United States v. Acosta-Joaquin , 894 F.3d 60 ( 2018 )

United States Court of Appeals
For the First Circuit
No. 17-1379
UNITED STATES OF AMERICA,
Appellee,
v.
CARLOS RAFAEL ACOSTA-JOAQUIN,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Jon D. Levy, U.S. District Judge]
Before
Howard, Chief Judge,
Boudin and Kayatta, Circuit Judges.
Tina Schneider on brief for appellant.
Benjamin M. Block, Assistant United States Attorney, and
Halsey B. Frank, United States Attorney, on brief for appellee.
July 2, 2018
BOUDIN, Circuit Judge. Carlos Rafael Acosta-Joaquin
("Acosta"), who appeals from his conviction for fraudulent use of
a social security number not his own, is a Dominican citizen. He
entered the United States illegally sometime in 2005 or 2006, has
remained ever since and early adopted the name of a U.S. citizen
named Kelvin Valle-Alicea ("Valle"). Following a four-count
indictment,1 a jury convicted Acosta in October 2016 of one count
of social security fraud, 42 U.S.C. § 408(a)(7)(B), acquitting him
of the other three counts charged.
Acosta moved for a judgment of acquittal at the close of
the government's case-in-chief, Fed. R. Crim. P. 29(a), and again
after the jury returned its verdict, id. at 29(c). This appeal is
from the district judge's refusal to preclude or overturn the
conviction. In evaluating Acosta's claim that the evidence was
insufficient to sustain a conviction, we review the evidence,
including all plausible inferences drawn therefrom, "in the light
most favorable to the verdict." United States v. Wyatt, 561 F.3d
49, 54 (1st Cir. 2009) (citation omitted).
1
Count One charged Acosta with Theft of Government Funds
(SNAP benefits), in violation of 18 U.S.C. § 641; Count Two with
Theft of Government Funds (MaineCare benefits), in violation of 18
U.S.C. § 641; Count Three with Social Security Fraud, in violation
of 42 U.S.C. § 408(a)(7)(B); and Count Four with Identity Theft,
in violation of 18 U.S.C. § 1028(a)(7).
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Federal and state agents in February 2016 executed a
search warrant at Acosta's apartment in Portland, Maine.
Interviewed outside the apartment but told he was free to leave,
Acosta stayed, first asserting that he was Kelvin Valle-Alicea,
born in Puerto Rico in 1984; and he gave as his social security
number the number assigned to Kelvin Valle-Alicea.
Once inside Acosta's apartment the agents found items
indicating that Acosta was not Valle, including a birth certificate
of a child born in 2009, which listed "Carlos Rafael Acosta-
Joaquin" as the father of the child and the mother as Patricia
Afthim. Acosta then admitted that he was a Dominican citizen and
former soldier in its army who had come to the United States
illegally. The lead agent then halted the interview, recited to
Acosta the warnings prescribed by Miranda v. Arizona and secured
a waiver of his rights. 384 U.S. 436, 444 (1966). Acosta further
admitted that he had paid to be smuggled into the United States
and bought from a third party for $400 a social security card and
birth certificate in the name of Kelvin Valle-Alicea. Acosta was
duly arrested and the indictment already described above followed.
Both Acosta and Afthim testified at trial; Acosta
admitted his real identity and nationality, his illegal entry into
the United States and his purchase of Valle's birth certificate
and social security card. He further admitted to repeatedly using
Valle's social security number and identity, including on his tax
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returns, employment paperwork, requests for public financial
assistance, motor vehicle registrations and, importantly for this
appeal, a form accompanying his payment to the Maine Judicial
Branch regarding a traffic infraction. The judge declined to debar
or set aside the jury's conviction and later sentenced Acosta to
fourteen months in prison. This appeal followed.
The statute in question, 42 U.S.C. § 408(a)(7)(B),
pertinently provides that a person who, (1) "for any . . .
purpose," (2) "with intent to deceive," (3) "falsely represents a
number to be the social security account number assigned by the
Commissioner of Social Security to him or to another person," (4)
"when in fact such number is not the social security account number
assigned . . . to him or to such other person" is guilty of a
felony for which punishment is prescribed. The count of conviction
charged that on or about September 22, 2015, Acosta used a social
security number on a Payment Notice Order filed with the Maine
Judicial Branch knowing that the number was not assigned to him.2
2 The Payment Notice Order form (Form MJBVB-3) is a notice
issued by the Violations Bureau of the Maine Judicial Branch
regarding traffic infractions. The form, issued to Acosta
following a traffic violation, was admitted as evidence at trial
and states that Acosta was required to pay a fine of $50 to the
Violations Bureau within thirty days. In signing the form, Acosta
confirmed that he read the order, understood its contents and
acknowledged its receipt. Most importantly, Acosta--having
apparently presented Valle's identification when stopped for the
traffic infraction--signed the form as Valle and listed the social
security number issued to Valle.
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On appeal, defendant's brief neatly summarizes his main
argument in the third paragraph of the argument section:
Defendant never falsely represented a number
to be the social security number assigned to
him, Carlos Rafael Acosta-Joaquin. Defendant
accurately represented that number to be the
social security number assigned to Valle,
which it was.
The government says that the defense did not raise this
argument below and, by only raising "specific sufficiency
arguments" in the Rule 29 motions--rather than "a general
sufficiency objection accompanied by specific objections"--Acosta
waived the argument. United States v. Foley, 783 F.3d 7, 12 (1st
Cir. 2015) (citations omitted). The government therefore urges us
to review only for clear and gross injustice, instead of conducting
the usual de novo review for preserved sufficiency challenges.
See United States v. Morel, 885 F.3d 17, 22 (1st Cir. 2018)
(citations omitted).
To simplify matters, we will assume for purposes of this
opinion that the argument was preserved; if not preserved, this
court would still be left with the underlying issue of whether
error occurred at all and, if so, how plain or unjust. Nothing in
this detour would alter the result: the defense's reading, taking
advantage of a line of text that is perhaps ambiguous if read
literally and out of context, is so patently unsound that it
deserves to be refuted outright and buried forever.
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There is a contemporary academic dispute about the
proper rules and techniques for the reading of statutes, including
the many so-called precepts (e.g., the rule of lenity). But the
central notion that begins with language but takes account of
purpose where purpose can be discerned is centuries old, and the
precepts--frequently pointing in different directions--are more
often used to justify than to control the outcome. See generally
Victoria Nourse, Misreading Law, Misreading Democracy (Harvard
Univ. Press 2016). Above all, the critical element in judging is
judgment--usually shaped and derived by the experiences of life.
Here, the defense's reading of the statute fights against the most
natural reading of the text, and does so in favor of a reading
that no legislator in his or her right mind could have intended.
When Acosta tendered Valle's social security number on
September 22, 2015, Acosta was representing that he--the
individual signing the Payment Notice Order form--had been
assigned that social security number. That was untrue since the
number had been assigned by the Social Security Administration to
another individual. The statutory conditions were all met: the
jury could readily infer an intent to deceive and could hardly
doubt knowledge on Acosta's part that the number had not been
assigned to Acosta, making it a false representation. This was as
clean and complete a violation as one can imagine.
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The defense says that Acosta truthfully represented that
the social security number provided on the form belonged to Valle.
Acosta did nothing of the kind. Acosta falsely tendered the number
as assigned to him; and Acosta knew that it had not been assigned
to him but rather he had himself purchased it from a third party
in order to disguise his own identity and avoid deportation or
charges of illegal entry. Properly read as any rational legislator
would have intended, both the language and purpose of the statute
fit perfectly Acosta's conduct and his intent.
That the defense could argue otherwise results from a
drafting technique that sought to deal in one sentence with two
different possible misrepresentations. The first
misrepresentation--charged and found by the jury--was that Acosta,
"with intent to deceive, falsely represent[ed] a number to be the
social security account number assigned . . . to him . . . when in
fact such number is not the social security account number assigned
. . . to him." 42 U.S.C. § 408(a)(7)(B).
The second possible misrepresentation captured by the
statute would occur if, for example, Acosta had represented to a
public benefits office that the number assigned to Valle was the
number assigned to Acosta's spouse, who had authorized Acosta to
collect benefits on the spouse's behalf. This second situation
would be one in which an individual, "with intent to deceive,
falsely represent[ed] a number to be the social security account
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number assigned . . . to another person . . . when in fact such
number is not the social security account number assigned . . . to
such other person." Id. That Acosta avoided a lie that would
have violated the second target of the statute does not acquit him
from violating the first.
To support his statutory construction argument, the
defense directs us to United States v. Doe, 878 F.2d 1546 (1st
Cir. 1989). In Doe, this court did overturn a conviction under
the same statute, prior to its present redesignation, where a
defendant possessed a social security card bearing his name but
the number of another. Id. at 1553. However it did so not because
of the argument made in this case but because of other flaws:
First, the government apparently erred in describing the time and
place of the charged crime in the indictment, id. at 1552-54, and
second, there was a lack of evidence that the defendant had
"misused the card with 'intent to deceive'" because he only "handed
the card over to [the officer] when requested to do so after his
arrest," id. at 1554 (citation omitted).
Contrary to the defense brief, the statute sensibly read
is not "grevious[ly] ambigu[ous]." Muscarello v. United States,
524 U.S. 125, 139 (1998) (citations omitted). There are not "two
rational readings," McNally v. United States, 483 U.S. 350, 359
(1987) (superseded on other grounds), and the "plain meaning" of
the statute, when the purpose of the "or to another person"
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language is perceived, does not assist the defense at all, United
States v. Gordon, 875 F.3d 26, 33 (1st Cir. 2017); 42 U.S.C. §
408(a)(7)(B).
In short, the statutory language on which the defense
dwells forbids a lie Acosta did not tell; it does not excuse the
lie he told that was clearly proscribed. Happily, neither the
jury nor the district judge was confused by the over-condensed
statutory language, nor are we.
Affirmed.
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