United States v. De La Cruz

2016 | Cited 0 times | First Circuit | August 19, 2016

United States Court of Appeals For the First Circuit

No. 14-2132





Defendant, Appellant.


[Hon. Richard G. Stearns, U.S. District Judge]


Torruella, Selya and Thompson, Circuit Judges.

Eduardo Masferrer, with whom Masferrer & Associates, PC was on brief, for appellant. Robert E. Richardson, Assistant United States Attorney, with whom Carmen M. Ortiz, United States Attorney, was on brief, for appellee.

August 19, 2016

SELYA, Circuit Judge. In this criminal appeal, the

appellant strives to convince us that we ought to overturn his

convictions for theft of public money, use of a falsely obtained

social security number, and aggravated identity theft. We are not

persuaded: neither the appellant's quest for suppression of

evidence nor his challenge to the district court's jury

instructions has merit, and the record reveals that the

government's case rests on a durable foundation. Accordingly, we

affirm the judgment below.


We start with a sketch of the facts and the travel of

the case. To the extent that we rehearse the facts, whether here

or in greater detail in connection with our discussion of

particular issues, we take them in the light most favorable to the

jury's verdict, consistent with record support. See United States

v. Maldonado-García, 446 F.3d 227 , 229 (1st Cir. 2006).

The appellant's true name is Renato De La Cruz. The

appellant is a citizen of the Dominican Republic who entered the

United States illegally sometime in 1993. Not long after, he went

to New York City, where he paid a man $1,500 for identity documents

in the name of "Alberto Pena." These documents matched the

identity of a real Alberto Pena (also a native of the Dominican

Republic, who became a lawful permanent resident of the United


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Once the appellant had procured Pena's identity

documents, he was able to obtain a Dominican passport from the

Dominican embassy and a "green card" from the Immigration and

Naturalization Service. In December of 1994 — four days before

the real Pena applied for a social security number — the appellant

used Pena's name, date of birth, parentage, and alien number to

apply for and receive a social security number. Shortly

thereafter, the appellant — apparently nervous about his physical

proximity to the real Pena (who was residing in New York) — moved

away, eventually relocating to Massachusetts.

While in Massachusetts, the appellant worked

intermittently for a general contractor. At various times from

December of 2010 through October of 2012, the appellant received

unemployment benefits, including 21 weeks of federally-funded

extension benefits. Because an alien is eligible for such

unemployment benefits only if he is authorized to work in the

United States, the appellant had to use his social security number

to secure his benefits. The federally-funded benefits that the

appellant received amounted to $11,340, and the appellant does not

dispute that these benefits comprised public funds within the

purview of 18 U.S.C. § 641.

On December 18, 2012, U.S. Immigration and Customs

Enforcement (ICE) officers arrested the appellant. A federal grand

jury subsequently returned a three-count indictment charging him

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with theft of public money, in violation of 18 U.S.C. § 641 (count

1); use of a falsely obtained social security number to obtain

benefits, in violation of 42 U.S.C. § 408(a)(7)(A) (count 2); and

aggravated identity theft, in violation of 18 U.S.C. § 1028A (count

3). A superseding indictment tracked this three-count structure.

In due course, the appellant moved to suppress

statements made on the date of his arrest. Through a supplemental

motion, he also sought suppression of any physical evidence

gathered at that time. The government opposed these motions.

After an evidentiary hearing, the district court denied the

motions. See United States v. De La Cruz, No. 13-10022, 2014 WL

1515410 (D. Mass. Apr. 18, 2014). The appellant moved for

reconsideration, but to no avail. See United States v. De La Cruz,

No. 13-10022, 2014 WL 1796654 (D. Mass. May 5, 2014).

On June 25, 2014 — following a three-day trial — a jury

found the appellant guilty on all three counts. The appellant

filed a post-trial motion for judgment of acquittal under Federal

Rule of Criminal Procedure 29(c) as to counts 1 and 3, which the

district court rejected. See United States v. De La Cruz (De La

Cruz III), No. 13-10022, 2014 WL 3925497 (D. Mass. Aug. 12, 2014).

The court sentenced the appellant to concurrent one-month terms of

immurement on the first two counts and a consecutive 24-month term

of immurement on count 3. This timely appeal followed.

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We divide our discussion of the issues into three

segments, corresponding to the components of the appellant's

asseverational array.

A. Suppression.

To place the suppression issues into perspective, we

think it useful to embellish the barebones account provided above.

In the process, we accept the facts as supportably found by the

district court. See United States v. Romain, 393 F.3d 63 , 66 (1st

Cir. 2004).

On December 18, 2012, a supervisory ICE officer, Andrew

Graham, accompanied by fellow ICE officers, sought to arrest the

appellant as a person unlawfully present in the United States.

Because the appellant was the subject of an ongoing Department of

Labor (DOL) criminal investigation, a DOL agent and a

representative of the Social Security Administration also went


The cadre of officers and agents proceeded to an

apartment building in Salem, Massachusetts, believing that the

appellant resided there with a girlfriend (Mayra Espinal). Graham

and another ICE officer went to the front door of Espinal's

apartment. When the appellant came to the door, Graham — speaking

across the threshold — employed a ruse and told him (falsely) that

the officers were concerned that he might have a gun. The

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appellant consented to a frisk and told officers that they could

enter the apartment. Once inside, Graham arrested the appellant.

After retrieving additional clothing for the appellant,

the officers escorted the appellant into a hallway outside the

apartment. They were joined by Christina Rosen, the DOL agent.

Graham asked the appellant whether he preferred his Miranda

warnings, see Miranda v. Arizona, 384 U.S. 436 , 479 (1966), to be

read to him in English or in Spanish. The appellant elected to

hear them in English. Graham then read the appellant his Miranda

rights from a preprinted card. Standing in the hallway, the

appellant made a number of admissions: he related his true name,

acknowledged that he had no lawful right to be in the United

States, and disclosed his purchase of Pena's identity information.

Roughly 20 minutes after being given his Miranda

warnings, the appellant was transported to the ICE office in

Burlington, Massachusetts. Upon his arrival, he was processed

administratively, and an ICE officer explained that he was under

arrest for immigration violations and that he would have to appear

before an immigration judge to determine his status. To that end,

he was given a notice to appear in the immigration court, which

explained, inter alia, his right to be represented by an attorney

at no expense to the government. The officer made it clear,

however, that he was only serving the appellant with paperwork

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anent the immigration matter and that other officers would process

him with respect to criminal charges.

After his administrative processing concluded, the

appellant was taken to a different interview room.1 Agent Rosen

introduced herself and explained that a criminal investigation was

being conducted into the appellant's suspected theft of identity

and misuse of public funds. She further explained that the agents

in attendance were criminal investigators, not immigration

officers. The appellant received his Miranda rights once again,

and he signed a form acknowledging that he understood those rights

and was willing to waive them.

The appellant proceeded to make a number of admissions.

He recounted how he had obtained the Pena identity documents;

admitted that he used these documents to get a passport, green

card, and social security number; and described how, as Pena, he

had collected unemployment benefits in Massachusetts. Those

admissions were memorialized in a statement transcribed by Agent

Rosen and signed by the appellant.

Against this factual backdrop, the appellant musters

three arguments in support of his assertion that the district court

erred in denying suppression. First, he submits that the ICE

1The immigration officer who processed the appellant administratively was not present in this room, nor did he participate in the interview that ensued.

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officers acted outside their authority when they arrested him

without an administrative arrest warrant and, thus, his subsequent

statements should be suppressed as the fruit of an illegal arrest.

Second, he submits that the officers' warrantless entry into the

apartment offended the Fourth Amendment because he did not validly

consent to their entry. Finally, he submits that his Miranda

waiver at the ICE office should be disregarded because he was

provided with intervening and conflicting administrative warnings.

We address these arguments sequentially, pausing first, however,

to frame the standard of review.

In reviewing the denial of a suppression motion, we assay

the district court's conclusions of law de novo and its factual

findings, including its credibility determinations, for clear

error. See United States v. Feliz, 794 F.3d 123 , 130 (1st Cir.

2015). The fact-based aspect of this review is "highly

deferential." United States v. Floyd, 740 F.3d 22 , 33 (1st Cir.

2014). "If any reasonable view of the evidence supports the denial

of a motion to suppress, we will affirm the denial." United States

v. Boskic, 545 F.3d 69 , 77 (1st Cir. 2008).

The appellant's first argument, which centers on the

lack of an administrative arrest warrant, emanates from 8 U.S.C.

§ 1357(a)(2). That statute authorizes an immigration officer to

effect a warrantless arrest only in two situations: when an alien

"in [the officer's] presence or view is entering or attempting to

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enter the United States in violation of any law or regulation made

in pursuance of law regulating the admission, exclusion,

expulsion, or removal of aliens"; or when the officer "has reason

to believe that the alien . . . is in the United States in violation

of any such law or regulation and is likely to escape before a

warrant can be obtained for his arrest."2 The appellant asserts

that the ICE officers who arrested him violated these strictures,

and that the remedy for that violation is suppression of all the

statements that he subsequently made.

We assume, albeit without deciding, that the ICE

officers who effected the arrest exceeded their federal statutory

mandate. Even so, the appellant's argument is foreclosed by a

solid phalanx of case law.

"Suppression of evidence is strong medicine, not to be

dispensed casually." United States v. Adams, 740 F.3d 40 , 43 (1st

Cir.), cert. denied, 134 S. Ct. 2739 (2014). Normally, a violation

of federal or state law triggers the exclusionary rule only if the

evidence sought to be excluded "ar[ises] directly out of statutory

violations that implicate[] important Fourth and Fifth Amendment

2Along the same lines, 8 C.F.R. § 287.8(c)(2)(ii) provides that "[a] warrant of arrest shall be obtained except when the designated immigration officer has reason to believe that the person is likely to escape before a warrant can be obtained." For present purposes, the regulation adds nothing to the statutory proviso and, thus, we make no further reference to it.

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interests." Sanchez-Llamas v. Oregon, 548 U.S. 331 , 348 (2006);

see United States v. Caceres, 440 U.S. 741 , 751-55 (1979).3 As a

result, "[t]he cases in which the Supreme Court has approved a

suppression remedy for statutory violations are hen's-teeth rare."

Adams, 740 F.3d at 43.

We have said before, and today reaffirm, that a statutory

violation "untethered to the abridgment of constitutional rights"

is insufficient to justify suppression. Id. The case at hand

falls squarely within the contours of that premise: the failure to

obtain an administrative arrest warrant as contemplated by 8 U.S.C.

§ 1357, without more, does not justify the suppression of evidence.

See United States v. Abdi, 463 F.3d 547 , 556-57 (6th Cir. 2006).4

This brings us to the appellant's second argument: that

suppression was warranted because he never validly consented to

the ICE officers' entry into the apartment. That argument is dead

3 We say "normally" because a statutory violation would also animate the exclusionary rule when the statute itself mandates suppression as a remedy. See, e.g., United States v. Giordano, 416 U.S. 505 , 524-29 (1974). Because the statute at issue here — 8 U.S.C. § 1357 — does not provide for an independent suppression remedy, this exception to the usual rule is inaccessible to the appellant.

4 Because the appellant does not argue that his arrest independently violated his constitutional rights apart from the statutory violation, we need not address whether his arrest was reasonable under the Fourth Amendment. See Ortiz v. Gaston Cty. Dyeing Mach. Co., 277 F.3d 594 , 598 (1st Cir. 2002). In all events, as we discuss infra, the officers had probable cause to effect the arrest.

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on arrival: the appellant has failed to specify what evidence he

seeks to suppress as a result of the ICE officers' allegedly

invalid entry into the apartment. Nor does this seem to be an

oversight: at trial, the government introduced no physical

evidence derived from within the apartment. The appellant must be

arguing, then, for suppression of the statements that he made in

the outside hallway of the apartment building and at the ICE

office. But he is whistling past the graveyard: regardless of the

validity vel non of the appellant's consent to the ICE officers'

entry into the apartment, that entry has no bearing on the

admissibility of statements that the appellant later made outside

the apartment. We explain briefly.

In New York v. Harris, the Supreme Court declined to

apply the exclusionary rule to statements made by a defendant at

a police station after the police had effected an unconstitutional

arrest in the defendant's home (which the police had entered

without either a warrant or the defendant's consent). See 495

U.S. 14 , 16, 21 (1990). The Court's reasoning started with a frank

recognition of the rule prescribed in Payton v. New York, 445 U.S.

573 (1980): "that the Fourth Amendment prohibits the police from

effecting a warrantless and nonconsensual entry into a suspect's

home in order to make a routine felony arrest." 495 U.S. at 16.

After acknowledging that the defendant's arrest transgressed both

the Payton rule and the Fourth Amendment, however, the Harris Court

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held that suppression of the defendant's statements was not

compelled. The Court explained that "the rule in Payton was

designed to protect the physical integrity of the home; it was not

intended to grant criminal suspects . . . protection for statements

made outside their premises where the police have probable cause

to arrest the suspect for committing a crime." Id. at 17. Fairly

viewed, the defendant's statements at the police station were

neither "the product of being in unlawful custody" nor "the fruit

of having been arrested in the home rather than someplace else."

Id. at 19.

So it is here. The ICE officers indisputably had

probable cause to arrest the appellant both administratively (for

being an alien unlawfully present in the United States) and

criminally (for aggravated identity theft and related offenses).

Indeed, the appellant, who has fought tooth and nail on a variety

of other points, has not contested the existence of probable cause.

It follows inexorably — as night follows day — that the appellant

was lawfully in the officers' custody when he made the inculpatory

statements outside the confines of his home.

Moreover, those statements bore no relation to the

underlying illegality that he alleges (that is, the ostensibly

nonconsensual entry into his home). After all, the appellant was

neither questioned about anything observed in the apartment nor

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confronted with any evidence found there.5 In a nutshell, then,

the appellant's inculpatory statements were not the product of

unlawful custody, nor were they the fruit of the appellant having

been arrested in his home (rather than somewhere else). Neither

the absence of an administrative arrest warrant nor the lack of

valid consent could change that equation.6

We turn next to the appellant's third suppression

argument, which seeks exclusion of the statements that he made at

the ICE office in Burlington. He contends that his Miranda waiver

at Burlington was neither knowing nor intelligent since he was

given an earlier administrative warning that differed in an

important respect from the standard Miranda warning. The district

court rejected this contention, and so do we.

Specifically, the appellant points to the portion of the

administrative warning in which he was advised that he might have

to pay for legal representation should he desire the services of

5 The appellant's subsequent statements at the ICE office were even further removed — temporally, spatially, and in every other arguably relevant sense — from the warrantless arrest.

6 Laboring to blunt the force of this reasoning, the appellant relies on the Supreme Court's decision in Brown v. Illinois, 422 U.S. 590 , 602-03 (1975). This reliance is mislaid. In Brown, the arrest was effected without either a warrant or probable cause. See id. at 591. By contrast, probable cause unarguably supported the warrantless arrest here. Brown, therefore, offers no succor to the appellant.

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an attorney.7 This advice conflicted with his broader right to

appointed counsel under Miranda and, in his view, "[r]equiring

someone to sort out such [conflicting warnings] is an unfair burden

to impose on an individual already placed in a position that is

inherently stressful." United States v. San Juan-Cruz, 314 F.3d

384 , 388 (9th Cir. 2002).

San Juan-Cruz is not in point.8 There, the defendant,

following his arrest by Border Patrol agents, was advised of his

rights in connection with the administrative arrest. See id. at

386. Pertinently, an agent told the defendant that he had the

right to have counsel present during questioning, but not at the

government's expense; and that any statements he made could be

used against him for purposes of removal. See id. Shortly

thereafter and in the same location, the same agent read the

defendant his Miranda rights. See id. The defendant then

proceeded to make a series of incriminating statements. See id.

7 The notice to appear provided to the appellant advised him that "[i]f you so choose, you may be represented in this [immigration] proceeding, at no expense to the Government, by an attorney or other individual authorized and qualified to represent persons before the Executive Office for Immigration Review . . . . A list of qualified attorneys and organizations who may be available to represent you at no cost will be provided with this notice." A notice of rights provided contemporaneously contained similar language.

8 The present case does not require us to determine whether San Juan-Cruz was correctly decided, and we leave that issue for another day.

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at 387. The Ninth Circuit held that, under these circumstances,

the Miranda warnings were insufficiently clear. See id. at 389.

The court explained that:

When a warning, not consistent with Miranda, is given prior to, after, or simultaneously with a Miranda warning, the risk of confusion is substantial, such that the onus is on the Government to clarify to the arrested party the nature of his or her rights under the Fifth Amendment. The Government should not presume after having read two sets of contradictory warnings to an individual that he or she possesses sufficient legal or constitutional expertise to understand what are his or her rights under the Constitution.


This case is a horse of a different hue. Here, law

enforcement personnel read the appellant his Miranda rights in his

preferred language even before he received any administrative

warnings. Later, the appellant was given both administrative

warnings and Miranda warnings, but under circumstances that

differed materially from those in San Juan-Cruz. First — unlike

in San Juan-Cruz — the appellant already had received Miranda

warnings (while at the apartment building) and made what amounted

to a full confession before any administrative warnings were given.

Second — unlike in San Juan-Cruz — different officials administered

the different warnings. Third — unlike in San Juan-Cruz — the

agent who administered the subsequent set of Miranda warnings took

care to explain to the appellant that she was a criminal

investigator and that she and her colleagues were distinct from

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the ICE officers handling the administrative case. Fourth — unlike

in San Juan-Cruz — there were both spatial and temporal gaps

between the administrative warnings and the Miranda warnings (that

is, they were administered in different rooms at different times).

On this record, the government handily carried its

burden of distinguishing the appellant's administrative rights

from his criminal rights and clarified to him the nature and extent

of his Fifth Amendment rights before he confessed to the DOL

criminal investigator. Simply put, the risk of confusion that

troubled the San Juan-Cruz court did not exist here. We hold,

therefore, that the district court did not clearly err in finding

that the appellant was not confused or otherwise unfairly

prejudiced by the presentation of the conflicting warnings.

To say more about the matter of suppression would be

pointless. Based on what we already have said, it is pellucid

that the district court did not err in turning aside the

appellant's attempts to suppress evidence.

B. Sufficiency of the Evidence.

The appellant contends that the government failed to

prove beyond a reasonable doubt that he was guilty either of theft

of public funds (count 1) or aggravated identity theft (count 3).

After glancing at the legal landscape, we address these contentions


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Where, as here, a defendant files a timely post-verdict

motion for judgment of acquittal under Federal Rule of Criminal

Procedure 29(c), his rights are fully preserved. See United States

v. Castro-Lara, 970 F.2d 976 , 980 (1st Cir. 1992). Thus, we review

the denial of his motion for judgment of acquittal de novo. See

United States v. Kuc, 737 F.3d 129 , 134 (1st Cir. 2013). In the

course of that review, we take the evidence, both direct and

circumstantial, in the light most hospitable to the government and

draw all reasonable inferences in the government's favor. See id.

In this endeavor, "we must ask whether 'a rational factfinder could

find, beyond a reasonable doubt, that the prosecution successfully

proved the essential elements of the crime.'" Id. (quoting United

States v. Valerio, 676 F.3d 237 , 244 (1st Cir. 2012)). We do not

"weigh the evidence or make credibility judgments; these tasks are

solely within the jury's province." United States v. Hernández,

218 F.3d 58 , 64 (1st Cir. 2000).

It is against this backdrop that we evaluate the

appellant's sufficiency challenges to counts 1 and 3 (taking those

counts in reverse order).

1. Aggravated Identity Theft (Count 3). Under the

statute of conviction, 18 U.S.C. § 1028A(a)(1), a person is guilty

of aggravated identity theft if, "during and in relation to any

felony violation enumerated in subsection (c)," that person

"knowingly transfers, possesses, or uses, without lawful

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authority, a means of identification of another person." Here,

the government charged theft of public money (unemployment

benefits), in violation of 18 U.S.C. § 641, as the underlying

felony. The parties agree that such an offense is one of the

crimes enumerated in section 1028A(c).

The superseding indictment charged the appellant with

using two "means of identification" in committing theft of public

funds: Pena's name and date of birth. The appellant asseverates

that the evidence was insufficient to show that these "means of

identification" appropriated the specific identity of the real

Pena. We disagree.

"Means of identification" is a term of art. Congress

has defined that term to mean, in relevant part,

any name or number that may be used, alone or in conjunction with any other information, to identify a specific individual, including any—

(A) name, social security number, date of birth, official State or government issued driver's license or identification number, alien registration number, government passport number, employer or taxpayer identification number.

18 U.S.C. § 1028(d)(7). Given this definition, the record here is

ample to ground a finding that the appellant committed aggravated

identity theft.

The evidence introduced at trial established that

unemployment benefits are public funds and that an individual

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seeking such benefits must provide biographical information —

including his name and date of birth — in his application. So,

too, the evidence established that the appellant used both Pena's

name and date of birth in applying for (and receiving) unemployment

benefits. Based on this evidence, a rational jury could have found

beyond a reasonable doubt — as this jury did — that the appellant

committed aggravated identity theft.

Our decision in Kuc is instructive. There, the defendant

used the full name of the victim and the name of the victim's

company to ship stolen computer parts to multiple addresses. See

Kuc, 737 F.3d at 134-35. We held that these two "means of

identification" were sufficient "to identify a specific

individual" — the victim — within the meaning of 18 U.S.C.

§ 1028(d)(7). See id. at 135. On that basis, we upheld the

defendant's conviction for aggravated identity theft. See id.

In an effort to put the genie back into the bottle, the

appellant, ably represented, spins an argument that is too clever

by half: though acknowledging that he used Pena's purloined name

and date of birth in applying for unemployment benefits, he

suggests that those items, singly or in the ensemble, did not

constitute a "means of identification" within the meaning of 18

U.S.C. § 1028A(a)(1). To support this suggestion, he baldly

asserts that "the evidence produced at trial established that the

name and date of birth were part of a fictional identity that

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included an address, an employer and a social security number that,

taken together, did not identify the true Alberto Pena of New York

for purposes of obtaining unemployment benefits."

This approach gets the appellant high marks for

creativity, but a failing grade on the merits. To begin, the

appellant's own admissions undermine his present assertion. In

the statement that he dictated and signed at the ICE office in

Burlington (which was introduced at trial), the appellant

confessed that he knew he was wrongly appropriating Pena's

identity. In his own words, "I was scared that Alberto Pena would

find out I was using his identity" and "I know using someone else's

identity is wrong and illegal. I used Alberto Pena's identity to

stay in the country & to work & help my family."

We add, moreover, that the case law gives no sustenance

to the appellant's construct. In United States v. Savarese, we

rejected the premise that "[a] name . . ., without more, cannot

constitute a 'means of identification' for purposes of aggravated

identity theft." 686 F.3d 1 , 7 (1st Cir. 2012). To the contrary,

"[t]he language of § 1028 . . . plainly contradicts this theory,

defining a 'means of identification' as 'any name or number that

may be used, alone or in conjunction with any other information,

to identify a specific individual, including any . . . name, social

security number, date of birth, [or] official State or government

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issued driver's license or identification number . . . .'" Id.

(quoting 18 U.S.C. § 1028(d)(7)(A)).

The appellant tries to wriggle out from under Savarese.

He makes much of the fact that he was using a social security

number different from the number assigned to the real Pena. This

distinction, however, does not make a dispositive difference: the

appellant cannot avoid responsibility under section 1028A(a)(1)

simply by attaching a different social security number to the true

Pena's name and date of birth.9 In the last analysis, the statutory

term "means of identification" does not require that the

information used to identify the specific individual whose

identity has been stolen must match that individual in every

detail. Any other construction of the statute would be fatuous:

it would enable a defendant to avoid responsibility under section

1028A(a)(1) by the simple expedient of using a single piece of

information that does not coincide with the victim.

9 The genesis of the appellant's social security number furnishes further evidence that the appellant misappropriated Pena's identity. The jury had available to it the appellant's application for a social security number, in which the appellant used Pena's name, date of birth, place of birth, and parentage. In addition, the appellant used his own green card (obtained under false pretenses), which contained Pena's alien number. As the district court perspicaciously noted: "any lingering doubt as to the association of the name with the true Alberto Pena's identity would have been dispelled by tracing the social security number used by [the appellant] to the original application for the number." De La Cruz III, 2014 WL 3925497 , at *1.

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The appellant makes no headway by hawking the Fourth

Circuit's decision in United States v. Mitchell, 518 F.3d 230 (4th

Cir. 2008), for the proposition that "non-unique identifiers" are

"insufficient to identify a single, unique individual." In that

case, the evidence, taken in the light most favorable to the

government, showed only that the defendant had taken the name

"Marcus Jackson" from a telephone book. See Mitchell, 518 F.3d at

233. Noting that the defendant had used "a hopeless muddle of

non-matching and matching information," the court held that the

defendant's mere use of the name "Marcus Jackson" was insufficient

to identify a specific individual. Id. at 236. It was careful to

explain, however, that when "a non-unique identifier is coupled

with other information to identify a specific individual, 'a means

of identification of another person' is created." Id. at 234.

That is exactly what happened here: the appellant used Pena's name

and date of birth in applying for unemployment benefits, and those

two pieces of information (taken in conjunction with one another)

were sufficient to identify a specific individual — the real Pena.

See 18 U.S.C. § 1028(d)(7).

2. Theft of Public Funds (Count 1). The appellant

argues that the government's proof was insufficient to establish

that he stole money with the intent of depriving the United States

of the use of that money and, therefore, that the district court

erred in denying his motion for judgment of acquittal as to count

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1. In support, he asserts that he "incorrectly, but genuinely,

believed that because he worked and paid into the unemployment

system under the Social Security number he was issued, he was

therefore entitled to receive unemployment benefits until he could

resume working to support himself and his family."

This argument lacks force. The appellant never

testified, and the record is utterly devoid of any evidence as to

the appellant's innocent state of mind. The evidence before the

jury pointed in the opposite direction: the DOL agent who

interviewed the appellant in Burlington testified that the

appellant admitted that he knew "100 percent" that his receipt of

unemployment benefits was a crime and that he "didn't earn" those

benefits. These admissions were enough to enable the jury to

conclude that the appellant acted with the necessary criminal


The appellant makes little progress by pointing out that

he paid income tax on the unemployment benefits that he received.

Paying taxes on ill-gotten gains is as consistent with a desire

that a crime go undetected as it is with a lack of criminal intent.

10 The appellant suggests that he made these admissions in reference to his unlawful presence in the United States. That suggestion is fanciful: the statements were made in the course of an interview by an agent who had made pellucid that she was a DOL criminal investigator, not an immigration officer; and the context gave the jury ample reason to think that the statements referred to the appellant's collection of unemployment benefits.

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C. Jury Instructions.

The last leg of our journey takes us to the appellant's

claim that the district court's jury instructions were faulty.

The standard of review for claims of instructional error is not

monolithic: such claims, if preserved, are reviewed either de novo

or for abuse of discretion, depending on the nature of a particular

claim. When the claim of error involves a question as to the legal

sufficiency of a trial court's charge to the jury, such as a claim

that the court omitted a legally required instruction or gave an

instruction that materially misstated the law, our review is de

novo. See, e.g., United States v. Nascimento, 491 F.3d 25 , 33

(1st Cir. 2007); Sanchez-Lopez v. Fuentes-Pujols, 375 F.3d 121 ,

133 (1st Cir. 2004). When the claim of error focuses on the trial

court's word choices, however, our review is for abuse of

discretion. See, e.g., United States v. Hall, 434 F.3d 42 , 56

(1st Cir. 2006); Zimmerman v. Direct Fed. Credit Union, 262 F.3d

70 , 78-79 (1st Cir. 2001).

We summed up these varying standards of review in Elliott

v. S.D. Warren Co., 134 F.3d 1 (1st Cir. 1998), in which we stated

that "[a] trial court is obliged to inform the jury about the

applicable law, but, within wide limits, the method and manner in

which the judge carries out this obligation is left to his or her

discretion." Id. at 6. Sometimes, a reviewing court may have to

employ these varying standards of review sequentially to resolve

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a single claim of instructional error (for example, reviewing de

novo to determine that a challenged instruction is legally correct

and then reviewing for abuse of discretion to weigh the court's

choices about how best to communicate that legal principle). See,

e.g., United States v. DeStefano, 59 F.3d 1 , 2 (1st Cir. 1995).

With these standards in mind, we turn to the appellant's

claim of instructional error. That claim, which was preserved

below, zeros in on the district court's charge with respect to the

second element of aggravated identity theft. The court told the

jury that it had to find that "in committing the offense, the

defendant used a means of identification of another." It added

that the jury had to "find that the means of identification played

a role in committing the offense of theft of money."

The appellant posits that the phrase "played a role"

impermissibly diluted the government's burden of proving this

element of aggravated identity theft. In his view, the district

court "was required . . . to state that the 'means of

identification' used must cause or be essential to the commission

of the offense."

This view is meritless. 18 U.S.C. § 1028A(a)(1) imposes

criminal liability on a person who "during and in relation to [an

enumerated crime], knowingly . . . uses, without lawful authority,

a means of identification of another person." The statute nowhere

says that the means of identification must cause or be essential

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to the enumerated crime — nor is there any valid reason for us to

read such a requirement into the statute.

In all events, a district court is entitled to some

latitude in deciding how best to communicate legal principles to

jurors. See United States v. Paniagua-Ramos, 251 F.3d 242 , 245

(1st Cir. 2001). The court below did not exceed that latitude.

Its "plays a role" language closely mirrors the statutory language

("during and in relation to"), at least in practical effect, and

the court neither erred nor abused its discretion in employing

this phraseology.

III. CONCLUSION We need go no further. For the reasons elucidated above, the judgment is


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