     Case: 17-20230   Document: 00514610328        Page: 1   Date Filed: 08/21/2018




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                   United States Court of Appeals
                                                                            Fifth Circuit

                                                                          FILED
                                    No. 17-20230                    August 21, 2018
                                                                     Lyle W. Cayce
UNITED STATES OF AMERICA,                                                 Clerk


             Plaintiff - Appellee

v.

ISRAEL ARQUIMIDES MARTINEZ,

             Defendant - Appellant



                Appeal from the United States District Court
                     for the Southern District of Texas


Before STEWART, Chief Judge, and JONES and ENGELHARDT, Circuit
Judges.

CARL E. STEWART, Chief Judge:
      After a months-long investigation into hiring practices at Waste
Management Incorporated (“WMI”), the Government charged Defendant-
Appellant Israel Arguimides Martinez and several co-defendants with various
immigration crimes stemming from their participation in efforts to recruit and
retain undocumented immigrants for employment at WMI in Houston, Texas.
Martinez was later also charged by Superseding Indictment with several
counts of identity-theft stemming from the same underlying scheme. After a
nine-day jury trial, Martinez was convicted of all 18 counts charged in the
Superseding Indictment and was sentenced to 87 months of imprisonment and
three years of supervised release. He now challenges the sufficiency of the
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                                     No. 17-20230
evidence supporting his conviction, arguing primarily that he was never
involved in the scheme giving rise to his charges. Because the Government
presented sufficient evidence to support the jury’s guilty verdict, we AFFIRM.
                                I.     BACKGROUND
      WMI is a waste disposal and environmental services company
headquartered in Houston, Texas. WMI maintained a facility on Afton Road in
Houston (“Afton Road location”) where employees held various positions,
including those of “helpers,” 1 drivers, commercial route managers, technicians,
maintainers, welders, hazardous material experts, and landfill gas operators.
Martinez worked as the residential operations lead driver for WMI for several
years leading up to his arrest.
      WMI hired its employees through Associated Marine and Industrial
Staffing Company (“AMI”), a staffing and payroll services company contracted
by WMI to provide part-time employees. Mary Louise Flores (“Flores”) and
Fernando Emmanuel Bustos (“Bustos”) were on-site supervisors for AMI at
WMI’s Afton Road location. Flores had worked for AMI for 12 years before her
arrest, and she began working at the Afton Road location in 2011 as AMI’s
onsite representative. She held that position for 11 months.
      Applicants who sought employment at WMI would submit their
applications, in addition to an identification or resident card and a Social
Security card, through AMI. AMI was responsible for conducting employment
eligibility verification through the Department of Homeland Security’s E-
Verify/Basic Pilot Program (“E-Verify”). 2 AMI was also required to examine




      1  “Helpers” are WMI employees who ride on the back of waste disposal trucks during
trash pickup routes.
       2 E-Verify is an internet-based system that allows an employer, using information

reported on a prospective employee’s Employment Eligibility Verification Form (“I-9”), to
determine the eligibility of that employee to work in the United States.
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                                       No. 17-20230
documentation provided by prospective employees for genuineness at the time
of hire to verify their identity and employment eligibility.
      According to several trial witnesses, it was “common knowledge” at WMI
that most of the helpers were undocumented immigrants, and several of the
illegally hired helpers testified that they had used fake documents purchased
at flea markets to procure employment at WMI through AMI. In 2011, Staff
Management, an auditing company for WMI, examined and audited AMI’s
employee records and confirmed that many of the helpers staffed by AMI at
WMI were working there illegally. Flores was instructed to “clean house,” that
is, to fire all of the undocumented aliens staffed by AMI and working at WMI.
      Flores notified Cesar Arroyo Santiago (“Santiago”), WMI’s district
operations manager, of her directive, but Santiago declined to take immediate
action because WMI’s entire operations system would be negatively affected
for lack of capable, competent employees. Flores thereafter discussed the need
to “clean house” with Martinez on several occasions, and he advised that it
would be difficult to find the right people for the job. Nonetheless, AMI and
WMI began incrementally firing undocumented or illegally documented
employees.
      During a staff safety meeting on January 31, 2012, WMI employees were
told that their employment documents would be checked and, if found invalid,
they would be terminated. Santiago, Flores, Martinez, and Rudy Martinez (of
no relation, and hereinafter called “Rudy”), 3 Martinez’s supervisor, were
present at the meeting. Santiago notified the helpers that they needed to
provide the proper identification documents or else they would be fired, and
Flores joined Santiago in encouraging the helpers to find valid identification
and Social Security numbers and return to WMI. Martinez did not say


      3   Rudy and Martinez were tried together. Rudy is not a party to this appeal.
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                                 No. 17-20230
anything at the meeting. Approximately 45 WMI employees did not have valid
employment documents and were fired after the January 2012 safety meeting.
Flores and Santiago told the fired helpers that they could return to work if they
brought valid documents, even if they belonged to another person.
      Shortly after the January 2012 safety meeting, Flores and Martinez
discussed ways for illegally employed helpers to continue working at WMI.
According to Flores, Martinez suggested that they assign the identities of
former applicants and employees to the illegal helpers. Flores testified that
Martinez gathered and provided previous driver logs that included the names
of former helpers. Flores then reviewed the records to confirm whether the
former employees were still active in the AMI system, which would mean that
no further documentation would be needed. She would then reactivate the
individual’s status in AMI’s system. Martinez and Flores took the idea to
Santiago, who assented.
      Over the course of several months, Flores, Santiago, and Martinez
executed their plan by identifying former helpers, reactivating them in AMI’s
employment system, and assigning their identities to illegal helpers. According
to the Government, approximately 25 illegal aliens procured identification
documents of other persons and returned to work under different names at
WMI with the knowledge of Martinez, Flores, Rudy, and Santiago. The fired-
and-rehired helpers received unique personal identification numbers (“PINs”)
that corresponded to their new identities and were required to sign and cash
their paychecks under their new names.
      These rehired helpers included Inmer Guzman-Ventura, who testified
that Martinez instructed him to contact Flores about getting his job back.
When he was rehired, Guzman-Ventura was given several names to work
under. Another individual, Everado Gonzalez-Martinez, returned to work at
WMI under a new identity after the mass firing at Flores’s direction. After his
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                                No. 17-20230
initial new identity was revoked, Martinez instructed him to get a good, or
valid, Social Security number. After Gonzalez-Martinez got a new Social
Security number, he was instructed by Martinez to take his identification
information to Flores. The Government also produced Jose Soriano-Ventura,
who testified that Flores assigned him a new name after he was told he could
no longer work under his initially given name. Willians Campos-Lopez testified
that after the mass firing, he received a phone call from Martinez, who told
him he could return to work under the name Gabriel Alvarez and signed his
paychecks under the name Alvarez as instructed by Martinez. Campos-Lopez
also testified that shortly after the January 2012 meeting, Martinez told him
to call three or five other fired helpers and advise them to return to WMI, and
that Martinez would help them obtain new identities. Noe Baudilio-Garcia
testified that he spoke with Martinez shortly after the mass firings and was
told to speak with Flores about getting his job back. Alexander Garcia-Lopez
also stopped working at WMI because he lacked valid identification documents,
but he received a call from Martinez telling him not to worry about his job
because he would continue to work under another name. Garcia-Lopez
thereafter received a new name (Tomas Gomez) from Martinez. Jesus
Barrientos-Alvarado testified that he obtained valid documents on his own and
submitted a new, different name to Martinez who did not show any surprise
upon receiving the new documents. Finally, Jose Benitez testified that, at the
direction of Martinez, he obtained a new name on his own and submitted it to
Flores, and Martinez called him by his new name.
      The identification-reassignment scheme created some confusion among
the orchestrators and, according to Flores, she and Martinez worked closely to
keep the undocumented employees’ identities straight. The two of them even
created “cheat sheets” to keep track of their work. The “cheat sheets” changed
almost daily, and Martinez reviewed the sheets with Flores a couple of times
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                                 No. 17-20230
per week to ensure that a legitimate name was not used during the same week
by more than one helper. Flores also testified that she occasionally saw
Martinez hand rehired helpers a slip of paper with a PIN linked with another
person’s valid identification information to use for clocking in. Santiago
testified that he had witnessed Martinez encouraging illegal helpers to obtain
the identification documents of another person to continue working. Both
Flores and Santiago confirmed that Martinez had no authority to hire people
to work at AMI or WMI and that he was not in charge of screening employees.
      Other WMI employees testified about the scheme. Rose Schuler, a driver
at WMI, testified that she personally saw several fired helpers return to work,
and she was instructed by Martinez to call them by different names. She also
testified that Martinez told her WMI could not assist helpers in obtaining work
visas but suggested the helpers find people who were not using their Social
Security numbers, such as people who were in jail. Teri Minarcik, who worked
as a residential route manager at WMI, testified that she noticed that several
helpers who had been at WMI for years disappeared but returned to work with
new names. Minarcik confirmed that Martinez did not hire anyone and that
helpers were hired through AMI.
      Special Agent Eleazar Paredes, a member of the Immigration and
Customs Enforcement (“ICE”) Work-Site Enforcement Group who conducted
the investigation into WMI, was initially informed that WMI was employing
illegal immigrants by two disgruntled illegal helpers who were dissatisfied
with the working conditions at WMI and were concerned they would lose their
jobs if they did not obtain new identities. At trial, Special Agent Paredes
identified several illegal helpers recruited by AMI and WMI whom he had
interviewed and who had told him that they were encouraged to return to work
if they were able to get valid Social Security cards.


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      Federal agents executed a search warrant at WMI’s Afton Road location
on April 24, 2012. The agents discovered and arrested 16 illegal employees in
the building. Over the next several months, agents debriefed over a dozen
witnesses who had illegally worked for AMI at WMI and who stated that
although Martinez knew the AMI workers were illegally employed, he and
others repeatedly told them to obtain new, valid employment documents.
Additionally, three victims whose identities were used by illegal helpers
testified that they did not authorize anyone to use their identification
information for employment at WMI.
      At trial, Martinez moved for a judgment of acquittal twice—at the close
of the Government’s case and again at the close of the defense’s case—and was
twice denied. In its jury instructions, the district court explained to the jurors
the possibility of convicting Martinez on the theory of Pinkerton liability, that
is, that Martinez might be liable for the criminal acts of his charged and
uncharged co-conspirators, although he himself may not have personally
committed each element of each crime charged. See Pinkerton v. United States,
328 U.S. 640, 646-48 (1946). The district court also instructed the jurors on the
law applicable to aiding and abetting the commission of the substantive
offenses charged in the Superseding Indictment.
      On April 8, 2016, the jury returned a guilty verdict on all 18 counts of
the Superseding Indictment. 4 Martinez was thereafter sentenced to 87 months
of imprisonment and a three-year term of supervised release. He timely
appealed.
                                    II.    DISCUSSION
      Martinez challenges the sufficiency of the evidence supporting his
conviction of all counts, arguing that the evidence did not establish his


      4   Rudy was also convicted of all 18 counts charged in the Superseding Indictment.
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                                  No. 17-20230
knowledge of or participation in the crimes charged. Because Martinez timely
moved for a judgment of acquittal at the close of the Government’s case and
after the jury returned its verdict under Federal Rule of Criminal Procedure
29(c), his appeal is subject to de novo review. United States v. Jimenez-Elvirez,
862 F.3d 527, 533 (5th Cir. 2017). Martinez’s sufficiency-of-the-evidence
challenges are evaluated “with substantial deference to the jury verdict.”
United States v. Delgado, 672 F.3d 320, 330 (5th Cir. 2012) (en banc). Thus, we
will affirm “if a reasonable juror could conclude that the elements of the crime
were established beyond a reasonable doubt.” United States v. Evans, 892 F.3d
692, 702 (5th Cir. 2018). The court must “view[] the evidence in the light most
favorable to the verdict” and draw “all reasonable inferences from the evidence
to support the verdict.” United States v. McDowell, 498 F.3d 308, 312 (5th Cir.
2007) (quoting United States v. Ragsdale, 426 F.3d 765, 770–71 (5th Cir.
2005)).
   A. Conspiring to Hire and Hiring Illegal Helpers
      Counts One and Two of the Superseding Indictment charge Martinez
with conspiring to hire ten or more undocumented aliens and the underlying
substantive offense. To prove Martinez’s guilt for the conspiracy charge, the
Government was required to establish beyond a reasonable doubt (1) the
existence of an agreement between two or more persons to pursue an unlawful
objective (here, to hire undocumented aliens), (2) that Martinez knew of the
conspiracy and intended to and did join it, and (3) that one of the members of
the conspiracy performed an overt act in furtherance of the conspiracy. United
States v. Read, 710 F.3d 219, 226 (5th Cir. 2012) (per curiam); see also 18 U.S.C.
§ 371. An express or explicit agreement is not required; “a tacit agreement is
enough.” United States v. Shoemaker, 746 F.3d 614, 623 (5th Cir. 2014)
(quoting United States v. Westbrook, 119 F.3d 1176, 1189 (5th Cir. 1997)
(internal quotation marks omitted)). Evidence of a conspiracy and a
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                                        No. 17-20230
defendant’s participation in it may be circumstantial, and a jury may infer that
a conspiracy exists based on “the presence, association, and concerted action of
the defendant with others.” United States v. Curtis, 635 F.3d 704, 719 (5th Cir.
2011) (internal quotation marks and citation omitted). Mere association with
a co-conspirator alone does not support an inference of participation in a
conspiracy. United States v. Welch, 656 F.2d 1039, 1055 (5th Cir. 1981).
Uncorroborated testimony from an accomplice or a cooperating witness may
support a conviction so long as the testimony is not incredible or otherwise
facially insubstantial. Shoemaker, 746 F.3d at 623. Testimony is not incredible
“unless it pertains to matters that the witness physically could not have
observed or events that could not have occurred under the laws of nature.” Id.
(internal quotation marks and citation omitted).
       To find Martinez guilty of unlawfully employing ten or more
unauthorized aliens, the Government was required to prove that, during the
period of the conspiracy, Martinez knowingly hired at least ten persons with
actual knowledge that they were unauthorized aliens and that they were
brought to the United States in violation of 8 U.S.C. § 1324(a). 5 See 8 U.S.C. §
1324(a)(3)(A). To prove that Martinez aided and abetted the commission of that




       5 The governing statute’s definition of “alien” carries with it complexities and nuances
that this circuit has not previously had the opportunity to flesh out. 8 U.S.C. § 1324(a)(3)(A)
criminalizes hiring for employment at least ten individuals with actual knowledge that the
individuals are aliens as described in subparagraph B. Subparagraph B goes on to define an
“alien” as one “who . . . (i) is an unauthorized alien (as defined in section 1324a(h)(3)) . . . ,
and (ii) has been brought into the United States in violation of this subsection.” 8 U.S.C. §
1324(a)(3)(B) (emphasis added). It is not altogether clear whether “this subsection” refers to
Section 1324(a)(3) as the relevant subsection under Section 1324(a) or to another provision
within Section 1324. Reading “this subsection” to refer to Section 1324(a)(3) might suggest
that the Government must prove that the aliens were knowingly brought into the United
States (as opposed to having arrived in the United States on their own) by the employer, i.e.,
by Martinez, or by a third party, which is not alleged here and which is not clear from the
record. In any event, Martinez did not raise this specific statutory interpretation point before
the district court or on appeal, and so the point is not before us in this case.
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                                    No. 17-20230
offense, 6 the evidence must establish that Martinez “associated with the
criminal venture, participated in it and sought by his actions to make the
venture succeed.” Jimenez-Elvirez, 862 F.3d at 535 (quoting United States v.
Villenueva, 408 F.3d 193, 201 (5th Cir. 2005) (internal quotation marks
omitted)); see also 18 U.S.C. § 2. Martinez must have had the same criminal
intent that is required for the substantive offense, although the Government
need not prove he personally completed each act required for the substantive
offense. See United States v. Anderson, 174 F.3d 515, 522–23 (5th Cir. 1999).
Evidence that supports a conspiracy conviction is generally sufficient to
support an aiding and abetting conviction. Jimenez-Elvirez, 862 F.3d at 535
(internal quotation marks and citations omitted).
      Martinez argues that the Government’s evidence merely demonstrates
that he “associated with those participating in” the conspiracy, not that he had
actual knowledge of the conspiracy. He also contends that he lacked the
authority to hire the illegal helpers and therefore cannot be convicted for hiring
illegal aliens or conspiring to do so.
      First, although “mere presence with conspirators or knowledge of a
conspiracy is insufficient to convict a defendant of conspiracy,” Welch, 656 F.2d
at 1055, the evidence mounted against Martinez at trial surpasses establishing
“mere presence” and directly implicates him as an active participant in the
conspiracy. As an initial matter, Martinez has maintained on appeal that he
gave Flores and Santiago the idea to reassign valid identification documents
to illegally employed helpers. Flores and Santiago both testified as such at
trial, stating that Martinez proposed the plan to rehire the then-recently fired
helpers and to assign to them the identities of former helpers and applicants.



      6 One who aids or abets the commission of an offense against the United States may
be punished as a principal to such offense. 18 U.S.C. § 2.
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                                 No. 17-20230
Flores also testified that Martinez supplied her with identities to reassign and
worked closely with her to implement the plan of rehiring illegal helpers. Once
the plan was underway, Flores testified that Martinez helped her keep the new
identities of the rehired helpers straight and referred to the helpers by their
newly assigned identities.
      Flores’s and Santiago’s testimony is corroborated by several fired
helpers, who testified that Martinez either directed them to Flores to procure
identification information to start working again, or specifically instructed
them to obtain valid identification documents so that they may resume
working at WMI. Martinez’s former co-workers’ testimony also associates him
with the identity-reassignment scheme. Rose Schuler testified that Martinez
knew the rehired helpers were working under different names, and that he
specifically instructed her to call the rehired helpers by their new names.
Finally, Special Agent Paredes testified that he met with and interviewed
several former helpers who explained that Martinez either called them to
return to work or gave them new identities to enable them to return to work.
The foregoing more than adequately incriminates Martinez as having
knowledge of and being an active, willing participant in the conspiracy to
rehire illegal helpers.
      That Martinez himself lacked the authority to hire illegal helpers does
not absolve him of criminal liability for the identity-reassignment conspiracy.
Although the Government was required to prove that Martinez joined in the
object of the conspiracy, it was not necessary to prove that he committed a
substantive offense that was the object of the conspiracy. United States v.
Cuesta, 597 F.2d 903, 918 (5th Cir. 1979). That is, the Government did not need
to prove that Martinez had hiring authority to convict him of conspiring to hire
illegal aliens as long as there was evidence establishing Martinez’s knowing
association with the conspiracy and that a co-conspirator did have the
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                                        No. 17-20230
authority to hire and used that authority to hire illegal aliens. Here, Flores
testified that she used her position as an AMI representative to access AMI
files and reassign legal identities to illegal helpers, and several illegally
rehired helpers testified that Flores assisted them in obtaining new identities
to resume working at WMI. Because of Flores’s participation in the conspiracy,
a jury could convict Martinez of conspiring with Flores to hire illegal helpers.
       The evidence supporting Martinez’s conspiracy conviction is also
sufficient to support his conviction for aiding and abetting in hiring
undocumented aliens. Flores’s and Santiago’s testimony about Martinez’s
participation in the conspiracy demonstrates Martinez’s willing cooperation in
advancing the scheme and its underlying objective of rehiring a formerly
illegally employed workforce. Their testimony is again corroborated by the
illegal helpers, who testified about Martinez’s efforts in assisting the helpers
with obtaining valid identification documents. Additionally, Martinez’s former
co-workers’ testimony establishes that Martinez worked diligently to ensure
that the identity-reassignment scheme was not foiled by inadvertently
referring to rehired helpers by their actual names. All of this evidence
demonstrates that Martinez “associated with the criminal venture” of rehiring
illegal helpers, “participated in it and sought by his actions to make the
venture succeed,” Jiminez-Elvirez, 862 F.3d at 535, and thereby supports his
aiding-and-abetting conviction. 7




       7   Because the district court instructed the jury on the applicability of Pinkerton
liability, Martinez’s conviction for the substantive offense of hiring illegal aliens can also be
sustained on the basis of his actions as a co-conspirator with Flores and Santiago
notwithstanding his lack of hiring authority. United States v. Solis, 299 F.3d 420, 446–47
(5th Cir. 2002).
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   B. Conspiring to Encourage and Encouraging Illegal Aliens to Reside in the
      United States

      To establish a conspiracy to encourage or induce unlawful aliens to
reside in the United States, the Government was required to prove that
Martinez (1) agreed with one or more persons, (2) to encourage or induce the
aliens named in Counts 4 through 13 of the Superseding Indictment to come
to, enter, or reside in the United States, (3) with knowledge or reckless
disregard of the fact that coming to, entering, or residing in the United States
violated the law, and (4) for the purpose of private financial gain. 8 U.S.C. §
1324(a)(1)(A)(iv), (v)(I).
      Conviction of the substantive offense required a showing that: (1) the
individuals were aliens; (2) Martinez encouraged or induced the aliens in
Counts 4 through 13 to come to, enter, or reside in the United States; (3) he
knowingly or recklessly disregarded the fact that coming to, entering, or
residing in the United States violated the law; and (4) he did so for the purpose
of private financial gain. See 8 U.S.C. §§ 1324(a)(1)(A)(iv), (a)(1)(A)(v)(II).
      Martinez’s sufficiency challenge substantially mirrors that lodged
against his conviction for Counts One and Two: he lacked the authority to hire
illegal helpers and therefore could not have conspired to encourage unlawful
aliens to enter into or reside in the United States or have committed the
substantive offense. He adds that because the illegal helpers were already
present in the United States, they did not need to be induced or encouraged to
enter or stay.
      Martinez’s arguments are again meritless and contrary to the evidence
presented at trial. Both Flores and Santiago testified that they, along with
Martinez, agreed to assign new, valid identities to the formerly fired illegal
helpers. Martinez and his co-defendants also gave the illegal helpers their new
PINs, and Martinez personally helped verify whether certain PINs
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                                       No. 17-20230
corresponded with certain illegal helpers. Additionally, Martinez helped Flores
create cheat sheets to keep the illegal helpers’ new identities straight. This
evidence, in addition to that mentioned in relation to Counts One and Two,
demonstrates Martinez’s active participation in the conspiracy of encouraging
illegal helpers to reside in the United States for purposes of financial gain. See
United States v. Chapman, 851 F.3d 363, 377 (5th Cir. 2017) (“Based on the
extensive evidence of ‘concert of action’ amongst [the defendant] and others,
the jury could reasonably infer an agreement, as well as [the defendant’s]
knowledge, intent, and voluntary participation.” (citations omitted)).
       That Martinez lacked hiring authority is inconsequential, as his co-
conspirators had (and used) their own hiring authority to recruit and hire the
illegal helpers. Nor does Martinez’s argument that the illegal helpers were not
induced or encouraged to reside in the United States because they were already
residing in the country have any merit. Several rehired illegal helpers testified
that they remained in the United States to improve their livelihoods and their
families’ financial positions, and that working at WMI helped accomplish these
goals. 8
       Martinez’s sufficiency challenges to the substantive offenses are also
without merit. Because Martinez was charged with aiding and abetting in
these offenses, the Government need not establish that Martinez “actually
completed each specific act charged in the indictment” but only that he assisted
in the actual perpetration of the offense “while sharing the requisite criminal
intent.” United States v. Rivera, 295 F.3d 461, 466 (5th Cir. 2002). Evidence



       8 Though the issue has not been directly addressed by this circuit, other circuits have
rejected arguments that a conviction under § 1324(a)(1)(A)(iv) cannot be sustained where the
illegal aliens in question already resided in the United States at the time of the alleged
wrongful encouragement or inducement occurred. See, e.g., Edwards v. Prime, Inc., 602 F.3d
1276, 1295–96 (11th Cir. 2010); United States v. Oloyede, 982 F.2d 133, 136–138 (4th Cir.
1993).
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that supports a conspiracy conviction “is generally sufficient to support an
aiding and abetting conviction as well.” Jiminez-Elvirez, 862 F.3d at 535
(internal quotation marks and citations omitted).
      We hold that there is sufficient evidence to sustain Martinez’s
convictions for encouraging or inducing the illegally rehired helpers to reside
in the United States. As outlined above, several of the illegal helpers
specifically identified Martinez and other WMI managers as either directing
them to Flores to procure new identification for employment at WMI, or
encouraging them to get a “good Social Security number.” Further, Martinez
knew that each of the individuals he encouraged to secure valid identification
documents were illegal aliens; this fact was not only “common knowledge” but
was also the driving force behind the creation and execution of the scheme.
      This evidence is sufficient to demonstrate that Martinez “associated with
the criminal venture, participated in it and sought by his actions to make the
venture succeed” and therefore supports his convictions for aiding and abetting
in the commission of the crimes charged in Counts 4–13. Jiminez-Elvirez, 862
F.3d at 535.
   C. Aiding and Abetting Aggravated Identity Theft
      The aggravated identity theft statute provides: “Whoever, during and in
relation to any felony violation enumerated in subsection (c) knowingly
transfers, possesses, or uses, without lawful authority, a means of
identification of another person shall, in addition to the punishment provided
for such felony, be sentenced to a term of imprisonment of 2 years.” 18 U.S.C.
§ 1028A. The list of offenses enumerated in subsection (c) of the statute
includes the immigration crimes for which Martinez was convicted under
Counts 1–13 of the Superseding Indictment. See 18 U.S.C. § 1028A(c)(10). To
convict Martinez of aggravated identity theft, the Government was required to
prove that Martinez “(1) knowingly used (2) the means of identification of
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                                  No. 17-20230
another person (3) without lawful authority (4) during and in relation to [the
crimes connected with Counts 1–13].” See United States v. Carbins, 882 F.3d
557, 563 (5th Cir. 2018). The term “means of identification” is defined as “any
name or number that may be used, alone or in conjunction with any other
information, to identify a specific individual.” 18 U.S.C. § 1028(d)(7) (emphasis
added). This includes any name, social security number, or date of birth. Id. §
1028(d)(7)(A). The Government was required “to show that [Martinez] knew
that the means of identification at issue belonged to another person.” Carbins,
882 F.3d at 563–64 (quoting Flores-Figueroa v. United States, 556 U.S. 646,
657 (2009)) (internal quotation marks omitted). “[A] person is liable under [18
U.S.C. § 2] for aiding and abetting a crime if (and only if) he (1) takes an
affirmative act in furtherance of the offense, (2) with the intent of facilitating
the offense’s commission.” Id. at 564 (internal quotation marks and citations
omitted).
      Martinez argues he neither possessed nor transferred any other person’s
identification documents because all identifying information was in the
exclusive possession of AMI and Flores. The evidence produced at trial
supports this assertion: the Government did not present evidence implicating
Martinez as having directly provided Social Security cards or other
identification information to rehired helpers. Rather, the evidence identifies
Flores as having assigned the rehired illegal helpers with the identities of
former applicants and legal employees.
      Even so, the evidence implicating Flores as having assigned identities to
rehired helpers, and the testimony identifying Martinez as having transferred
PINs linked to the former legal employees and applicants to the rehired illegal
helpers, demonstrate that “Martinez associated with the criminal venture [of
aggravated identity theft], participated in it and sought by his actions to make
the venture succeed.” Jimenez-Elvirez, 862 F.3d at 535. This evidence, along
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   Case: 17-20230    Document: 00514610328      Page: 17   Date Filed: 08/21/2018



                                 No. 17-20230
with the seeming concession (and supporting testimony of Flores and Santiago)
that Martinez at a minimum played a large role in devising the plan to reassign
legal identification documents to rehired illegal helpers, establishes that
Martinez aided and abetted in the commission of aggravated identity theft
with the requisite criminal intent, although he did not himself directly handle
any of the victims’ identification documents. Flores’s and Santiago’s testimony
that Martinez created the plan also undercuts his argument that Flores may
have assigned fictitious names and identities to the rehired helpers. Martinez
specifically suggested that Flores and Santiago use the valid documents of
former employees and applicants (and even gathered some former driver logs
that identified the names of former employees and applicants).
      Because of all the evidence cementing Martinez as central to the
identification-assignment scheme, and because the Government did not need
to prove that Martinez was in physical possession of the identity theft victims’
identification information to sustain a conviction for aiding and abetting
aggravated identity theft, we hold that “a reasonable juror could conclude that
the elements of the crime [of aiding and abetting aggravated identity theft]
were established beyond a reasonable doubt.” Evans, 892 F.3d at 702.
                              III.   CONCLUSION
      The evidence produced at trial was sufficient to support Martinez’s
conviction. His conviction and sentence are therefore AFFIRMED.




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