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Boston, MA - Criminal defense lawyer represented defendant with six counts: one count of using a fraudulently obtained passport (Count One), two counts of misuse of a social security number (Counts Two and Three), one count of theft of public funds (Count Four), and two counts of aggravated identity theft (Counts Five and Six) charges.

In July 2018, a grand jury in the District of
Massachusetts indicted Doe on six counts: one count of using a
fraudulently obtained passport in violation of 18 U.S.C. § 1542
(Count One), two counts of misuse of a social security number in
violation of 42 U.S.C. § 408(a)(7)(B) (Counts Two and Three), one
count of theft of public funds in violation of 18 U.S.C. § 641
(Count Four), and two counts of aggravated identity theft in
violation of 18 U.S.C. § 1028A (Counts Five and Six). The
following facts that pertain to these charges -- each of which
concerns Doe's alleged use of social security number (SSN) xxxxx-9645 -- are not in dispute on appeal.
In 1994, Doe visited an SSA office in Boston,
Massachusetts in response to a letter that he had received from
the U.S. Internal Revenue Service. That letter had informed him
that the name associated with the social security number that he
had been using until that date, SSN xxx-xx-3455, did not match the
name that he went by at the time, which was José Manuel Rodriguez.
Rather, SSA records showed that SSN xxx-xx-3455 was, in fact,
assigned to an individual whose initials are R.R. and who was born
in 1955.
At the SSA office, Doe was asked for his name, birthdate,
birthplace, and parents' names so that the SSA official assisting
him could determine whether a person with that biographical
information had been assigned a social security number and, if so,
what that number was. Doe represented that his name was José
Manuel Rodriguez and that he was born on November 14, 1949 in Rio
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Piedras, Puerto Rico to José Rodriguez and Felicita Nieves. The
information that Doe gave regarding José Manuel Rodriguez matched
the information that the SSA had in its system about that person,
and Doe was subsequently issued a social security card bearing a
different social security number from the one that the IRS had
flagged. That new card's social security number was xxx-xx-9645.
More than a decade later, in 2006, Doe procured a U.S.
passport with SSN xxx-xx-9645, and four years after that, on
February 27, 2010, he used that passport to travel from the
Dominican Republic to Boston. The latter event forms the factual
predicate for Count One of the indictment, which charges Doe with
the use of a fraudulently obtained passport.
In 2012, José Manuel Rodriguez died. In consequence,
when Doe, still representing himself to be José Manuel Rodriguez,
applied the following year for state unemployment benefits in
Massachusetts, the Massachusetts Department of Unemployment
Assistance rejected his application because it determined that Doe
could not satisfactorily prove that he was the person that he
claimed to be. Doe appealed the denial of his claim at a hearing
held on November 12, 2013 and represented at the hearing that his
name was José Manuel Rodriguez and that SSN xxx-xx-9645 was his
social security number. These events form the factual predicate
for Counts Two and Five of the indictment, which concern,
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respectively, misuse of a social security number and aggravated
identity theft.
The next events of relevance to this appeal occurred the
following year, when Doe applied for a housing voucher from the
Boston Housing Authority, again using the SSN xxx-xx-9645. Doe's
application was granted, and he was given a voucher that was funded
by the U.S. Department of Housing and Urban Development. These
events form the factual basis for Count Four of the indictment,
which concerns theft of public funds.
The final events that gave rise to the convictions of
relevance to this appeal occurred, on April 22, 2014. On that
day, Doe once again visited the SSA office in Boston to report
issues that he was having in using SSN xxx-xx-9645. During that
visit, Doe provided information about those problems to an SSA
official, who relied on the information that Doe supplied to fill
out a 795-SSA form.
Doe reported to the official, and the 795-SSA form in
turn recounted, the events in 1994 when he first acquired SSN xxxxx-9645 after having represented to the SSA that his name was José
Manuel Rodriguez and that he was born in 1949 in Puerto Rico. Doe
signed the 795-SSA form setting forth the information just
described as being a true statement on penalty of perjury. Doe's
representation on the 795-SSA form that SSN xxx-xx-9645 was his
social security number gave rise to Count Three of the indictment,
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which charged him with misuse of a social security number, and
Count Six of the indictment, which charged him with aggravated
identity theft.
Following Doe's indictment on the six counts pertaining
to his use of SSN xxx-xx-9645, the criminal case against him
proceeded to a jury trial in the District of Massachusetts in June
2019. Doe's defense during the five-day trial was that he honestly
believed that he was properly assigned SSN xxx-xx-9645 in 1994 and
thus lacked the requisite mens rea necessary for the jury to find
him guilty beyond a reasonable doubt on any of the counts. The
jury found Doe guilty on all six counts. The District Court
sentenced Doe to thirty-six months of imprisonment with three years
of supervised release and $16,762 in restitution. Doe then timely
filed this appeal.
II.
Doe first contends that his convictions cannot stand
because the District Court erred by admitting the 795-SSA form
that the SSA officer prepared during Doe's visit to the SSA office
in Boston in 2014. He contends that the entry of the form caused
him prejudice both because two of the convictions rest on counts
that are directly predicated on representations made by Doe that
were included on that form and because the form more generally
contained information that suggested that he was not José Manuel
Rodriguez. In that latter regard, Doe points to the fact that the
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form contained a statement by him that he speaks with a Dominican
accent, arguably calling into question his assertion that he was
the José Manuel Rodriguez who was born in Rio Piedras, Puerto Rico
as he had asserted was the case.
The District Court admitted this form pursuant to
Federal Rule of Evidence (FRE) 803(6), which permits a court to
admit a document that would otherwise be inadmissible hearsay if
the following requirements are satisfied: (1) "the record was made
at or near the time by -- or from information transmitted by --
someone with knowledge;" (2) "the record was kept in the course of
a regularly conducted activity of a business, organization,
occupation, or calling;" (3) "making the record was a regular
practice of that activity;" (4) "all these conditions are shown by
the testimony of the custodian or another qualified witness, or by
. . . certification;" and (5) neither "the source of the
information [n]or the method or circumstance of preparation
indicate a lack of trustworthiness." Fed. R. Evid. 803(6). Doe
contends that the form was improperly admitted because it "was not
made in the regular course of business as the statements were
taken . . . with an eye towards litigation;" "[t]he source of the
information in the 795-SSA form is an outsider to the business;"
and "[t]he methods and circumstances of preparation of the SSA795 form indicate a lack of trustworthiness."
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Doe did not raise to the District Court either of the
latter two grounds for objecting to the admission of the form
below, and, as a consequence, those claims are subject to plain
error review. See United States v. Rosado-Pérez, 605 F.3d 48, 54
(1st Cir. 2010). He makes no argument to us as to either of those
grounds that the District Court committed plain error in admitting
the form. Thus, any argument to that effect is waived, see United
States v. Pabon, 819 F.3d 26, 33 (1st Cir. 2016), and so we confine
our analysis to a consideration of the first ground that he sets
forth regarding the admissibility of the form, which he did raise
below.
In support of the contention that the District Court
erred in rejecting his objection to the admission of the 795-SSA
form, in which he contended that the record compels the conclusion
that form had been prepared in anticipation of litigation and so
not in the regular course of business, see Palmer v. Hoffman, 318
U.S. 109, 111-12 (1943) (finding that an accident report created
in anticipation of litigation was not made "in the regular course
of business" and thus was properly excluded from the record); see
also United States v. Goodchild, 25 F.3d 55, 62 (1994) (explaining
that records "prepared with an eye to litigation" are not
admissible as business records), Doe points to the testimony of
Jeisa Rincon. She is the SSA employee in the Boston office of
that agency who helped Doe during his visit there in 2014 fill out
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the 795-SSA form by asking him questions, writing down a translated
version of his response, and reading those written responses back
to him in Spanish to confirm she had recorded his answers
correctly.
Doe points specifically to Rincon's testimony that after
he arrived seeking assistance for the problems that he was having
using the social security number in question, her supervisor asked
her to help Doe fill out the form because she was bilingual and
told her to "grab as much detail as possible" in the course of
that interaction, and that she answered in the negative when she
was asked if the events that transpired concerning the filling out
of the form were "typical."
Our review of the District Court's ruling in admitting
the form and rejecting Doe's characterization of it is for abuse
of discretion. See United States v. Casanova, 886 F.3d 55, 63
(1st Cir. 2018). We see none.
Although Rincon did testify that her interaction with
Doe "was not a typical event," the District Court explained that
the 795-SSA form is "used for people who make allegations and,
consequently, not everybody makes an allegation who comes in[to]
[the SSA office]." In addition, the District Court also found
that while Rincon's supervisor requested that she "grab as much
detail" as she could from Doe, Rincon was unaware of any ongoing
investigation of Doe at the time she filled out the form. For
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those reasons, the District Court determined that Rincon's
statement was merely a statement that reflected the reality that
the filling out of that form even in the ordinary course -- and
hence even when not filled out with an eye toward litigation -- is
itself not necessarily a "typical" event.
Given the reasonableness of that understanding of the
import of the portion of Rincon's testimony on which Doe relies,
the fact that there is no evidence in the record that shows that
Rincon knew of any ongoing investigation into Doe at the time she
spoke with him, and the fact that she did not testify that she
asked Doe any questions that she would not have absent her boss's
instruction to "grab as much detail as possible," we cannot say on
this record that "we are 'left with a definite and firm conviction
that the [District Court] made a clear error of judgment'" in so
understanding the import of Rincon's testimony. United States v.
Burdulis, 753 F.3d 255, 263 (1st Cir. 2014) (quoting United States
v. Trenkler, 61 F.3d 45, 57 (1st Cir. 1995)). We thus see no basis
for concluding that the District Court's decision to reject Doe's
objection to the admission of the form under FRE 803(6) was an
abuse of discretion.1
1 We also note that Doe seems to advance a second, related
argument that 795-SSA forms, categorically, are created in
anticipation of litigation because they are "only used when an
individual seeks to make an allegation pertaining to their SSN to
the Social Security Administration," and thus they are "more like
[the] accident report [from Palmer] than a business record." As
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III.
Doe's remaining ground for challenging his convictions
takes aim at the District Court's denial of his motion to suppress
the testimony of a former immigration official, Jose DeChoudens.
That official interviewed Doe at Miami International Airport in
1985 when Doe sought to reenter the United States after visiting
the Dominican Republic.
DeChoudens testified at trial concerning certain answers
that Doe gave when questioned, including as to his recollection of
Doe having given an answer to a question as to where he attended
school in Puerto Rico that was implausible and as to Doe having
spoken at that time with a Dominican accent. Doe moved to suppress
the testimony on the ground that DeChoudens's questioning of him
at the airport was a custodial interrogation for which he was not
given the warnings required by Miranda v. Arizona, 384 U.S. 436
(1966). The District Court denied the motion, however, on the
ground that the questioning was not custodial in nature.
Doe contends on appeal that the District Court erred in
so concluding. But, even if we assume that Doe is right on that
Doe did not advance this argument to the District Court, our review
is for plain error. See Rosado-Pérez, 605 F.3d at 54. Because
Doe has not explained how this argument challenging the District
Court's admission of the 795-SSA form survives plain-error review,
any such contention is waived. See United States v. Zannino, 895
F.2d 1, 17 (1st Cir. 1990).
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score, we conclude, reviewing de novo, see United States v. PérezVásquez, 6 F.4th 180, 194 (1st Cir. 2021), that any error was
harmless beyond a reasonable doubt, see United States v. Carl, 593
F.3d 115, 119 n.3 (1st Cir. 2010) ("Statements induced in violation
of Miranda's safeguards are appropriate for analysis under the
harmless beyond a reasonable doubt test." (quoting United States
v. Batista-Polanco, 927 F.2d 14, 21 (1st Cir. 1991))); see also
United States v. Verdugo, 617 F.3d 565, 574 (1st Cir. 2010)
(declining to reach the merits of a claim asserting a violation of
Miranda because "the claimed error was harmless beyond a reasonable
doubt").
To convict Doe of the offenses that he was indicted on,
the government had to prove beyond a reasonable doubt that Doe
knew that he was not assigned SSN xxx-xx-9645. The government's
case thus depended on its ability to show beyond a reasonable doubt
that the biographical information regarding José Manuel Rodriguez
that Doe purported was his own was, in fact, not and that he knew
it was not each time that he used that number in the manner that
supplies the predicate for each of the charges on which the
convictions that he challenges are based. But, that being so, we
see no reason to conclude that DeChoudens's testimony "add[ed]
very much [in the way of proof] to the mix." See United States v.
Piper, 298 F.3d 47, 58 (1st Cir. 2002).
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Wholly apart from that testimony, the evidence the
government presented to show that Doe was not José Manuel Rodriguez
and knew that he was not was overwhelming. See Clark v. Moran,
942 F.2d 24, 27 (1st Cir. 1991) ("[C]ourts have found [an] error
to be harmless when the [remaining] evidence . . . provided
'overwhelming evidence' of the defendant's guilt." (citation
omitted)). For example, the government presented testimony from
Angel Rodriguez, the brother of José Manuel Rodriguez -- the
purported true assignee of SSN xxx-xx-9645 -- that his brother's
biographical information matched the information the SSA had on
file for the social security number that Doe was using.
Specifically, Angel testified that his brother was born in Puerto
Rico in 1949 to their parents, José Manuel Rodriguez and Felicita
Nieves, and that his brother had died in 2012. To substantiate
that testimony, the government introduced into evidence his
brother's application for a social security number in 1964, his
original social security card, and his death certificate.
To be sure, Doe's sole witness, his daughter, did testify
that Doe's birthdate was November 15, 1949 -- a birthdate that
matched the SSA's records relating to SSN xxx-xx-9645. But, on
cross examination, she admitted that she had applied for a U.S.
passport roughly two decades earlier and had stated in doing so at
that time that her father's birthdate was May 20, 1950. Nor did
she explain the discrepancy between her representations about her
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father's birthdate in her testimony and her contradictory
representation about it when she had applied for the passport.
Against this evidentiary backdrop, it is hard to see how
DeChoudens's testimony regarding his decades-old recollection of
the implausible nature of the answers that Doe gave in response to
questions about the school that he attended in Puerto Rico could
be thought to have had any material impact either on a juror's
assessment that Doe's asserted biographical information was not
what he had represented it to be or whether Doe knew that it was
not. Nor does Doe offer any explanation of how it could have been,
notwithstanding the problems he does not dispute existed with
respect to the testimony of the sole witness he put forward and
the evident strength of testimony (supported by documents) of Angel
Rodriguez. Moreover, the only documentary evidence Doe introduced
consisted of employment records that show only that he was using
the name José Manuel Rodriguez and the social security number
assigned to that person, neither of which is a fact in dispute.
The same is true of DeChoudens's testimony that Doe spoke
in 1985 with a Dominican accent, especially because the 795-SSA
form -- which, as we have explained, Doe has not shown was
improperly admitted into evidence -- itself contained an admission
by Doe that he spoke with a Dominican accent in 2014, and that
Rincon testified at trial that she recalled Doe at that time spoke
"more like a Dominican . . . than a Puerto Rican" and that she
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"could tell he was acting as a Puerto Rican" because "[h]e was
using a lot of expressions that are very stereotypical, and . . .
just didn't come out right." See Ahern v. Scholz, 85 F.3d 774,
786 (1st Cir. 1996) (noting that an error does not "rise[] to the
level of harmful error if . . . 'the evidence omitted was
cumulative as to other admitted evidence'" (quoting Doty v. Sewall,
908 F.2d 1053, 1057 (1st Cir. 1990))). We thus reject Doe's
Miranda-based challenge to his convictions on harmless error
grounds, without thereby suggesting that the interview DeChoudens
conducted constituted a custodial interrogation.

Outcome: For the aforementioned reasons, we affirm.

Plaintiff's Experts:

Defendant's Experts:

Comments: