Defendant-Appellant.


                            ORDER AND JUDGMENT *


Before KELLY, BALDOCK, and HOLMES, Circuit Judges.



         Defendant Teresa Grajeda-Gutierrez was convicted by a jury of fraud and

misuse of visas, permits, and other documents in violation of 18 U.S.C. § 1546(a),

and aggravated identity theft in violation of 18 U.S.C. §§ 1028A(a)(1) and (c)(4).

She had moved for a judgment of acquittal at the close of all of the evidence, but

the district court denied the motion and subsequently sentenced her to



*
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
four-hundred and nineteen days’ imprisonment. On appeal, she essentially asserts

that the evidence was insufficient to support either conviction.

      Exercising jurisdiction under 28 U.S.C. § 1291, we AFFIRM

Ms. Grajeda-Gutierrez’s conviction for fraud and misuse of visas, permits, and

other documents because there was sufficient evidence to support it. But we

REVERSE her conviction for aggravated identity theft because the government

did not prove beyond a reasonable doubt that she “knew that the means of

identification [she used] belonged to another person,” as required by

Flores-Figueroa v. United States, 129 S.Ct. 1886, 1894 (2009) (interpreting

18 U.S.C. § 1028A).

                                   Background 1

      The parties are familiar with the procedural history and trial testimony in

this case, and we therefore provide an abbreviated summary here. In

September 2005, Ms. Grajeda-Gutierrez entered the United States through

Columbus, New Mexico, with a B-2 tourist visa. Shortly thereafter, she applied

for a job at Walmart in Santa Fe, New Mexico, and allegedly signed—under

penalty of perjury—an employment-eligibility verification form, Form I-9, as

“‘Diana CH,’” R., Vol. 3 at 39. A Training Coordinator at the Walmart in


1
       Because this appeal arises from a jury verdict, “we must view all evidence
in the light most favorable to the government,” and we therefore “present the
facts that follow in that light.” United States v. Roach, 582 F.3d 1192, 1198 n.2
(10th Cir. 2009), cert. denied, 130 S.Ct. 1160 (2010).

                                         -2-
question, Conchita Van De Star, testified that she knew Ms. Grajeda-Gutierrez as

“Diana Chavez,” and had conducted an employee orientation class in October

2005 that she had attended. Id. at 64, 65. According to the Training Coordinator,

she was with Ms. Grajeda-Gutierrez, who is fluent in English, when she

completed her Form I-9. She stated that Ms. Grajeda-Gutierrez supported her

Form I-9 with a permanent resident alien card and a driver’s license, both of

which contained the name Diana Chavez and Ms. Grajeda-Gutierrez’s photograph.

She also testified that during the October orientation she instructed

Ms. Grajeda-Gutierrez and other prospective employees that the Form I-9 was a

legal document that needed to be completed correctly.

      The Bureau of Immigration and Customs Enforcement (ICE) received a tip

that a woman was working at Walmart in Santa Fe using the assumed identity of a

Diana Chavez. ICE Agent Morgan Langer testified that he went to that Walmart

and asked the personnel manager if there was a Diana Chavez working at the

store. She “responded that there was,” and gave Agent Langer “a copy of the

Form I-9 that was filled out by Diana Chavez . . . . on October 13, 2005.” Id. at

22-23. 2 Agent Langer also inquired whether Ms. Chavez was working. A

colleague said she was and “pointed to the defendant.” Id. at 27. Agent Langer


2
      Agent Langer later researched the alien number listed on the Form I-9 and
determined it was “invalid”; that is, the number is “not assigned to anybody.”
R., Vol. 3 at 44. He also confirmed through ICE records that
Ms. Grajeda-Gutierrez is not a resident alien.

                                         -3-
identified himself as an ICE Agent and Ms. Grajeda-Gutierrez told him her name

was Diana Chavez. After additional questioning, she “eventually admitted . . .

her [real] name was Teresa Grajeda-Gutierrez” and she was “a citizen . . . of

Mexico” illegally present in the United States. Id. at 28, 29. She was arrested

and searched incident to the arrest. Agent Langer found in her possession three

items that bore the name Diana Chavez: a Walmart pay stub, a Walmart ID tag

(that she was wearing when he encountered her), and a Walmart employee

discount card. He also found two items that bore the name Teresa

Grajeda-Gutierrez: an ATM card and a driver’s license.

       The alleged identity theft victim, Diana Chavez, testified that she lived in

Santa Fe, New Mexico, had never worked at Walmart, and is a United States

citizen. She testified that the social security number listed on the Form I-9, dated

October 13, 2005, belonged to her. She stated that she did not know

Ms. Grajeda-Gutierrez and indicated that she had never “given anyone permission

to use [her] identity, . . . Social Security number, . . . birth date, or any other

identifiers of [hers].” Id. at 99.

       Evidence was introduced at trial that other documents in Walmart’s

personnel file for Diana Chavez were signed “‘Diana CH’” Id. at 39, 40. Agent

Langer, who is not a handwriting expert, testified that the signatures on the

personnel documents resembled the signature on the October 13, 2005, Form I-9.




                                            -4-
There was also testimony that during the time in question, only one Diana Chavez

worked at Walmart in Santa Fe.

      Ms. Grajeda-Gutierrez was charged with (1) “knowingly subscrib[ing] as

true . . . in a document required by the immigration laws and regulations of the

United States . . . a name and social security number that were not hers and

attest[ing] falsely under penalty of perjury that she was a legal permanent resident

of the United States,” in violation of 18 U.S.C. § 1546(a), and (2) knowingly

using, “without lawful authority, a means of identification of another person

during and in relation to a violation of . . . § 1546(a)[,]” in violation of 18 U.S.C.

§§ 1028A(a)(1) and (c)(4). Id., Vol. 1 at 6-7. At the conclusion of

Ms. Grajeda-Gutierrez’s trial, she was found guilty of the charged offenses. This

appeal followed.

                                      Discussion

      Ms. Grajeda-Gutierrez contends her conviction for fraud and misuse of

visas, permits, and other documents must be reversed because there was

insufficient evidence to support the jury’s verdict. 3 Noting the lack of “eye

witness testimony,” she asserts that the government failed to demonstrate “that



3
       To support a conviction under § 1546(a) the government must show, in
pertinent part, that the defendant: (1) “knowingly,” (2) “under oath” or “under
penalty of perjury,” (3) made a “false statement,” (4) concerning “a material
fact,” (5) “in any application . . . or other document required by the immigration
laws or regulations prescribed thereunder.”

                                          -5-
the I-9 and other personnel documents were signed by the Defendant.” Aplt. Br.

at 18. “We review the sufficiency of the evidence to support a jury’s verdict and

the denial of [a] motion for judgment of acquittal de novo.” United States v.

Vigil, 523 F.3d 1258, 1262 (10th Cir. 2008). The problem with

Ms. Grajeda-Gutierrez’s argument is that it has already been made to, and

rejected by, the jury. See, e.g., R., Vol. 3 at 142. As framed by the government,

the jury apparently relied on circumstantial evidence to conclude that “[i]t is not

plausible that . . . someone else signed the . . . I-9 Form.” Aplee. Br. at 18. We

cannot re-weigh the evidence or second-guess the jury’s determination. We

“ask[] only whether, taking the evidence—both direct and circumstantial, together

with the reasonable inferences to be drawn therefrom—in the light most favorable

to the government, a reasonable jury could find the defendant guilty beyond a

reasonable doubt.” Roach, 582 F.3d at 1205 (emphasis added) (quotation

omitted). The evidence here was sufficient for a reasonable jury to do just that.

See United States v. Burkley, 513 F.3d 1183, 1188 (10th Cir. 2008) (explaining

that the evidence supporting a jury verdict “must be substantial,” but “it need not

conclusively exclude every other reasonable hypothesis and it need not negate all

possibilities except guilt” (quotation omitted)).

      Ms. Grajeda-Gutierrez also contends that her conviction for aggravated

identity theft must be reversed because the government did not show that she

knew “that the means of identification at issue belonged to another person,” as

                                         -6-
required by Flores-Figueroa, 129 S.Ct. at 1894. We agree. Indeed, the

government acknowledges that Flores-Figueroa, which was decided after

Ms. Grajeda-Gutierrez was convicted, is retroactively applicable, and it “concedes

that there was insufficient evidence for the jury to conclude beyond a reasonable

doubt that Grajeda knew that the social security number and name she was using

belonged to a real person at the time when [she] committed the predicate felony

charged in the indictment . . . .” Aplee. Br. at 13.

                                     Conclusion

      For the reasons stated above, we AFFIRM Ms. Grajeda-Gutierrez’s

conviction for fraud and misuse of visas, permits, and other documents, but we

REVERSE her aggravated identity theft conviction and REMAND for proceedings

consistent with this opinion.



                                                       Entered for the Court



                                                       Bobby R. Baldock
                                                       Circuit Judge




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