FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MAINE [Hon. Jon D. Levy, U.S. District Judge]
Schneider on brief for appellant.
Benjamin M. Block, Assistant United States Attorney, and
Halsey B. Frank, United States Attorney, on brief for
Howard, Chief Judge, Boudin and Kayatta, Circuit Judges.
BOUDIN, CIRCUIT JUDGE.
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,  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
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
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.
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.
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 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.
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.
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
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 ...