UNITED STATES оf America, Appellee, v. Renato DE LA CRUZ, Defendant, Appellant.
No. 14-2132
United States Court of Appeals, First Circuit.
August 19, 2016
Before TORRUELLA, SELYA and THOMPSON, Circuit Judges.
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 judgmеnt below.
I. BACKGROUND
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 а native of the Dominican Republic, who became a lawful permanent resident of the United States).
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 physiсal 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 appellаnt does not dispute that these benefits comprised public funds within the purview of
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 with theft of public money, in violation of
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.
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
II. ANALYSIS
We divide our discussion of the issues into three segments, corrеsponding 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 represеntative of the Social Security Administration also went along.
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 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, 86 S.Ct. 1602, 16 L.Ed.2d 694 (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.
Rоughly 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
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 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 аrrest. 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 supрorts 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
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, 573 U.S. —, 134 S.Ct. 2739, 189 L.Ed.2d 775 (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 interests.” Sanchez-Llamas v. Oregon, 548 U.S. 331, 348, 126 S.Ct. 2669, 165 L.Ed.2d 557 (2006); see United States v. Caceres, 440 U.S. 741, 751-55, 99 S.Ct. 1465, 59 L.Ed.2d 733 (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
This brings us to the appellant‘s second argument: that suppression was warrantеd because he never validly consented to the ICE officers’ entry into the apartment. That argument is dead 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 consеnt 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 defen-
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 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 statеments 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
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. 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 individu-
al 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 administrаtive 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 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
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 separately.
Where, as here, a defendant files a timely post-verdict motion for judgment of acquittal under
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,
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 Pеna. 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.
The evidence introduced at trial established that unemployment benefits are public funds and that an individual 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
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
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
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
The appellant makes no hеadway 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 mеans 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
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 1. In support, he asserts that he “incorrеctly, 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 intent.10
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 reviеwed 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 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.
In all events, a district court is entitled to some latitude in deciding how best to communicate legal principles to
III. CONCLUSION
We need go no further. For the reasons elucidated above, the judgment is
Affirmed.