United States Court of Appeals

For the First Circuit

No. 19-1953

UNITED STATES OF AMERICA,

Appellee,

v.

JOHN DOE,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Douglas P. Woodlock, U.S. District Judge]

Before

Lynch, Thompson, and Barron,

Circuit Judges.

Derege B. Demissie, with whom Demissie & Church and Antonio 

Espinoza were on brief, for appellant.

Christine J. Wichers, Assistant United States Attorney, with 

whom Nathaniel R. Mendell, Acting United States Attorney, was on 

brief, for appellee.

January 20, 2022
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BARRON, Circuit Judge. In September 2019, the appellant 

in this case was convicted in the United States District Court for 

the District of Massachusetts on six counts that covered a range 

of federal crimes. Each of the counts stemmed from his use of the 

social security number assigned to a José Manuel Rodriguez when 

the appellant allegedly was not in fact that person. The appellant

now challenges each of the resulting convictions in this appeal.

Notably, although the appellant continues to maintain 

that his legal name is José Manuel Rodriguez and that he has gone 

by no other name, he is referred to in the charges in the indictment 

that underlie the convictions at issue in this appeal as "John 

Doe." Thus, given the fact of those convictions, we similarly 

refer to the appellant as "John Doe" in considering his challenges 

to them on the two grounds that he argues to us: that the District 

Court improperly admitted into evidence a form that he submitted 

to the Social Security Administration (SSA) in 2014, and that the 

District Court wrongly permitted a former immigration officer to 

testify at Doe's federal criminal trial to the answers that Doe 

gave in response to questioning at Miami International Airport. 

Because we see no merit in either ground for overturning any of 

the convictions, we affirm each of them. 

I.

In July 2018, a grand jury in the District of 

Massachusetts indicted Doe on six counts: one count of using a 
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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.

IV.

For the aforementioned reasons, we affirm.