United States v. Jose Machorro-Xochicale, 840 F.3d 545

On Oct. 31, 2014, Jose Miguel Machorro-Xochicale applied for work at Mehmert Tiling, completed a Form I-9, and presented a permanent resident card and Social Security card that later were found to be falsified.
Employer Brent Mehmert reviewed the documents and I-9; he did not sign the employer certification on the second page. Mehmert testified he spoke little Spanish and that Machorro-Xochicale appeared to understand English.
Immigration agents investigating the defendant’s brother obtained Machorro-Xochicale’s paperwork and determined the documents were forged; agents arrested him under warrant.
While transported, ICE Agent Moore read Miranda rights in Spanish; Machorro-Xochicale waived and admitted (in English) buying the false documents for $200, knowing they were false and illegal to use for employment.
Indicted on two counts — unlawful use of identification documents (18 U.S.C. § 1546(a)) and misuse of a Social Security number (42 U.S.C. § 408(a)(7)(B)) — Machorro-Xochicale was convicted by a jury and sentenced to 126 days imprisonment plus supervised release.
On appeal he argued (1) insufficient evidence of identity and intent, and (2) district court abused discretion by excluding cross-examination/argument about selective prosecution (failure to prosecute employer Mehmert for I-9 omission).

Issue	Plaintiff's Argument	Defendant's Argument	Held
Sufficiency of evidence—identity (who submitted documents)	Mechorro-Xochicale argued record didn’t prove he, rather than his brother, submitted the I-9 and documents	Mehmert testified defendant completed the form and provided documents; jury could credit that testimony	Affirmed. Jury could reasonably infer defendant submitted the documents.
Sufficiency of evidence—intent to use forged docs and to deceive with SSN	Defendant claimed lack of English and confusion (incomplete I-9, wrong box) negates knowing intent	Defendant’s own admissions that he bought forged PR and SS cards, knew they were false, and knew it was illegal to use them	Affirmed. Admissions and other evidence support knowing use and intent to deceive.
Exclusion of selective-prosecution evidence/argument	Defendant sought to cross-examine about Government’s decision not to prosecute employer Mehmert and argue selective prosecution (race/nationality basis)	Government argued irrelevant; court noted selective-prosecution claims must be raised pretrial and are for the court, not jury	Affirmed. District court did not abuse discretion; defense waived selective-prosecution claim by failing to raise it pretrial.

United States v. Ellis, 817 F.3d 570 (8th Cir. 2016) (standard for reviewing sufficiency of the evidence; view evidence in light most favorable to government)
United States v. Mosby, 101 F.3d 1278 (8th Cir. 1996) (highly deferential review to jury verdict)
United States v. Elzahabi, 557 F.3d 879 (8th Cir. 2009) (elements for unlawful use of alien registration/identification documents)
United States v. Porter, 409 F.3d 910 (8th Cir. 2005) (elements for misuse of Social Security number under § 408(a)(7)(B))
United States v. Gordon, 510 F.3d 811 (8th Cir. 2007) (abuse-of-discretion review for scope of cross-examination)
United States v. Martin, 391 F.3d 949 (8th Cir. 2004) (review standard for closing-argument rulings)
United States v. Huber, 404 F.3d 1047 (8th Cir. 2005) (selective-prosecution claims must be raised pretrial)
United States v. Salahuddin, 765 F.3d 329 (3d Cir. 2014) (waiver of selective-prosecution defense when not raised before trial)
United States v. Regan, 103 F.3d 1072 (2d Cir. 1997) (selective-prosecution is a judicial issue for the court, not jury)
United States v. Washington, 705 F.2d 489 (D.C. Cir. 1983) (selective-prosecution determination is for the court as a legal issue)