United States Court of Appeals
For the First Circuit
No. 07-1363
UNITED STATES OF AMERICA,
Appellee,
v.
ELSA ODINA HERRERA-MARTINEZ,
a/k/a ROSANA ROLON-ALVARADO,
a/k/a ROSANA R. ALVARADO,
a/k/a ROSANA ROLON,
a/k/a ROSANA A. ROLON,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Patti B. Saris, U.S. District Judge]
Before
Lipez and Howard, Circuit Judges,
and DiClerico,* Senior District Judge.
Jeffrey B. Rubin for appellant.
Randall E. Kromm, Assistant United States Attorney, with whom
Michael J. Sullivan, United States Attorney, was on brief, for
appellee.
April 30, 2008
*
Of the District of New Hampshire, sitting by designation.
HOWARD, Circuit Judge. Elsa Odina Herrera-Martinez
("Herrera") was convicted by a jury of three counts stemming from
her use of personal information, including a Social Security
number, that did not belong to her in order to secure subsidized
housing under a federal program. She maintains that she cannot be
guilty of these offenses because her behavior does not constitute
a crime under the three statutes at issue. We do not read the
statutes as she does, and we affirm.
I. Facts
We rehearse the facts in the light most favorable to the
jury's verdict. United States v. Girouard, 2008 U.S. App. LEXIS
6481, at *7 (1st Cir. Mar. 28, 2008); United States v. Richardson,
515 F.3d 74, 76 (1st Cir. 2008). When defendants challenge the
denial of a motion for a judgment of acquittal, "we review the
evidence and all legitimate inferences which may be drawn therefrom
in the light most favorable to the government."1 United States v.
Olivo-Infante, 938 F.2d 1406, 1408 (1st Cir. 1991).
High Point Village, a housing development in Roslindale,
Massachusetts, provided low-income housing in two ways. First, it
operated a tier system providing below-market rent that varied
according to the tenant's income. Second, it operated a federally
funded rent subsidy program often referred to as Section 8 housing.
1
In this case, the facts are not much disputed.
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See 42 U.S.C. §§ 1437 et seq. There was a waiting list for this
second program because there were more income-eligible tenants than
Section 8 vouchers available. Tenants in the tier program were
automatically added to the waiting list for the Section 8 program
when their income qualified them for it. High Point Village then
automatically distributed vouchers, as they came available, to
tenants on the waiting list.
Herrera, an undocumented immigrant from the Dominican
Republic, took up residence at High Point Village, using the name
and identifying information (including the Social Security number)
of one Rosana Rolon Alvarado. Herrera also used a Massachusetts
identification card bearing her own picture but Alvarado's
information. When Herrera reported a drop in her income, she
became eligible for the Section 8 subsidy, but only because she was
using the identity of Alvarado, an American citizen. (As an
undocumented alien, Herrera could not qualify for federally
subsidized housing under her real identity, regardless of her
income.)
In April 2005, a Section 8 voucher was automatically
assigned to Herrera. In honoring the voucher, the United States
Department of Housing and Urban Development paid more than 85% of
her rent for the next thirteen months. Soon after HUD began paying
part of Herrera's rent, a federal official became suspicious that
Herrera was not who she claimed to be. In January 2006 a HUD
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special agent attended, undercover, a "recertification" proceeding
conducted by High Point Village; he observed Herrera filling out
forms certifying she was a United States citizen and using
Alvarado's information.
Herrera was arrested in May 2006, after she moved out of
High Point Village. The three-count indictment charged her with
use of another's Social Security number, 42 U.S.C. § 408(a)(7)(B);
knowingly converting public money or property, 18 U.S.C. § 641; and
aggravated identity theft, 18 U.S.C. § 1028A. Herrera consistently
asserted that her conduct did not fall under any of these three
statutes. She moved to quash the indictment and dismiss the case
before trial and moved for directed verdict after presentation of
the government's evidence. She raises the same issues on appeal.
II. Standard of Review
In reviewing a motion for directed verdict, we resolve
legal questions de novo. United States v. Jimenez, 507 F.3d 13, 19
(1st Cir. 2007). Delineating the scope of the elements of a given
offense presents such legal questions. Id. (whether deceased
persons are encompassed in the word "person" as used in 18 U.S.C.
§ 1028A reviewed de novo); United States v. McFarland, 445 F.3d 29,
31 (1st Cir. 2006) (definition of "actual physical control" of a
motor vehicle in 36 C.F.R. § 4.23(a) subject to de novo review).
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III. Discussion
Herrera claims that none of the three statutes under
which she was convicted apply to the conduct of which she was
accused. First, she claims that conviction under 18 U.S.C. § 641
requires proof of elements not present in her case. Next, she
claims that 42 U.S.C. § 408(a)(7)(B) prohibits the use of a false
Social Security number only to obtain a Social Security payment,
not to obtain other benefits. Finally, she says that because she
is innocent of the first two charges as a matter of law, she must
be acquitted of aggravated identity theft because it requires as a
predicate one of the other two offenses. We address the arguments
pertaining to each statute in turn.
A. 18 U.S.C. § 641
Section 641 of Title 182 was drafted "to collect from
scattered sources crimes so kindred as to belong in one category":
those that prohibit unlawful taking from the government.
Morissette v. United States, 342 U.S. 246, 266-67 (1952). Herrera
2
The relevant portion reads:
Whoever embezzles, steals, purloins, or
knowingly converts to his use or the use of
another, or without authority, sells, conveys
or disposes of any record, voucher, money, or
thing of value of the United States or of any
department or agency thereof, or any property
made or being made under contract for the
United States or any department or agency
thereof . . . Shall be fined under this title,
or imprisoned . . . or both . . . .
18 U.S.C. § 641.
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levels three challenges at her conviction under this statute.
First, she argues that the statute requires the government to prove
"asportation," the carrying-away element of common law larceny.
Next, she claims that in order to obtain a conviction under § 641,
the government is required to prove an actual loss, and here it did
not. Finally, Herrera argues that what she obtained was a
residential lease, not a "thing of value of the United States." We
find none of these arguments persuasive.
Herrera argues that each of the older crimes from which
§ 641 was forged contained as an element asportation, a physical
carrying away, and that she has not carried anything away from the
government. But the enactment of § 641 did more than aggregate
existing crimes. The statute also added "knowingly converts," to
the list of proscribed activities, as well as "steals," words that
do not implicate the common law definition of larceny. See id.
This, Justice Jackson wrote for the Court, was an attempt to close
gaps between the original common law offenses.
What has concerned codifiers of the
larceny-type offense is that gaps or crevices
have separated particular crimes of this
general class and guilty men have escaped
through the breaches. The books contain a
surfeit of cases drawing fine distinctions
between slightly different circumstances under
which one may obtain wrongful advantages from
another's property. The codifiers wanted to
reach all such instances.
Id.; see also United States v. Crutchley, 502 F.2d 1195, 1201 (3d
Cir. 1974) (citing Morissette and holding that larceny by trick is
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encompassed within § 641). Where Congress has gone beyond the
common law terms used to define a crime, we will not presume the
crime is limited to its common law contours.
Moreover, reading the statute to require asportation
would perforce limit § 641 to tangible property, as intangibles
cannot be carried away. This reading of the statute is too narrow
and is contradicted by the great weight of authority. See United
States v. Barger, 931 F.2d 359, 368 (6th Cir. 1991) ("[I]nformation
itself is enough to meet the 'thing of value' element of the
statute."); United States v. May, 625 F.2d 186, 192 (8th Cir. 1980)
("'thing of value' . . . was the flight time itself" where National
Guard planes were used for personal flights); United States v.
Girard, 601 F.2d 69, 71 (2d Cir. 1979) ("Although the content of a
writing is an intangible, it is nonetheless a thing of value.");
see also United States v. Collins, 56 F.3d 1416, 1419 (D.C. Cir.
1995) ("Congress intended to enact a broad prohibition against the
misappropriation of anything belonging to the national government,
unrestrained by the fine and technical distinctions of the common
law."). We hold that asportation is not required in every
conviction under 18 U.S.C. § 641.
Herrera also contends that § 641 requires the government
to prove an actual loss. We disagree. For this proposition,
Herrera cites United States v. Collins, 464 F.2d 1163 (9th Cir.
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1972) (2-1).3 That case concerned a warrant drawn up by a
municipal agency, and cashed by someone who stole it; the Ninth
Circuit determined that since the funds released by the bank were
bank funds, not government funds, and the warrant itself was not
the property of the government, the government had failed to prove
a loss and the defendant was entitled to acquittal. First, Collins
is inapplicable to the facts of this case; here, the payments made
by HUD were government funds. But more importantly, Collins is not
the law of this circuit. See United States v. Santiago, 729 F.2d
38, 40 (1st Cir. 1984) ("The statute, however, does not require a
showing that the United States was prejudiced. It merely requires
the government to show that a 'thing of value of the United States'
has been knowingly received, concealed or retained by the accused
with improper intent . . . ." (quoting 18 U.S.C. § 641)). Nor, for
that matter, has Collins been followed by any other circuit. See
United States v. Milton, 8 F.3d 39, 44 (D.C. Cir. 1993); United
States v. Scott, 784 F.2d 787, 791 (7th Cir. 1986) (per curiam)
(collecting cases in the Seventh Circuit); Barnes, 761 F.2d at 1036
3
Herrera also cites United States v. Evans, 572 F.2d 455 (5th
Cir. 1978), despite the fact that the Fifth Circuit later expressly
repudiated that case's position that proof of actual loss is
required under § 641. See United States v. Barnes, 761 F.2d 1026,
1036 (5th Cir. 1985) ("The legislative history of section 641 as
well as the purpose of the statute both lead us to hold that the
government need not prove it suffered an actual property loss in
order to establish a violation of section 641.").
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(Fifth Circuit). We doubt that we are free to revisit this
determination, and in any event decline to do so.4
Finally, Herrera argues that obtaining subsidized housing
is not a violation of 18 U.S.C. § 641 because the residential lease
she received for her deception was not "property of the United
States." But this argument is a facade. Another perspective
allows us to pierce the illusion. Through her deception, Herrera
caused HUD to pay her landlord many thousands of dollars. As a
consequence of these payments, Herrera received a thing of value to
her -- a place to live. We need not decide whether the lease
constitutes property of the United States; the payments certainly
4
Even were we to accept Herrera's contention and require proof
of loss, it would be easy to come by. First, the funds here,
unlike those in Collins, were paid from government accounts.
Second, the government introduced evidence that there was a waiting
list for the vouchers, and that the vouchers were automatically
assigned as they became available to those on the waiting list.
The government, then, suffered a loss because it was not able to
pass those benefits on to the next qualified applicant on the
waiting list. This case, then, is different than United States v.
Kueneman, 94 F.3d 653 (9th Cir. 1996), which Herrera cites in
support of her proposition that the government has failed to prove
actual loss. In an unpublished memorandum disposition, 1996 WL
473690, the Kuneman panel vacated defendant's conviction under §
641, reasoning that the government had failed to introduce evidence
that, but for the misuse complained of, the property would have
been put to its intended use. In other words, Kueneman had let his
daughter stay briefly in a vacant unit intended for the homeless,
but the government had introduced no evidence that the unit would
otherwise have been occupied by a homeless person. We are
therefore not called upon to determine whether we find Kueneman
persuasive, as it is distinguishable on its facts. We reiterate
that Kueneman rests on the proposition that the government must
show an actual loss to prevail under § 641, a proposition only the
Ninth Circuit has embraced.
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were government funds, converted under false pretenses either to
Herrera's use or to the use of her landlord. The statute requires
no more. See In re Petition for Disclosure of Evidence Taken
Before the Special Grand Jury Convened on May 8, 1978, 662 F.2d
362, 369 (5th Cir. 1981) (direct benefit to defendants need not be
shown where direct beneficiary was a corporation closely held by
defendants and indirect benefit to defendants was obvious).
Herrera's challenges to her conviction under 18 U.S.C. §
641 rest on unduly narrow interpretations of the law or
mischaracterization of the facts, and therefore fail.5
B. 42 U.S.C. § 408(a)(7)(B)
Section 408(a)(7)(B) of Title 42 of the United States
Code criminalizes the use of a false Social Security number to
obtain payments from the government. Herrera claims that the
proscription only applies when the payment is made pursuant to the
Social Security Act. If she were correct, then the housing subsidy
she received through the use of a false Social Security number
5
Herrera briefly adverts to the rule of lenity, claiming that
at least the statute is ambiguous in scope and ought to be
construed in her favor. A mere assertion that the rule of lenity
ought to mandate acquittal cannot be said to have preserved the
issue. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir.
1990) ("[I]ssues adverted to in a perfunctory manner, unaccompanied
by some effort at developed argumentation, are deemed waived.").
We note only that the rule of lenity applies in the case of
"grievous ambiguity" that persists even after resort to statutory
interpretation. Jimenez, 507 F.3d at 20-21 (quoting United States
v. Councilman, 418 F.3d 67, 83 (1st Cir. 2005) (discussing
application of rule of lenity)).
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would not be within the ambit of the statute, and she would be
entitled to an acquittal on this charge as a matter of law. She is
mistaken.
When asked to construe a statute we begin with its text.
Jimenez, 507 F.3d at 19. Section 408 is the "Penalties" section of
the Social Security Act. Subsection (a) denotes as felonies
several activities. Subsection (a)(7) provides, in relevant part:
[Whoever] for the purpose of causing an
increase in any payment authorized under this
title (or any other program financed in whole
or in part from Federal funds), or for the
purpose of causing a payment under this title
(or any such other program) to be made when no
payment is authorized thereunder, or for the
purpose of obtaining (for himself or any other
person) any payment or any other benefit to
which he (or such other person) is not
entitled, or for the purpose of obtaining
anything of value from any person, or for any
other purpose . . .
(B) with intent to deceive, falsely
represents a number to be the social security
account number assigned by the Commissioner of
Social Security to him or to another person,
when in fact such number is not the social
security account number assigned by the
Commissioner of Social Security to him or to
such other person [shall be guilty of a
felony].
42 U.S.C. § 408(a) (emphasis added). The inclusion of the
parenthetical "or any other program financed in whole or in part
from Federal funds" plainly implicates payments such as those paid
by HUD to Herrera's landlord for her benefit.6
6
The second parenthetical in subsection (a)(7) refers back to
the first for the meaning of "such other program." Thus the
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Not only does subsection (a)(7) apply specifically to
causing an unauthorized payment from any federally funded program,
but it also applies to using a Social Security number for the
purpose of obtaining "any payment or any other benefit" to which
the defendant is not entitled, "or for the purpose of obtaining
anything of value from any person, or for any other purpose." In
United States v. McGauley, 279 F.3d 62 (1st Cir. 2002), we held
that the "any other purpose" language reached a situation where a
Social Security number was used as part of a scheme to defraud
retail stores. Id. at 69. Even if the earlier language in the
subsection were not specifically applicable to this case, under
McGauley, the catch-all provision "any other purpose" does apply.
Herrera argues that the rest of the activities listed in
§ 408(a)(1)-(6) all relate to payments under the Social Security
Act itself, and that therefore the parenthetical must be read as
implicitly limited to that sort of payment. Quite the contrary:
the drafters of this section were indicating that they wished to
cast a wider net with this provision than with the others. The
subsections have different foci. The first six subsections concern
misrepresentations of fact and omissions of fact material to
payments under the Social Security Act. But subsection (7)
punishes activities related to the Social Security card and number
statute, by its plain terms, reaches the conduct of causing a
payment to be made under any program financed in whole or in part
from federal funds.
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themselves. Id. § 408(a)(7)(A) (use of a Social Security account
number that has been assigned on the basis of false information);
Id. § 408(a)(7)(B) (use of a Social Security number not one's own);
Id. § 408(a)(7)(C) (alteration or counterfeiting of Social Security
card).
Put more plainly, the subsections Herrera relies on are
concerned with lying to the Social Security Administration, but the
subsection under which she was convicted concerns misuse of
credentials or identifying information provided by the Social
Security Administration. It is not surprising then that the
statute would allow prosecution of a person who thereby receives
any federal funds, not just those provided for by the Social
Security Act. The reach of the criminal statute is as broad as it
is because of the interest the Social Security Administration has
in protecting the integrity of its identification and recordkeeping
system. Further examination provides more evidence that all eight
subsections in § 408(a) are not limited to the same scope. Indeed,
subsection (8) does not require any payment at all of any kind,
making it a felony simply to disclose, use, or compel the
disclosure or use of a Social Security number in violation of
United States law. Id. § 408(a)(8).
The cases Herrera cites in support of her narrow reading
of the statute are inapposite. They do not concern the same
subsection, or even similar language. See United States v. Gomez,
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969 F.2d 1290, 1293 (1st Cir. 1992) (reversing conviction because
blank Social Security cards did not meet legal definition of
counterfeit); United States v. Phillips, 600 F.2d 535, 536-37 (5th
Cir. 1979) (requiring the government to prove "fraudulent intent"
in accordance with the explicit language of § 408(d)); see also
United States v. Cormier, 639 F.2d 1177 (5th Cir. 1981) (same).
The plain language of § 408(a)(7)(B) encompasses payments from
other government programs; Herrera's claim to the contrary is
unavailing.7
C. 18 U.S.C. § 1028A
Herrera's only challenge to her conviction under 18
U.S.C. § 1028A is that she was entitled to a judgment of acquittal
on the two possible predicate offenses. Because we find no reason
to set aside those convictions, we also uphold the conviction for
aggravated identity theft.
Affirmed.
7
When the statute's text is clear we need go no further.
United States v. Roberson, 459 F.3d 39, 51 (1st Cir. 2006).
Likewise, Herrera's appeal to the rule of lenity would fail at the
first step because the statute is not ambiguous.
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