United States v. Cruz Torres-Gonzalez , 625 F. App'x 331 ( 2015 )


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  •                            NOT FOR PUBLICATION
    UNITED STATES COURT OF APPEALS
    FILED
    FOR THE NINTH CIRCUIT
    SEP 01 2015
    MOLLY C. DWYER, CLERK
    U.S. COURT OF APPEALS
    UNITED STATES OF AMERICA,                        No. 14-50017
    Plaintiff - Appellee,              D.C. No. 3:12-cr-04076-GPC-1
    v.
    MEMORANDUM*
    CRUZ TORRES-GONZALEZ,
    Defendant - Appellant.
    Appeal from the United States District Court
    for the Southern District of California
    Gonzalo P. Curiel, District Judge, Presiding
    Argued and Submitted May 6, 2015
    Pasadena, California
    Before: NOONAN, WARDLAW, and MURGUIA, Circuit Judges.
    Cruz Torres-Gonzalez (Torres) appeals his convictions for unlawful reentry
    and making a false statement to a federal officer in violation of 8 U.S.C. § 1326
    and 18 U.S.C. § 1001. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we
    affirm.
    *
    This disposition is not appropriate for publication and is not precedent
    except as provided by 9th Cir. R. 36-3.
    1. The district court did not commit plain error by instructing the jury that to
    find Torres guilty under 18 U.S.C. § 1001, it was required to find that he made a
    false statement “willfully, that is, deliberately and with knowledge that the
    statement was untrue.” Assuming, without deciding, that the jury instruction
    amounted to error, Torres cannot establish that the error affected his substantial
    rights. United States v. Marcus, 
    560 U.S. 258
    , 262 (2010). Torres admitted at trial
    that he had been deported at least twenty times, that he had prior convictions for
    illegal reentry, and that he had previously pled guilty to the crime of making a false
    statement to a federal officer. Given Torres’s extensive history with immigration
    authorities and his prior convictions for the same offense, he cannot credibly
    maintain that he did not know it was unlawful to make a false statement to
    immigration authorities.
    2. The district court correctly concluded that sufficient evidence satisfied the
    materiality element of the crime of making a false statement to a federal officer in
    violation of 18 U.S.C. § 1001. Jackson v. Virginia, 
    443 U.S. 307
    , 318–19 (1979).
    A rational jury could have concluded that Torres’s use of a false name when he
    was detained by border officials was “capable of influencing[] the decision of the
    decisionmaking body to which it was addressed.” United States v. King, 
    735 F.3d 1098
    , 1107–08 (9th Cir. 2013). That border officials were eventually able to
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    ascertain Torres’s correct name from his fingerprints is irrelevant. In assessing
    materiality, “our concern is not with the extent of the agency’s reliance, but rather
    with the intrinsic capabilities of the false statement itself.” 
    Id. at 1108
    (internal
    quotation marks omitted).
    3. Sufficient evidence also supported the jury’s finding that Torres
    voluntarily reentered the United States without permission in violation of 8 U.S.C.
    § 1326. 
    Jackson, 443 U.S. at 319
    . United States Border Patrol Agent Phillip
    Kader testified that he arrested Torres approximately two miles north of the United
    States-Mexico border. Although Torres testified that he was forcibly dragged
    through a border fence into the United States from Mexico, the jury could have
    reasonably disbelieved his account. We must “assum[e] that the jury resolved all
    [credibility and evidentiary disputes] in a manner which supports the verdict.”
    Bruce v. Terhune, 
    376 F.3d 950
    , 957 (9th Cir. 2004) (quoting United States v.
    Ramos, 
    558 F.2d 545
    , 546 (9th Cir. 1977)).
    4. The district court did not abuse its discretion by admitting the testimony
    of the government’s handwriting expert, Sandra Homewood. United States v.
    Gonzales, 
    307 F.3d 906
    , 909 (9th Cir. 2002). Based on Homewood’s testimony at
    the Daubert hearing, the district court correctly found that Homewood’s method of
    handwriting analysis had been tested; had a reasonable error rate; was subject to
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    peer review; and was subject to certain standards, even if not completely
    standardized. See United States v. Prime, 
    431 F.3d 1147
    , 1151–54 (9th Cir. 2004)
    (holding that the same method of handwriting analysis utilized by Homewood
    satisfied the reliability requirement of Federal Rule of Evidence 702). Nor was the
    district court’s finding that Homewood was “well-versed” and “well-experienced”
    in the field of handwriting analysis clearly erroneous. Homewood testified that she
    had over thirty years of experience in the field of handwriting analysis and was
    certified by the American Board of Forensic Document Examiners.
    5. Nor did the district court err in admitting Homewood’s testimony that
    Torres deliberately disguised his handwriting when ordered to provide an
    exemplar. The challenged testimony did not violate Federal Rule of Evidence
    704(b) because it did not “compel[] the jury to conclude that the defendant did or
    did not posses the requisite mens rea” of the crimes for which he was charged.
    United States v. Finley, 
    301 F.3d 1000
    , 1014–15 (9th Cir. 2002). Nor did the
    district court abuse its discretion in admitting Homewood’s testimony that she was
    “absolutely certain” that Torres wrote the signature “Juan Ruiz Gonzalez” on the
    Form I-286. A forensic document examiner may state her ultimate conclusion as
    to whether the defendant’s handwriting appears on questioned documents. See
    
    Prime, 431 F.3d at 1152
    , 1154. Moreover, Homewood’s testimony mirrored the
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    language used by the American Society for Testing and Materials to describe a
    Level 1 identification, and the district court expressly permitted Homewood to
    testify that her identification of Torres’s handwriting satisfied Level 1.
    AFFIRMED.
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