U.S. v. Jimenez

• Decision Date: 31 October 2007
• Docket Number: No. 06-2044.,06-2044.
• Citation: 507 F.3d 13
• Parties: UNITED STATES of America, Appellee, v. Jose JIMENEZ, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

507 F.3d 13

UNITED STATES of America, Appellee, v. Jose JIMENEZ, Defendant, Appellant.

No. 06-2044.

United States Court of Appeals, First Circuit.

Heard September 14, 2007.

Decided October 31, 2007.

Jeffrey L. Baler for appellant.

B. Stephanie Siegmann, Assistant United States Attorney, with whom Michael J. Sullivan, United States Attorney, was on brief, for appellee.

Before TORRUELLA and HOWARD, Circuit Judges, and DELGADO-COLÓN,^* District Judge.

HOWARD, Circuit Judge.

Jose Jimenez was convicted of misappropriating the identities of two people long dead. He raises two challenges, one relating to all the charges and the other only to the two counts of aggravated identity theft. First, Jimenez argues that certain evidence admitted at trial should have been excluded for want of relevance or because it was unduly prejudicial. Second, he claims that "person" in the statute defining aggravated identity theft refers only to the living. In the alternative, he argues that the statute is sufficiently ambiguous to require reversal under the rule of lenity. We affirm.

I. Facts

In January, 2005, Jose Jimenez was stopped pursuant to a warrant by Springfield, Massachusetts police. He identified himself as Barry Abraham and provided a driver's license with that name on it. Subsequent searches revealed many documents in the name Barry Abraham, including a United States passport and Social Security card, a tax return, a credit card statement, and bank records. Mixed in with the correspondence addressed to Barry Abraham were Verizon telephone bills addressed to David Davison, although the real Davison was long deceased. The searches also revealed the birth and death certificates of Michael Ian Figueroa, who died in 1978, and a document from 2002 certifying a change of name from Michael Ian Figueroa to Barry Abraham. The death certificate of an unrelated Jared Figueroa was also found, as well as official responses to requests for his birth certificate. Investigators discovered the high school and college transcripts of many other individuals as well as handwritten lists of names and biographical data, including the names and information of Davison and Jared Figueroa. Another page of handwritten notes concerned credit reporting agencies and the Orange County, California Clerk's office, and on the reverse of this sheet were Michael Ian Figueroa's name and Social Security number. Finally, a computer disk seized during one search contained electronic documents entitled "The Anarchist Cookbook 2000," "Ebay secrets/internet spy toolkit," and "confidential info on anyone and credit." These electronic documents detailed how to establish a false identity, how to search the Social Security death database, and related topics.

Jimenez was tried on nine counts relating to the acquisition and use of the identities of Michael Ian Figueroa and David Davison.¹ He moved in limine to exclude evidence that did not directly relate to the specific identities at issue, including the high school transcripts, the lists of other names with biographical data, and the electronic documents. He claimed both that the evidence was not relevant and that prejudicial impact upon the jury outweighed any probative value. The district court admitted the evidence but restricted the use of the "Anarchist Cookbook," preventing use of the title of the document and allowing use only of the section entitled "How to Create a New Identity." Jimenez was convicted by the jury on all nine counts.

II. The motion in limine

Jimenez makes three arguments relating to the following five kinds of evidence: (i) documents on the computer disk; (ii) handwritten lists of others' biographical data (names, Social Security numbers, dates and places of birth and death); (iii) high school and college transcripts; (iv) the death certificate, and denials of requests for the birth certificate, of Jared Figueroa; and (v) the handwritten sheet with information about the Orange County Clerk's office and various credit reporting agencies. First, he contends that such evidence should have been excluded because it is irrelevant. Second, he claims that even if relevant, the evidence should have been excluded because it is mere character evidence with no "special probative value." Last, he claims that the evidence, even if otherwise admissible, should have been excluded because it is too prejudicial. We disagree.

We review evidentiary rulings for an abuse of discretion. United States v. Turner, 501 F.3d 59, 72 (1st Cir.2007); United States v. Perez-Gonzalez, 445 F.3d 39, 47 (1st Cir.2006). The district court made no written resolution of the motion in limine, and at trial the treatment of the objection was cursory. But defense counsel did raise the objection and therefore is not relying solely on the motion in limine. See United States v. Griffin, 818 F.2d 97, 105 (1st Cir.1987) ("[T]o raise and preserve for review the claim of improperly constructing the Rule 403 balance, a party must obtain the order admitting or excluding the controversial evidence in the actual setting of the trial.").

Jimenez first challenges the admission of the evidence on the ground that it is not relevant. "Evidence which is not relevant is not admissible." Fed.R.Evid. 402. "Relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Fed.R.Evid. 401. We reject Jimenez's argument that none of this evidence relates to any element of any of the charges brought.

In our view, the evidence supports the government's claim that Jimenez was engaged in an effort to misappropriate identities, and that the specific acts he is charged with were the culmination of that effort. The electronic documents show how he learned how to commit the offenses. The fact, adduced at trial, that Jimenez's modus operandi very closely mirrored that set forth in "How to Create a New Identity" is directly relevant to this theory. The handwritten lists of biographical information likewise present evidence of a person in the process of committing identity theft. The piles of high school and college transcripts, the information and documents concerning Jared Figueroa, and the information about credit reporting agencies and the Orange County Clerk's office all flesh out the jury's sense of the crime, not just the man. They therefore meet the initial threshold of relevance under Rule 401.

Jimenez also argues that, even if relevant, the evidence is inadmissible under Rule 404. That rule excludes evidence of prior "bad acts" when it is offered merely to prove the defendant's character.² Such evidence is admissible, however, to show "preparation, plan, knowledge, identity, or absence of mistake or accident." Fed.R.Evid. 404(b). We have interpreted Rule 404(b) to require some "special relevance," that is, a "purpose other than solely to prove that the defendant had a propensity to commit the crime in question." United States v. Aguilar-Aranceta, 58 F.3d 796, 798 (1st Cir.1995). With this as our guide we examine the evidence for "at least one permissible inference." United States v. Nickens, 955 F.2d 112, 125 (1st Cir.1992) (quoting United States v. Ferrer-Cruz, 899 F.2d 135, 138 (1st Cir.1990)). The showing of special relevance is not particularly demanding. In another identity theft case, we held there was no abuse of discretion in admitting evidence that the defendant was a resident in a federal half-way house (and therefore necessarily a former inmate of a federal prison), because the halfway house was convenient to the ATMs used in the scheme, and this had special relevance to the defendant's "opportunity" to commit the crime. United States v. Scott, 270 F.3d 30, 47 (1st Cir. 2001).

Here, the evidence shows preparation and plan.³ The handwritten lists demonstrate preparation for the act of misusing the Social Security number of the late Mr. Davison in order to obtain telephone service. Likewise, the handwritten information regarding the Orange County Clerk's office tends to prove or disprove specific steps Jimenez took to obtain information about David Davison, whose death certificate was processed in Orange County. Before using another's Social Security number, of course, one must obtain it; the jury might reasonably think these were illustrative of research and preparation. The computer documents explain how to establish a new identity, likewise demonstrating Jimenez planning and preparing to misuse identities. The documents regarding Jared Figueroa's vital statistics show the jury how Jimenez went about creating the false identities he was charged with misusing; Jared Figueroa's information also appears on the handwritten lists, strengthening the inference that all of this was part of Jimenez's planning and preparation. Thus, even taking the evidence as extrinsic to the offenses charged, we hold it was not an abuse of discretion to admit it under Rule 404(b).

The government argues in this appeal that the handwritten lists and the computer documents were intrinsic to the offense, part and parcel of the crimes charged, or else tools of the trade of identity thieves. Because we hold that the district court did not abuse its discretion even if it admitted this as extrinsic evidence under Rule 404(b), we need not, and do not, decide this issue.

Finally, Jimenez claims that the district court abused its discretion in admitting the evidence because the danger of unfair prejudice substantially outweighed any probative value. See Fed.R.Evid. 403 ("[E]vidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice . . . ."). We have long noted that all relevant evidence is in some sense prejudicial because it leads the jury to find a material fact more or less likely. See United States v. Pinillos-Prieto, 419 F.3d 61, 72 (1st Cir.2005) ("`Virtually...