United States of America v. Cruz Torres-Gonzalez

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CRUZ TORRES-GONZALEZ,
Defendant - Appellant.
No. 14-50017
D.C. No. 3:12-cr-04076-GPC-1
MEMORANDUM*
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.
FILED
SEP 01 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

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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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