NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,

Plaintiff

- Appellee,

v. ABHIJIT PRASAD,

Defendant

- Appellant. No. 19

- 10454
D.C. No. 3:18

- cr - 00368

- CRB

- 1

MEMORANDUM *

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. 

# FILED

NOV 8 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS2

Prasad operat ed Maremarks , a company through which he fil ed petitions with United States C itizenship and Immigration Services (USCIS) to obtain H

- 1B nonimmigrant status for foreign workers, known as H

- 1B beneficiaries, to s upply these beneficiaries as workers for his end

- clients. The government alleged that Prasad f alsely represented i n the H

- 1B petitions that there w ere specific work positions for the prospective H

- 1B beneficiaries at Maremarks’ end

- clients, including Cisco Systems , when those work positions did not exist

. T he government a sserted that Prasad ’s c ommission of some counts of vis a 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

. Se e Donald Neufeld, U.S. Citizenship & Immigr. Serv s ., 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 admit ting evidence of two statements of work , E xhibits 20 and 919 , that were related to dismissed visa fraud charges

. “Evidence of any other crime, wrong, or act is not admi ssible 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. Serv s
. , U.S. Dep’t of Homeland Sec., P M

- 602

- 0114 , Rescission of Policy Memoranda 1 ( 2020).3

on a particular occasion the person acted in accordance with the charact er.” Fed. R. Evid. 404(b)(1)

. “ ‘ Other act ’ evidence that is ‘ inextricably intertwined ’ with a charged offense is independen tly 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, 95 1 (9th Cir. 2012)

. The district court did not err in admitting Exhibits 20 and 919 because they

we re relevant to the charge s presented at trial

. The government offered Exhibit s 20 a nd 919 to prove that there was a fraudulent signature on a sta tement of work , which the government offered as Exhibit 1006, that formed the basis for five counts of visa fraud. The government a sserted that Exhibits 20, 919, and 1006 all included the same, identical signature of a Cisco employee , Jennifer Teves . And
t he 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, E xhibits 20 and 919 were relevant t o 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)

. Th u s, b ecause Exhibits 20 and 919 bore directly on the elements of the4

charged offen ses , 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 E xhibits 20 and 919 are in admissible under Federal Rule of Evidence 608(b). But t he government did not offer E xhibits 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 Commit tee 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 we re 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 us ing 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 demonstrate d that he

2 The district court’s in limine ruling

— essentially stating that it would abide b y Rule 404(b) ’s restrictions

— is therefore irrelevant to our analysis

.5

believed that he had permission to use Gattu’s name. 3 See 18 U.S.C. § 1028 A (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)

. T he jury convicted Prasad on counts 30 and 31 , which charged that Prasad committed visa fraud under § 1546(a) by filing fraud ulent statements of work. P rasad 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 Ga t tu’s name unlawfully

. See i d. Accordingly , the evidence sufficiently support s Prasa d’s conviction s 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 i s 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).