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United States v. Acosta-Joaquin

United States Court of Appeals, First Circuit

July 2, 2018



          Tina Schneider on brief for appellant.

          Benjamin M. Block, Assistant United States Attorney, and Halsey B. Frank, United States Attorney, on brief for appellee.

          Before Howard, Chief Judge, Boudin and Kayatta, Circuit Judges.


         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).

         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 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]

         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 ...

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