United States Court of Appeals 

For the First Circuit 

No. 14-2132 

UNITED STATES OF AMERICA, 

Appellee, 

v. 

RENATO DE LA CRUZ, 

Defendant, Appellant. 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF MASSACHUSETTS 

[Hon. Richard G. Stearns, U.S. District Judge] 

Before 

Torruella, Selya and Thompson, 

Circuit Judges. 

 Eduardo Masferrer, with whom Masferrer & Associates, PC was 

on brief, for appellant. 

 Robert E. Richardson, Assistant United States Attorney, with 

whom Carmen M. Ortiz, United States Attorney, was on brief, for 

appellee. 

August 19, 2016 
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SELYA, Circuit Judge. In this criminal appeal, the 

appellant strives to convince us that we ought to overturn his 

convictions for theft of public money, use of a falsely obtained 

social security number, and aggravated identity theft. We are not 

persuaded: neither the appellant's quest for suppression of 

evidence nor his challenge to the district court's jury 

instructions has merit, and the record reveals that the 

government's case rests on a durable foundation. Accordingly, we 

affirm the judgment below. 

I. BACKGROUND

We start with a sketch of the facts and the travel of 

the case. To the extent that we rehearse the facts, whether here 

or in greater detail in connection with our discussion of 

particular issues, we take them in the light most favorable to the 

jury's verdict, consistent with record support. See United States 

v. Maldonado-García, 446 F.3d 227, 229 (1st Cir. 2006). 

The appellant's true name is Renato De La Cruz. The 

appellant is a citizen of the Dominican Republic who entered the 

United States illegally sometime in 1993. Not long after, he went 

to New York City, where he paid a man $1,500 for identity documents 

in the name of "Alberto Pena." These documents matched the 

identity of a real Alberto Pena (also a native of the Dominican 

Republic, who became a lawful permanent resident of the United 

States). 
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Once the appellant had procured Pena's identity 

documents, he was able to obtain a Dominican passport from the 

Dominican embassy and a "green card" from the Immigration and 

Naturalization Service. In December of 1994 — four days before 

the real Pena applied for a social security number — the appellant 

used Pena's name, date of birth, parentage, and alien number to 

apply for and receive a social security number. Shortly 

thereafter, the appellant — apparently nervous about his physical 

proximity to the real Pena (who was residing in New York) — moved 

away, eventually relocating to Massachusetts. 

While in Massachusetts, the appellant worked 

intermittently for a general contractor. At various times from 

December of 2010 through October of 2012, the appellant received 

unemployment benefits, including 21 weeks of federally-funded 

extension benefits. Because an alien is eligible for such 

unemployment benefits only if he is authorized to work in the 

United States, the appellant had to use his social security number 

to secure his benefits. The federally-funded benefits that the 

appellant received amounted to $11,340, and the appellant does not 

dispute that these benefits comprised public funds within the 

purview of 18 U.S.C. § 641. 

On December 18, 2012, U.S. Immigration and Customs 

Enforcement (ICE) officers arrested the appellant. A federal grand 

jury subsequently returned a three-count indictment charging him 
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with theft of public money, in violation of 18 U.S.C. § 641 (count 

1); use of a falsely obtained social security number to obtain 

benefits, in violation of 42 U.S.C. § 408(a)(7)(A) (count 2); and 

aggravated identity theft, in violation of 18 U.S.C. § 1028A (count 

3). A superseding indictment tracked this three-count structure. 

In due course, the appellant moved to suppress 

statements made on the date of his arrest. Through a supplemental 

motion, he also sought suppression of any physical evidence 

gathered at that time. The government opposed these motions. 

After an evidentiary hearing, the district court denied the 

motions. See United States v. De La Cruz, No. 13-10022, 2014 WL 

1515410 (D. Mass. Apr. 18, 2014). The appellant moved for 

reconsideration, but to no avail. See United States v. De La Cruz, 

No. 13-10022, 2014 WL 1796654 (D. Mass. May 5, 2014). 

On June 25, 2014 — following a three-day trial — a jury 

found the appellant guilty on all three counts. The appellant 

filed a post-trial motion for judgment of acquittal under Federal 

Rule of Criminal Procedure 29(c) as to counts 1 and 3, which the 

district court rejected. See United States v. De La Cruz (De La 

Cruz III), No. 13-10022, 2014 WL 3925497 (D. Mass. Aug. 12, 2014). 

The court sentenced the appellant to concurrent one-month terms of 

immurement on the first two counts and a consecutive 24-month term 

of immurement on count 3. This timely appeal followed. 
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II. ANALYSIS 

We divide our discussion of the issues into three 

segments, corresponding to the components of the appellant's 

asseverational array. 

A. Suppression. 

To place the suppression issues into perspective, we 

think it useful to embellish the barebones account provided above. 

In the process, we accept the facts as supportably found by the 

district court. See United States v. Romain, 393 F.3d 63, 66 (1st 

Cir. 2004). 

On December 18, 2012, a supervisory ICE officer, Andrew 

Graham, accompanied by fellow ICE officers, sought to arrest the 

appellant as a person unlawfully present in the United States. 

Because the appellant was the subject of an ongoing Department of 

Labor (DOL) criminal investigation, a DOL agent and a 

representative of the Social Security Administration also went 

along. 

The cadre of officers and agents proceeded to an 

apartment building in Salem, Massachusetts, believing that the 

appellant resided there with a girlfriend (Mayra Espinal). Graham 

and another ICE officer went to the front door of Espinal's 

apartment. When the appellant came to the door, Graham — speaking 

across the threshold — employed a ruse and told him (falsely) that 

the officers were concerned that he might have a gun. The 
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appellant consented to a frisk and told officers that they could 

enter the apartment. Once inside, Graham arrested the appellant. 

After retrieving additional clothing for the appellant, 

the officers escorted the appellant into a hallway outside the 

apartment. They were joined by Christina Rosen, the DOL agent. 

Graham asked the appellant whether he preferred his Miranda 

warnings, see Miranda v. Arizona, 384 U.S. 436, 479 (1966), to be 

read to him in English or in Spanish. The appellant elected to 

hear them in English. Graham then read the appellant his Miranda 

rights from a preprinted card. Standing in the hallway, the 

appellant made a number of admissions: he related his true name, 

acknowledged that he had no lawful right to be in the United 

States, and disclosed his purchase of Pena's identity information. 

Roughly 20 minutes after being given his Miranda 

warnings, the appellant was transported to the ICE office in 

Burlington, Massachusetts. Upon his arrival, he was processed 

administratively, and an ICE officer explained that he was under 

arrest for immigration violations and that he would have to appear 

before an immigration judge to determine his status. To that end, 

he was given a notice to appear in the immigration court, which 

explained, inter alia, his right to be represented by an attorney 

at no expense to the government. The officer made it clear, 

however, that he was only serving the appellant with paperwork 
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anent the immigration matter and that other officers would process 

him with respect to criminal charges. 

After his administrative processing concluded, the 

appellant was taken to a different interview room.1 Agent Rosen 

introduced herself and explained that a criminal investigation was 

being conducted into the appellant's suspected theft of identity 

and misuse of public funds. She further explained that the agents 

in attendance were criminal investigators, not immigration 

officers. The appellant received his Miranda rights once again, 

and he signed a form acknowledging that he understood those rights 

and was willing to waive them. 

The appellant proceeded to make a number of admissions. 

He recounted how he had obtained the Pena identity documents; 

admitted that he used these documents to get a passport, green 

card, and social security number; and described how, as Pena, he 

had collected unemployment benefits in Massachusetts. Those 

admissions were memorialized in a statement transcribed by Agent 

Rosen and signed by the appellant. 

Against this factual backdrop, the appellant musters 

three arguments in support of his assertion that the district court 

erred in denying suppression. First, he submits that the ICE 

 

 1 The immigration officer who processed the appellant 

administratively was not present in this room, nor did he 

participate in the interview that ensued. 
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officers acted outside their authority when they arrested him 

without an administrative arrest warrant and, thus, his subsequent 

statements should be suppressed as the fruit of an illegal arrest. 

Second, he submits that the officers' warrantless entry into the 

apartment offended the Fourth Amendment because he did not validly 

consent to their entry. Finally, he submits that his Miranda 

waiver at the ICE office should be disregarded because he was 

provided with intervening and conflicting administrative warnings. 

We address these arguments sequentially, pausing first, however, 

to frame the standard of review. 

In reviewing the denial of a suppression motion, we assay 

the district court's conclusions of law de novo and its factual 

findings, including its credibility determinations, for clear 

error. See United States v. Feliz, 794 F.3d 123, 130 (1st Cir. 

2015). The fact-based aspect of this review is "highly 

deferential." United States v. Floyd, 740 F.3d 22, 33 (1st Cir. 

2014). "If any reasonable view of the evidence supports the denial 

of a motion to suppress, we will affirm the denial." United States 

v. Boskic, 545 F.3d 69, 77 (1st Cir. 2008). 

The appellant's first argument, which centers on the 

lack of an administrative arrest warrant, emanates from 8 U.S.C. 

§ 1357(a)(2). That statute authorizes an immigration officer to 

effect a warrantless arrest only in two situations: when an alien 

"in [the officer's] presence or view is entering or attempting to 
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enter the United States in violation of any law or regulation made 

in pursuance of law regulating the admission, exclusion, 

expulsion, or removal of aliens"; or when the officer "has reason 

to believe that the alien . . . is in the United States in violation 

of any such law or regulation and is likely to escape before a 

warrant can be obtained for his arrest."2 The appellant asserts 

that the ICE officers who arrested him violated these strictures, 

and that the remedy for that violation is suppression of all the 

statements that he subsequently made. 

We assume, albeit without deciding, that the ICE 

officers who effected the arrest exceeded their federal statutory 

mandate. Even so, the appellant's argument is foreclosed by a 

solid phalanx of case law. 

"Suppression of evidence is strong medicine, not to be 

dispensed casually." United States v. Adams, 740 F.3d 40, 43 (1st 

Cir.), cert. denied, 134 S. Ct. 2739 (2014). Normally, a violation 

of federal or state law triggers the exclusionary rule only if the 

evidence sought to be excluded "ar[ises] directly out of statutory 

violations that implicate[] important Fourth and Fifth Amendment 

 

 2 Along the same lines, 8 C.F.R. § 287.8(c)(2)(ii) provides 

that "[a] warrant of arrest shall be obtained except when the 

designated immigration officer has reason to believe that the 

person is likely to escape before a warrant can be obtained." For 

present purposes, the regulation adds nothing to the statutory 

proviso and, thus, we make no further reference to it. 
- 10 - 

interests." Sanchez-Llamas v. Oregon, 548 U.S. 331, 348 (2006); 

see United States v. Caceres, 440 U.S. 741, 751-55 (1979).3 As a 

result, "[t]he cases in which the Supreme Court has approved a 

suppression remedy for statutory violations are hen's-teeth rare." 

Adams, 740 F.3d at 43. 

We have said before, and today reaffirm, that a statutory 

violation "untethered to the abridgment of constitutional rights" 

is insufficient to justify suppression. Id. The case at hand 

falls squarely within the contours of that premise: the failure to 

obtain an administrative arrest warrant as contemplated by 8 U.S.C. 

§ 1357, without more, does not justify the suppression of evidence. 

See United States v. Abdi, 463 F.3d 547, 556-57 (6th Cir. 2006).4

This brings us to the appellant's second argument: that 

suppression was warranted because he never validly consented to 

the ICE officers' entry into the apartment. That argument is dead 

 

 3 We say "normally" because a statutory violation would also 

animate the exclusionary rule when the statute itself mandates 

suppression as a remedy. See, e.g., United States v. Giordano, 

416 U.S. 505, 524-29 (1974). Because the statute at issue here — 

8 U.S.C. § 1357 — does not provide for an independent suppression 

remedy, this exception to the usual rule is inaccessible to the 

appellant. 

 4 Because the appellant does not argue that his arrest 

independently violated his constitutional rights apart from the 

statutory violation, we need not address whether his arrest was 

reasonable under the Fourth Amendment. See Ortiz v. Gaston Cty. 

Dyeing Mach. Co., 277 F.3d 594, 598 (1st Cir. 2002). In all 

events, as we discuss infra, the officers had probable cause to 

effect the arrest.
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on arrival: the appellant has failed to specify what evidence he 

seeks to suppress as a result of the ICE officers' allegedly 

invalid entry into the apartment. Nor does this seem to be an 

oversight: at trial, the government introduced no physical 

evidence derived from within the apartment. The appellant must be 

arguing, then, for suppression of the statements that he made in 

the outside hallway of the apartment building and at the ICE 

office. But he is whistling past the graveyard: regardless of the 

validity vel non of the appellant's consent to the ICE officers' 

entry into the apartment, that entry has no bearing on the 

admissibility of statements that the appellant later made outside 

the apartment. We explain briefly. 

In New York v. Harris, the Supreme Court declined to 

apply the exclusionary rule to statements made by a defendant at 

a police station after the police had effected an unconstitutional 

arrest in the defendant's home (which the police had entered 

without either a warrant or the defendant's consent). See 495 

U.S. 14, 16, 21 (1990). The Court's reasoning started with a frank 

recognition of the rule prescribed in Payton v. New York, 445 U.S. 

573 (1980): "that the Fourth Amendment prohibits the police from 

effecting a warrantless and nonconsensual entry into a suspect's 

home in order to make a routine felony arrest." 495 U.S. at 16. 

After acknowledging that the defendant's arrest transgressed both 

the Payton rule and the Fourth Amendment, however, the Harris Court 
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held that suppression of the defendant's statements was not 

compelled. The Court explained that "the rule in Payton was 

designed to protect the physical integrity of the home; it was not 

intended to grant criminal suspects . . . protection for statements 

made outside their premises where the police have probable cause 

to arrest the suspect for committing a crime." Id. at 17. Fairly 

viewed, the defendant's statements at the police station were 

neither "the product of being in unlawful custody" nor "the fruit 

of having been arrested in the home rather than someplace else." 

Id. at 19. 

So it is here. The ICE officers indisputably had 

probable cause to arrest the appellant both administratively (for 

being an alien unlawfully present in the United States) and 

criminally (for aggravated identity theft and related offenses). 

Indeed, the appellant, who has fought tooth and nail on a variety 

of other points, has not contested the existence of probable cause. 

It follows inexorably — as night follows day — that the appellant 

was lawfully in the officers' custody when he made the inculpatory 

statements outside the confines of his home. 

Moreover, those statements bore no relation to the 

underlying illegality that he alleges (that is, the ostensibly 

nonconsensual entry into his home). After all, the appellant was 

neither questioned about anything observed in the apartment nor 
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confronted with any evidence found there.5 In a nutshell, then, 

the appellant's inculpatory statements were not the product of 

unlawful custody, nor were they the fruit of the appellant having 

been arrested in his home (rather than somewhere else). Neither 

the absence of an administrative arrest warrant nor the lack of 

valid consent could change that equation.6

We turn next to the appellant's third suppression 

argument, which seeks exclusion of the statements that he made at 

the ICE office in Burlington. He contends that his Miranda waiver 

at Burlington was neither knowing nor intelligent since he was 

given an earlier administrative warning that differed in an 

important respect from the standard Miranda warning. The district 

court rejected this contention, and so do we. 

Specifically, the appellant points to the portion of the 

administrative warning in which he was advised that he might have 

to pay for legal representation should he desire the services of 

 

 5 The appellant's subsequent statements at the ICE office were 

even further removed — temporally, spatially, and in every other 

arguably relevant sense — from the warrantless arrest. 

 6 Laboring to blunt the force of this reasoning, the appellant 

relies on the Supreme Court's decision in Brown v. Illinois, 422 

U.S. 590, 602-03 (1975). This reliance is mislaid. In Brown, the 

arrest was effected without either a warrant or probable cause. 

See id. at 591. By contrast, probable cause unarguably supported 

the warrantless arrest here. Brown, therefore, offers no succor 

to the appellant. 
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an attorney.7 This advice conflicted with his broader right to 

appointed counsel under Miranda and, in his view, "[r]equiring 

someone to sort out such [conflicting warnings] is an unfair burden 

to impose on an individual already placed in a position that is 

inherently stressful." United States v. San Juan-Cruz, 314 F.3d 

384, 388 (9th Cir. 2002). 

San Juan-Cruz is not in point.8 There, the defendant, 

following his arrest by Border Patrol agents, was advised of his 

rights in connection with the administrative arrest. See id. at 

386. Pertinently, an agent told the defendant that he had the 

right to have counsel present during questioning, but not at the 

government's expense; and that any statements he made could be 

used against him for purposes of removal. See id. Shortly 

thereafter and in the same location, the same agent read the 

defendant his Miranda rights. See id. The defendant then 

proceeded to make a series of incriminating statements. See id. 

 

 7 The notice to appear provided to the appellant advised him 

that "[i]f you so choose, you may be represented in this 

[immigration] proceeding, at no expense to the Government, by an 

attorney or other individual authorized and qualified to represent 

persons before the Executive Office for Immigration Review 

. . . . A list of qualified attorneys and organizations who may be 

available to represent you at no cost will be provided with this 

notice." A notice of rights provided contemporaneously contained 

similar language. 

 8 The present case does not require us to determine whether 

San Juan-Cruz was correctly decided, and we leave that issue for 

another day. 
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at 387. The Ninth Circuit held that, under these circumstances, 

the Miranda warnings were insufficiently clear. See id. at 389. 

The court explained that: 

When a warning, not consistent with Miranda, is given 

prior to, after, or simultaneously with a Miranda 

warning, the risk of confusion is substantial, such that 

the onus is on the Government to clarify to the arrested 

party the nature of his or her rights under the Fifth 

Amendment. The Government should not presume after 

having read two sets of contradictory warnings to an 

individual that he or she possesses sufficient legal or 

constitutional expertise to understand what are his or 

her rights under the Constitution. 

Id. 

This case is a horse of a different hue. Here, law 

enforcement personnel read the appellant his Miranda rights in his 

preferred language even before he received any administrative 

warnings. Later, the appellant was given both administrative 

warnings and Miranda warnings, but under circumstances that 

differed materially from those in San Juan-Cruz. First — unlike 

in San Juan-Cruz — the appellant already had received Miranda 

warnings (while at the apartment building) and made what amounted 

to a full confession before any administrative warnings were given. 

Second — unlike in San Juan-Cruz — different officials administered 

the different warnings. Third — unlike in San Juan-Cruz — the 

agent who administered the subsequent set of Miranda warnings took 

care to explain to the appellant that she was a criminal 

investigator and that she and her colleagues were distinct from 
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the ICE officers handling the administrative case. Fourth — unlike 

in San Juan-Cruz — there were both spatial and temporal gaps 

between the administrative warnings and the Miranda warnings (that 

is, they were administered in different rooms at different times). 

On this record, the government handily carried its 

burden of distinguishing the appellant's administrative rights 

from his criminal rights and clarified to him the nature and extent 

of his Fifth Amendment rights before he confessed to the DOL 

criminal investigator. Simply put, the risk of confusion that 

troubled the San Juan-Cruz court did not exist here. We hold, 

therefore, that the district court did not clearly err in finding 

that the appellant was not confused or otherwise unfairly 

prejudiced by the presentation of the conflicting warnings. 

To say more about the matter of suppression would be 

pointless. Based on what we already have said, it is pellucid 

that the district court did not err in turning aside the 

appellant's attempts to suppress evidence. 

B. Sufficiency of the Evidence.

The appellant contends that the government failed to 

prove beyond a reasonable doubt that he was guilty either of theft 

of public funds (count 1) or aggravated identity theft (count 3). 

After glancing at the legal landscape, we address these contentions 

separately. 
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Where, as here, a defendant files a timely post-verdict 

motion for judgment of acquittal under Federal Rule of Criminal 

Procedure 29(c), his rights are fully preserved. See United States 

v. Castro-Lara, 970 F.2d 976, 980 (1st Cir. 1992). Thus, we review 

the denial of his motion for judgment of acquittal de novo. See 

United States v. Kuc, 737 F.3d 129, 134 (1st Cir. 2013). In the 

course of that review, we take the evidence, both direct and 

circumstantial, in the light most hospitable to the government and 

draw all reasonable inferences in the government's favor. See id. 

In this endeavor, "we must ask whether 'a rational factfinder could 

find, beyond a reasonable doubt, that the prosecution successfully 

proved the essential elements of the crime.'" Id. (quoting United 

States v. Valerio, 676 F.3d 237, 244 (1st Cir. 2012)). We do not 

"weigh the evidence or make credibility judgments; these tasks are 

solely within the jury's province." United States v. Hernández, 

218 F.3d 58, 64 (1st Cir. 2000). 

It is against this backdrop that we evaluate the 

appellant's sufficiency challenges to counts 1 and 3 (taking those 

counts in reverse order). 

1. Aggravated Identity Theft (Count 3). Under the 

statute of conviction, 18 U.S.C. § 1028A(a)(1), a person is guilty 

of aggravated identity theft if, "during and in relation to any 

felony violation enumerated in subsection (c)," that person 

"knowingly transfers, possesses, or uses, without lawful 
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authority, a means of identification of another person." Here, 

the government charged theft of public money (unemployment 

benefits), in violation of 18 U.S.C. § 641, as the underlying 

felony. The parties agree that such an offense is one of the 

crimes enumerated in section 1028A(c). 

The superseding indictment charged the appellant with 

using two "means of identification" in committing theft of public 

funds: Pena's name and date of birth. The appellant asseverates 

that the evidence was insufficient to show that these "means of 

identification" appropriated the specific identity of the real 

Pena. We disagree. 

"Means of identification" is a term of art. Congress 

has defined that term to mean, in relevant part, 

any name or number that may be used, alone or in 

conjunction with any other information, to identify a 

specific individual, including any— 

(A) name, social security number, date of 

birth, official State or government issued 

driver's license or identification number, 

alien registration number, government 

passport number, employer or taxpayer 

identification number. 

18 U.S.C. § 1028(d)(7). Given this definition, the record here is 

ample to ground a finding that the appellant committed aggravated 

identity theft. 

The evidence introduced at trial established that 

unemployment benefits are public funds and that an individual 
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seeking such benefits must provide biographical information — 

including his name and date of birth — in his application. So, 

too, the evidence established that the appellant used both Pena's 

name and date of birth in applying for (and receiving) unemployment 

benefits. Based on this evidence, a rational jury could have found 

beyond a reasonable doubt — as this jury did — that the appellant 

committed aggravated identity theft. 

Our decision in Kuc is instructive. There, the defendant 

used the full name of the victim and the name of the victim's 

company to ship stolen computer parts to multiple addresses. See 

Kuc, 737 F.3d at 134-35. We held that these two "means of 

identification" were sufficient "to identify a specific 

individual" — the victim — within the meaning of 18 U.S.C. 

§ 1028(d)(7). See id. at 135. On that basis, we upheld the 

defendant's conviction for aggravated identity theft. See id. 

In an effort to put the genie back into the bottle, the 

appellant, ably represented, spins an argument that is too clever 

by half: though acknowledging that he used Pena's purloined name 

and date of birth in applying for unemployment benefits, he 

suggests that those items, singly or in the ensemble, did not 

constitute a "means of identification" within the meaning of 18 

U.S.C. § 1028A(a)(1). To support this suggestion, he baldly 

asserts that "the evidence produced at trial established that the 

name and date of birth were part of a fictional identity that 
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included an address, an employer and a social security number that, 

taken together, did not identify the true Alberto Pena of New York 

for purposes of obtaining unemployment benefits." 

This approach gets the appellant high marks for 

creativity, but a failing grade on the merits. To begin, the 

appellant's own admissions undermine his present assertion. In 

the statement that he dictated and signed at the ICE office in 

Burlington (which was introduced at trial), the appellant 

confessed that he knew he was wrongly appropriating Pena's 

identity. In his own words, "I was scared that Alberto Pena would 

find out I was using his identity" and "I know using someone else's 

identity is wrong and illegal. I used Alberto Pena's identity to 

stay in the country & to work & help my family." 

We add, moreover, that the case law gives no sustenance 

to the appellant's construct. In United States v. Savarese, we 

rejected the premise that "[a] name . . ., without more, cannot 

constitute a 'means of identification' for purposes of aggravated 

identity theft." 686 F.3d 1, 7 (1st Cir. 2012). To the contrary, 

"[t]he language of § 1028 . . . plainly contradicts this theory, 

defining a 'means of identification' as 'any name or number that 

may be used, alone or in conjunction with any other information, 

to identify a specific individual, including any . . . name, social 

security number, date of birth, [or] official State or government 
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issued driver's license or identification number . . . .'" Id. 

(quoting 18 U.S.C. § 1028(d)(7)(A)). 

The appellant tries to wriggle out from under Savarese. 

He makes much of the fact that he was using a social security 

number different from the number assigned to the real Pena. This 

distinction, however, does not make a dispositive difference: the 

appellant cannot avoid responsibility under section 1028A(a)(1) 

simply by attaching a different social security number to the true 

Pena's name and date of birth.9 In the last analysis, the statutory 

term "means of identification" does not require that the 

information used to identify the specific individual whose 

identity has been stolen must match that individual in every 

detail. Any other construction of the statute would be fatuous: 

it would enable a defendant to avoid responsibility under section 

1028A(a)(1) by the simple expedient of using a single piece of 

information that does not coincide with the victim. 

 

 9 The genesis of the appellant's social security number 

furnishes further evidence that the appellant misappropriated 

Pena's identity. The jury had available to it the appellant's 

application for a social security number, in which the appellant 

used Pena's name, date of birth, place of birth, and parentage. 

In addition, the appellant used his own green card (obtained under 

false pretenses), which contained Pena's alien number. As the 

district court perspicaciously noted: "any lingering doubt as to 

the association of the name with the true Alberto Pena's identity 

would have been dispelled by tracing the social security number 

used by [the appellant] to the original application for the 

number." De La Cruz III, 2014 WL 3925497, at *1. 
- 22 - 

The appellant makes no headway by hawking the Fourth 

Circuit's decision in United States v. Mitchell, 518 F.3d 230 (4th 

Cir. 2008), for the proposition that "non-unique identifiers" are 

"insufficient to identify a single, unique individual." In that 

case, the evidence, taken in the light most favorable to the 

government, showed only that the defendant had taken the name 

"Marcus Jackson" from a telephone book. See Mitchell, 518 F.3d at 

233. Noting that the defendant had used "a hopeless muddle of 

non-matching and matching information," the court held that the 

defendant's mere use of the name "Marcus Jackson" was insufficient 

to identify a specific individual. Id. at 236. It was careful to 

explain, however, that when "a non-unique identifier is coupled 

with other information to identify a specific individual, 'a means 

of identification of another person' is created." Id. at 234. 

That is exactly what happened here: the appellant used Pena's name 

and date of birth in applying for unemployment benefits, and those 

two pieces of information (taken in conjunction with one another) 

were sufficient to identify a specific individual — the real Pena. 

See 18 U.S.C. § 1028(d)(7). 

2. Theft of Public Funds (Count 1). The appellant 

argues that the government's proof was insufficient to establish 

that he stole money with the intent of depriving the United States 

of the use of that money and, therefore, that the district court 

erred in denying his motion for judgment of acquittal as to count 
- 23 - 

1. In support, he asserts that he "incorrectly, but genuinely, 

believed that because he worked and paid into the unemployment 

system under the Social Security number he was issued, he was 

therefore entitled to receive unemployment benefits until he could 

resume working to support himself and his family." 

This argument lacks force. The appellant never 

testified, and the record is utterly devoid of any evidence as to 

the appellant's innocent state of mind. The evidence before the 

jury pointed in the opposite direction: the DOL agent who 

interviewed the appellant in Burlington testified that the 

appellant admitted that he knew "100 percent" that his receipt of 

unemployment benefits was a crime and that he "didn't earn" those 

benefits. These admissions were enough to enable the jury to 

conclude that the appellant acted with the necessary criminal 

intent.10

The appellant makes little progress by pointing out that 

he paid income tax on the unemployment benefits that he received. 

Paying taxes on ill-gotten gains is as consistent with a desire 

that a crime go undetected as it is with a lack of criminal intent. 

 

 10 The appellant suggests that he made these admissions in 

reference to his unlawful presence in the United States. That 

suggestion is fanciful: the statements were made in the course of 

an interview by an agent who had made pellucid that she was a DOL 

criminal investigator, not an immigration officer; and the context 

gave the jury ample reason to think that the statements referred 

to the appellant's collection of unemployment benefits. 
- 24 - 

C. Jury Instructions.

The last leg of our journey takes us to the appellant's 

claim that the district court's jury instructions were faulty. 

The standard of review for claims of instructional error is not 

monolithic: such claims, if preserved, are reviewed either de novo 

or for abuse of discretion, depending on the nature of a particular 

claim. When the claim of error involves a question as to the legal 

sufficiency of a trial court's charge to the jury, such as a claim 

that the court omitted a legally required instruction or gave an 

instruction that materially misstated the law, our review is de 

novo. See, e.g., United States v. Nascimento, 491 F.3d 25, 33 

(1st Cir. 2007); Sanchez-Lopez v. Fuentes-Pujols, 375 F.3d 121, 

133 (1st Cir. 2004). When the claim of error focuses on the trial 

court's word choices, however, our review is for abuse of 

discretion. See, e.g., United States v. Hall, 434 F.3d 42, 56 

(1st Cir. 2006); Zimmerman v. Direct Fed. Credit Union, 262 F.3d 

70, 78-79 (1st Cir. 2001). 

We summed up these varying standards of review in Elliott 

v. S.D. Warren Co., 134 F.3d 1 (1st Cir. 1998), in which we stated 

that "[a] trial court is obliged to inform the jury about the 

applicable law, but, within wide limits, the method and manner in 

which the judge carries out this obligation is left to his or her 

discretion." Id. at 6. Sometimes, a reviewing court may have to 

employ these varying standards of review sequentially to resolve 
- 25 - 

a single claim of instructional error (for example, reviewing de 

novo to determine that a challenged instruction is legally correct 

and then reviewing for abuse of discretion to weigh the court's 

choices about how best to communicate that legal principle). See, 

e.g., United States v. DeStefano, 59 F.3d 1, 2 (1st Cir. 1995). 

With these standards in mind, we turn to the appellant's 

claim of instructional error. That claim, which was preserved 

below, zeros in on the district court's charge with respect to the 

second element of aggravated identity theft. The court told the 

jury that it had to find that "in committing the offense, the 

defendant used a means of identification of another." It added 

that the jury had to "find that the means of identification played 

a role in committing the offense of theft of money." 

The appellant posits that the phrase "played a role" 

impermissibly diluted the government's burden of proving this 

element of aggravated identity theft. In his view, the district 

court "was required . . . to state that the 'means of 

identification' used must cause or be essential to the commission 

of the offense." 

This view is meritless. 18 U.S.C. § 1028A(a)(1) imposes 

criminal liability on a person who "during and in relation to [an 

enumerated crime], knowingly . . . uses, without lawful authority, 

a means of identification of another person." The statute nowhere 

says that the means of identification must cause or be essential 
- 26 - 

to the enumerated crime — nor is there any valid reason for us to 

read such a requirement into the statute. 

In all events, a district court is entitled to some 

latitude in deciding how best to communicate legal principles to 

jurors. See United States v. Paniagua-Ramos, 251 F.3d 242, 245 

(1st Cir. 2001). The court below did not exceed that latitude. 

Its "plays a role" language closely mirrors the statutory language 

("during and in relation to"), at least in practical effect, and 

the court neither erred nor abused its discretion in employing 

this phraseology. 

III. CONCLUSION

We need go no further. For the reasons elucidated above, 

the judgment is 

Affirmed.