United States of America v. Carlos Rafael Acosta-Joaquin

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.

Affirmed