United States v. Abhijit Prasad

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 8 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-10454
Plaintiff-Appellee, D.C. No.
3:18-cr-00368-CRB-1
v.
ABHIJIT PRASAD, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of California
Charles R. Breyer, District Judge, Presiding
Argued and Submitted February 9, 2021
San Francisco, California
Before: BERZON, CHRISTEN, and BADE, Circuit Judges.
Defendant-Appellant Abhijit Prasad appeals his convictions on twenty-one
counts of visa fraud, in violation of 18 U.S.C. § 1546(a), and two counts of
aggravated identity theft, in violation of 18 U.S.C. § 1028A(a)(1). Prasad asserts
evidentiary errors and challenges the sufficiency of the evidence. We have
jurisdiction under 28 U.S.C. § 1291, and we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Prasad operated Maremarks, a company through which he filed petitions
with United States Citizenship and Immigration Services (USCIS) to obtain H-1B
nonimmigrant status for foreign workers, known as H-1B beneficiaries, to supply
these beneficiaries as workers for his end-clients. The government alleged that
Prasad falsely represented in the H-1B petitions that there were specific work
positions for the prospective H-1B beneficiaries at Maremarks’ end-clients,
including Cisco Systems, when those work positions did not exist. The
government asserted that Prasad’s commission of some counts of visa fraud
included fabricating a work position at Cisco and then forging a Cisco employee’s
signature on a statement of work, which purportedly evinced that there was a bona
fide position at Cisco for the H-1B beneficiary even though no position existed.
See Donald Neufeld, U.S. Citizenship & Immigr. Servs., HQ 70/6.2.8 (AD 10-24),
Determining Employer-Employee Relationship for Adjudication of H-1B Petitions,
Including Third-Party Site Placements (2010).1
1. Prasad argues that the district court violated Federal Rule of Evidence
404(b) by admitting evidence of two statements of work, Exhibits 20 and 919, that
were related to dismissed visa fraud charges. “Evidence of any other crime,
wrong, or act is not admissible to prove a person’s character in order to show that
1
This guidance was effective during the period that Prasad filed the petitions
at issue in this case. See U.S. Citizenship & Immigr. Servs., U.S. Dep’t of
Homeland Sec., PM-602-0114, Rescission of Policy Memoranda 1 (2020).
2
on a particular occasion the person acted in accordance with the character.” Fed.
R. Evid. 404(b)(1). “‘Other act’ evidence that is ‘inextricably intertwined’ with a
charged offense is independently admissible and is exempt from the requirements
of Rule 404(b).” United States v. Anderson, 741 F.3d 938, 949 (9th Cir. 2013).
This court reviews de novo whether evidence falls under Rule 404(b)’s prohibition.
See United States v. Dorsey, 677 F.3d 944, 951 (9th Cir. 2012).
The district court did not err in admitting Exhibits 20 and 919 because they
were relevant to the charges presented at trial. The government offered Exhibits
20 and 919 to prove that there was a fraudulent signature on a statement of work,
which the government offered as Exhibit 1006, that formed the basis for five
counts of visa fraud. The government asserted that Exhibits 20, 919, and 1006 all
included the same, identical signature of a Cisco employee, Jennifer Teves. And
the government elicited testimony that Prasad knew his associate photoshopped
Teves’s authentic signature from the statement of work in Exhibit 919 onto the
statement of work in Exhibit 20. Thus, Exhibits 20 and 919 were relevant to
whether the purportedly identical signature on Exhibit 1006 was fraudulent and
whether Prasad knew it was fraudulent, two of the elements of visa fraud under
§ 1546(a). Thus, because Exhibits 20 and 919 bore directly on the elements of the
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charged offenses, Rule 404(b)’s prohibition on character evidence did not apply.2
Dorsey, 677 F.3d at 952; Anderson, 741 F.3d at 949.
2. Prasad also asserts that Exhibits 20 and 919 are inadmissible under
Federal Rule of Evidence 608(b). But the government did not offer Exhibits 20
and 919 “to prove specific instances of a witness’s conduct in order to attack or
support [Prasad’s] character for truthfulness.” Fed. R. Evid. 608(b); Fed. R. Evid.
608 Committee Notes on Rules—2003 Amendment (stating Rule 608(b) only
applies “when the sole reason for proffering that evidence is to attack or support
the witness’ character for truthfulness”). Rather, Exhibits 20 and 919 were
relevant to whether Prasad committed visa fraud, and thus, Rule 608(b) is
inapplicable. See Fed. R. Evid. 608(b); United States v. Abel, 469 U.S. 45, 56
(1984).
3. Finally, Prasad challenges his conviction for two counts of aggravated
identity theft, in violation of 18 U.S.C. § 1028A(a)(1), for using Cisco employee
Naveen Gattu’s name next to a QR code on two fraudulent statements of work.
Prasad argues that there was insufficient evidence to show that he used Gattu’s
name “without lawful authority” because the evidence demonstrated that he
2
The district court’s in limine ruling—essentially stating that it would abide
by Rule 404(b)’s restrictions—is therefore irrelevant to our analysis.
4
believed that he had permission to use Gattu’s name.3 See 18 U.S.C.
§ 1028A(a)(1).
However, whether Prasad had permission to use Gattu’s name is irrelevant
because Prasad “use[d] the identification unlawfully.” United States v. Gagarin,
950 F.3d 596, 604 (9th Cir. 2020) (internal quotation marks omitted). The jury
convicted Prasad on counts 30 and 31, which charged that Prasad committed visa
fraud under § 1546(a) by filing fraudulent statements of work. Prasad affixed
Gattu’s name on these statements of work and, thus, used Gattu’s means of
identification “during and in relation to” his commission of visa fraud. See
Gagarin, 950 F.3d at 604. He therefore used Gattu’s name unlawfully. See id.
Accordingly, the evidence sufficiently supports Prasad’s convictions under
§ 1028A(a)(1).
AFFIRMED.
3
Prasad asserts, in passing, that this court “has never held that a false QR
code, without further data attached to it, constitutes a name within the meaning of
section 1028A.” But the inclusion of the QR code next to Gattu’s name is
immaterial because “a means of identification” is defined as “any name or number
that may be used, alone or in conjunction with any other information, to identify a
specific individual.” 18 U.S.C. § 1028(d)(7); see also United States v. Alexander,
725 F.3d 1117, 1120 (9th Cir. 2013) (“Subsection (A) reiterates that any ‘name’
meets the definition.” (quoting 18 U.S.C. § 1028(d)(7)(A))). Gattu’s name can be
used to identify Gattu and, thus, it is clearly “a means of identification” under
§ 1028(d)(7).
5