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United States v. Rojas

United States Court of Appeals, Eighth Circuit

June 27, 2016

United States of America, Plaintiff- Appellee
Yoirlan Tome Rojas, Defendant-Appellant

          Submitted: March 14, 2016

         Appeal from United States District Court for the Northern District of Iowa - Sioux City

          Before MURPHY, BEAM, and GRUENDER, Circuit Judges.

          GRUENDER, Circuit Judge.

         A jury found Yoirlan Tome Rojas guilty on several charges related to his use of counterfeit credit cards. He now appeals, claiming that the district court[1] plainly erred at trial by allowing a Government witness to testify to the ultimate question of whether certain acts constituted the crime of identity theft. He also argues that the court abused its discretion by permitting the introduction of impeachment evidence to undermine his assertion that he lacked criminal intent. We affirm.


         On November 6, 2013, police received a call from a victim whose credit card information had been used without authorization at a Walmart store in Storm Lake, Iowa. A Walmart employee assisted police in retrieving the store's video recordings, which showed that a man in brown coveralls had made the fraudulent purchases. The culprit had attempted several transactions at multiple registers in the store, only some of which were successful. The store's transaction records revealed that the culprit purchased approximately $600 in store gift cards and merchandise on November 6. Police used the video images to create a flyer depicting the culprit and his two-tone Chevy Silverado pick-up truck.

         Several days later, a Storm Lake police officer saw the truck and followed it to a driveway on a residential street. The officer noticed that the driver was wearing the same brown coveralls worn by the man in the Walmart video. The officer approached the driver, Yoirlan Tome Rojas, and asked if he would go to the police station for an interview. Rojas agreed. While Rojas was at the station, a second victim called the Storm Lake police to report that her husband's credit card information had been used without authorization at the same Walmart store several months earlier on September 13. Rojas remained at the station while one officer went to the store to obtain a video recording of the September 13 fraudulent transaction. Upon viewing the video, police confirmed that the same culprit had made fraudulent purchases on both occasions. Police identified Rojas as that culprit.

         Based on this information, police obtained a search warrant for Rojas's apartment. Inside, they found keys to a storage locker in the apartment building's hallway and a shaving razor of the type purchased in one of the fraudulent Walmart transactions. Police then obtained a search warrant for the storage locker. The locker contained approximately 244 counterfeit credit cards, including a card bearing the sixteen-digit account number that had been used fraudulently to purchase gift cards on November 6, a map listing all of the Walmart stores in Iowa, and gift cards from various stores, including Walmart.

         A grand jury charged Rojas with several crimes related to the credit card fraud, including use of counterfeit access devices, in violation of 18 U.S.C. § 1029(a)(1); possession of fifteen or more counterfeit access devices, in violation of 18 U.S.C. § 1029(a)(3); money laundering, in violation of 18 U.S.C. § 1956(a)(1); and aggravated identity theft, in violation of 18 U.S.C. § 1028A(a)(1). At the time of his arrest, Rojas had several pairs of nearly identical credit and debit cards in his wallet. Although all of the cards bore his name, one card in each pair had been re-encoded with account information that did not belong to Rojas and that did not match the number embossed on the front of the card. Prior to trial, Rojas filed a motion to suppress these cards as illegally seized evidence. The Government did not oppose this motion, and the court granted it.

         During trial, the Government presented the testimony of several law enforcement officials who had been involved in the investigation. The officers testified that a counterfeit credit card bearing the information associated with the November 6 victim had been found in Rojas's storage locker. The prosecutor asked one of the Government's witnesses, Special Agent Michael Hawkins: "[I]f anyone were to use this [credit] card without the [owner's] permission, would that constitute identity theft?" Special Agent Hawkins responded that it would. Rojas did not object to the question or to the testimony it elicited.

         Rojas opted to testify on his own behalf. He admitted using the counterfeit credit cards at the Walmart in Storm Lake; however, he maintained that he did not know that the cards were counterfeit. He stated that he had accepted the cards as payment for his work as a mechanic because he believed that they were gift cards, and he maintained that he did not understand the difference between credit cards and gift cards. The district court allowed the Government to use extrinsic evidence-specifically, the pairs of credit and debit cards found in Rojas's wallet at the time of arrest-to impeach these assertions during the cross examination of Rojas. The court also permitted Special Agent Hawkins to testify as a rebuttal witness that one card in each pair was authentic and unaltered, while the other had been re-encoded with electronic account information that belonged to someone other than Rojas. At the close of evidence, the jury found Rojas guilty of all charges. The court sentenced Rojas to 51 months' imprisonment and two years' supervised release.


         In this appeal, Rojas first contends that the district court improperly allowed Special Agent Hawkins to invade the province of the jury when he testified to the ultimate question whether certain conduct constituted the crime of identity theft. Because Rojas did not object to this statement during trial, we review only for plain error. See United States v. Eagle, 515 F.3d 794, 801 (8th Cir. 2008). An appellant demonstrates plain error if he shows that: "(1) the district court committed an error, (2) the error is clear or obvious, and (3) the error affected his substantial rights." United States v. Thornberg, 676 F.3d 703, 706 (8th Cir. 2012) (quoting United States v. White Bull, 646 F.3d 1082, 1091 (8th Cir. 2011)). If an appellant makes this showing, an appellate court "may then exercise [its] discretion to notice a forfeited error, but only if the error seriously affects the fairness, integrity, or public reputation of judicial proceedings." Eagle, 515 F.3d at 801. Here, even if we assume arguendo that the court erred by permitting Special Agent Hawkins's testimony, we conclude that Rojas has not shown that the error affected his substantial rights.

         To demonstrate that his substantial rights were affected, "a defendant is generally required to show 'a reasonable probability that the outcome [of the district court proceedings] would have been different absent the alleged error.'" United States v. Wallace, 713 F.3d 422, 427 (8th Cir. 2013) (quoting United States v. Yielding, 657 F.3d 688, 707-08 (8th Cir. 2011)). Rojas cannot meet this burden because the record reveals that, independent of Special Agent Hawkins's testimony, "there was ample evidence upon which a jury could have found that [Rojas] committed the substantive offense charged." See United States v. Farrell, 563 F.3d 364, 378 (8th Cir. 2009) (finding no plain error even ...

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