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SJC-12371

COMMONWEALTH vs. EMILIA ESCOBAR.

Suffolk. January 10, 2018. - March 29, 2018.

Present: Gants, C.J., Lowy, Budd, Cypher, & Kafker, JJ.

False Impersonation & Identity Fraud. Fraud. Practice, 

Criminal, Plea. Words, "Anything of value."

Complaint received and sworn to in the Roxbury Division of 

the Boston Municipal Court Department on October 2, 2003.

A motion to withdraw a plea of guilty, filed on November 

18, 2016, was heard by Kenneth J. Fiandaca, J.

The Supreme Judicial Court granted an application for 

direct appellate review.

Edward Crane for the defendant.

Dara Z. Kesselheim, Assistant District Attorney, for the 

Commonwealth.

BUDD, J. The defendant, Emilia Escobar, pleaded guilty to 

identity fraud pursuant to G. L. c. 266, § 37E (b), in 

connection with providing a false name to a police officer 

during a traffic stop. Here, she appeals from the denial of a 
2

motion to withdraw the guilty plea, claiming that there were 

insufficient facts to establish that she attempted to receive,

or received, "anything of value" within the meaning of § 37E 

(b). Because we conclude that the phrase "anything of value," 

as it appears in the statute, does not include avoiding criminal 

prosecution, we reverse.

Background. The facts are uncontested. In October, 2002, 

a State police trooper stopped the defendant for driving an 

automobile with an excessively loud exhaust. The defendant told 

the trooper falsely that her name was Ana Escobar, gave a false 

date of birth, and said that she did not have her license with 

her. Upon conducting a check with the registry of motor 

vehicles, the trooper learned that Ana Escobar's license was 

suspended and issued a citation in Ana Escobar's name.

Almost one year later, an investigation revealed that the 

defendant had been untruthful at the time of the stop. A 

complaint was issued charging the defendant with multiple 

infractions in addition to identity fraud: operating a motor 

vehicle with a suspended license;1 improper operation of a motor 

vehicle; failing to possess a license while operating a motor 

vehicle; and providing a false name to a police officer.

 

1 A check with the registry of motor vehicles revealed that 

the defendant, too, had a suspended license.
3

In March, 2004, pursuant to a plea agreement, the defendant 

admitted to sufficient facts on all charges except the charge of

providing a false name to a police officer, which was dismissed. 

Charges of operating a motor vehicle with a suspended license 

and identity fraud were continued without a finding for nine 

months, then dismissed, and the remaining charges were placed on 

file.

Over a decade later, in November, 2016, the defendant filed 

a motion to withdraw her plea to the charge of identity fraud, 

alleging that there was an insufficient factual basis for the 

charge.2 After a hearing, the judge denied the defendant's 

motion. The defendant appealed, and we allowed her application 

for direct appellate review.

Discussion. In order for a judge to accept a guilty plea, 

he or she must find "sufficient facts on the record to establish 

each element of the offense." Commonwealth v. Hart, 467 Mass. 

 

2 There is no explanation in the record for why the 

defendant waited more than ten years to attempt to withdraw her 

plea. However, in the memorandum supporting her motion, the 

defendant argues that her admission to sufficient facts for a 

finding of guilty on the identity fraud charge could have 

significant consequences on her status as a legal permanent 

resident and the risk of deportation. See 8 U.S.C. 

§ 1227(a)(2)(A)(ii) (2012) ("Any alien who at any time after 

admission is convicted of two or more crimes involving moral 

turpitude . . . is deportable"); Jordan v. De George, 341 U.S. 

223, 227 (1951) ("Without exception, [F]ederal and [S]tate 

courts have held that a crime in which fraud is an ingredient 

involves moral turpitude"); 8 U.S.C. § 1101(a)(48)(A)(i) (2012) 

(defining "conviction" to include admission of sufficient facts 

to warrant finding of guilt).
4

322, 325 (2014), quoting Commonwealth v. DelVerde, 398 Mass. 

288, 297 (1986). Ordinarily, during a plea colloquy the

prosecutor recites the facts that the Commonwealth would have 

proved if the case had gone to trial. The defendant indicates 

whether he or she agrees with the facts as presented and may 

provide clarifications. The judge then determines whether the

facts as stated establish that a particular crime has been 

committed. See Mass. R. Crim. P. 12 (c) (3), as appearing in 

470 Mass. 1501 (2015).

In this case, although the judge accepted the defendant's 

plea of guilty to identity fraud on the facts as outlined supra, 

the defendant now argues that the facts the Commonwealth 

presented did not establish each element of that offense. We 

normally review a motion judge's decision on a defendant's 

motion to withdraw her guilty plea for clear error or abuse of 

discretion. Hart, 467 Mass. at 324. However, where, as here, 

there is a question of statutory interpretation, we review the 

matter de novo. Commonwealth v. Martin, 476 Mass. 72, 75 

(2016).

1. The identity fraud statute. General Laws c. 266,

§ 37E, is the identity fraud statute. Subsection (b) of § 37E

provides:

"Whoever, with intent to defraud, poses as another person 

without the express authorization of that person and uses 

such person's personal identifying information to obtain or 
5

to attempt to obtain money, credit, goods, services, 

anything of value, any identification card or other 

evidence of such person's identity, or to harass another 

shall be guilty of identity fraud . . . ."

The elements of identity fraud, thus, are "that a defendant (1) 

posed as another person; (2) did so without that person's 

express authorization; (3) used the other person's identifying 

information to obtain, or attempt to obtain, something of value; 

and (4) did so with the intent to defraud." Commonwealth v. 

Giavazzi, 60 Mass. App. Ct. 374, 376 (2004) (footnote omitted).

The defendant argues that the Commonwealth failed to 

present any facts tending to establish that she attempted to 

obtain something of value pursuant to § 37E (b) because the 

evasion (or the attempted evasion) of criminal prosecution is 

not something of value within the meaning of the statute.3 In 

contrast, the Commonwealth argues that "value" as it appears in 

§ 37E (b) includes intangible things, including avoiding 

criminal charges. We agree with the defendant.

The question whether the defendant committed identity fraud

depends upon what the Legislature meant by the phrase "anything 

of value" within the context of § 37E (b). See Pyle v. School 

Comm. of S. Hadley, 423 Mass. 283, 285 (1996) ("Our primary duty 

is to interpret a statute in accordance with the intent of the 

 

3 Because we conclude that the Commonwealth has failed to 

establish every element of the offense, we do not reach the 

question whether the actions of the defendant defrauded a police 

officer within the meaning of § 37E (b).
6

Legislature"). See also Boston Police Patrolmen's Ass'n v. 

Boston, 435 Mass. 718, 719-720 (2002), and cases cited. "We 

derive the words' usual and accepted meaning from sources 

presumably known to the statute's enactors, such as their use in 

other legal contexts and dictionary definitions." Commonwealth

v. Campbell, 415 Mass. 697, 700 (1993), quoting Commonwealth v. 

Zone Book, Inc., 372 Mass. 366, 369 (1977).

The statute does not define "value," and the ordinary 

meaning of the term can encompass both tangible and intangible 

things. Webster's dictionary defines "value" as:

"[1] the amount of a commodity, service, or medium of 

exchange that is the equivalent of something else: a fair 

return in goods, services, or money . . . [2] monetary 

worth of something: marketable price usu. in terms of a 

medium of exchange . . . [3] relative worth, utility or 

importance: degree of excellence: status in a scale of 

preferences . . . ."

Webster's Third New International Dictionary 2530 (1993). The 

fact that the term has multiple meanings does not shed light on 

whether its use in the statute is meant to include all of them.

See Commonwealth v. Scott, 464 Mass. 355, 358 (2013) (term with 

multiple meanings may have only one within context of statute). 

"When the meaning of a statute is not clear from its plain 

language, well-established principles of statutory construction 

guide our interpretation." Federal Nat'l Mtge. Ass'n v. Rego, 

474 Mass. 329, 334 (2016).
7

a. Ejusdem generis. Viewing the term "value" in the 

context of the statute is instructive. One who "uses 

[another's] personal identifying information to obtain or to 

attempt to obtain money, credit, goods, services, [or] anything 

of value[] . . . shall be guilty of identity fraud." § 37E (b).

The canon of statutory interpretation known as ejusdem generis 

limits "general terms which follow specific ones to matters 

similar to those specified." Commonwealth v. Gallant, 453 Mass. 

535, 542 (2009), quoting Powers v. Freetown–Lakeville Regional 

Sch. Dist. Comm., 392 Mass. 656, 660 n.8 (1984). See Banushi v. 

Dorfman, 438 Mass. 242, 244 (2002).4

Ejusdem generis requires that the general phrase "anything 

of value" in the statute be interpreted to mean only those 

things that share the characteristics of the terms that appear 

before it, here, "money, credit, goods, [or] services." As the 

terms "money," "credit," "goods," and "services" all refer to

that which has a market or monetary value, the phrase "anything 

of value" should be limited similarly to that which can be 

exchanged for a financial payment.5 See Banushi, 438 Mass. at 

 

4 Meaning "of the same general kind or class," ejusdem 

generis is an English common-law principle of statutory 

construction that can be traced back to 1596. A. Scalia and 

B.A. Garner, Reading Law: The Interpretation of Legal Texts 

§ 32, at 199, 200 (2012).

5 The Wisconsin case upon which the Commonwealth relies is 

distinguishable. Wisconsin has an identity fraud statute 
8

244 (limiting meaning of "building" to place of public or 

commercial use where statutory term was preceded by "place of 

assembly, theatre, special hall, public hall, factory, workshop,

[or] manufacturing establishment"); Powers, 392 Mass. at 660

(limiting meaning of "or other good cause" in statute to poor 

performance where phrase was preceded by "inefficiency, 

incapacity, unbecoming conduct, [or] insubordination").

The Commonwealth argues that if the Legislature had 

intended to limit the statute in such a way, then the phrase

"anything of value" would be unnecessary and superfluous. We 

are not persuaded. The phrase serves to encompass any other 

items that do not appear but are similar to those items that do 

appear. Adopting the Commonwealth's view would vitiate the 

statutory canon of ejusdem generis; the more general term would 

always strip the more specific terms of any meaning whatsoever. 

See Santos v. Bettencourt, 40 Mass. App. Ct. 90, 93 (1996).

b. Related subsections. A review of other relevant 

subsections of G. L. c. 266, § 37E, that refer to financial harm 

 

similar to ours in that it punishes anyone who "intentionally 

uses or attempts to use any personal identifying information or

personal identification document of an individual to obtain 

credit, money, goods, services, or anything else of value

. . . ." Wis. Stat. § 943.201(2). In State v. Peters, 263 Wis. 

2d 475, 482 (2003), the defendant was convicted under 

Wisconsin's identity fraud statute for providing a false 

identity so as to receive a lower bail amount. Id. at 478. The

Wisconsin Supreme Court upheld the conviction concluding that 

bail is a form of credit. Id. at 485. Thus, the court did not 

need to interpret the phrase "anything else of value."
9

to victims reinforces our reading of § 37E (b). See Chin v. 

Merriot, 470 Mass. 527, 532 (2015) (to ascertain legislative 

intent we may "consider . . . other sections of the statute and 

examine the pertinent language in the context of the entire 

statute"). See also Quincy City Hosp. v. Rate Setting Comm'n, 

406 Mass. 431, 442 (1990).

Section 37E (a) provides several definitions for the 

purposes of § 37E, including "victim," which it defines as "any 

person who has suffered financial loss or any entity that 

provided money, credit, goods, services, or anything of value 

and has suffered financial loss as a direct result of the 

commission or attempted commission of a violation of this 

section."6 G. L. c. 266, § 37E (a). Similar to § 37E (b),

§ 37E (c) prohibits obtaining the personal identifying 

information of another without his or her permission for the 

purpose of obtaining "money, credit, goods, services, anything 

of value, any identification card or other evidence of such 

person's identity, or to harass another." Last, § 37E (d) 

requires anyone found guilty of identity fraud to make 

restitution to the victim for financial losses suffered. These 

 

6 Significantly, although technically Ana Escobar could be 

considered the victim in this case, there is no allegation that 

she (or anyone else) suffered financial loss as a result of the 

misuse of her identity.
10

provisions make it clear that the Legislature intended the whole 

of § 37E to prohibit using a false identity for financial gain.

c. Neighboring sections. Viewing § 37E (b) in the context 

of statutory provisions that precede it also is illuminating. 

See Commonwealth v. Levia, 385 Mass. 345, 348 (1982) (discussing 

import of provision's location in code). General Laws c. 266, 

§§ 37A, 37B, 37C, and 37D, each criminalize conduct pertaining 

to credit cards. Section 37A provides definitions relating to 

the misuse of credit cards. Section 37B criminalizes certain 

types of that misuse, such as making false statements for the 

purpose of procuring a credit card. Section 37C prohibits 

additional types of misuse, such as "obtain[ing] control over a 

credit card" with intent to defraud. Finally, § 37D bars 

fraudulent publication of certain credit card information.

Given that each of the four provisions that precede § 37E deals

with credit card misuse or fraud, it is likely that the 

Legislature similarly intended that § 37E (b) criminalize use of 

a false identity in connection with financial gain or to affect 

the credit of another.

d. Legislative history. Our interpretation of § 37E (b) 

also is buttressed by supplementary documentation published at 

the time the statute was enacted. See Commonwealth v. 

Mogelinski, 466 Mass. 627, 633 (2013), quoting Wright v. 

Collector & Treas. of Arlington, 422 Mass. 455, 457-458 (1996) 
11

(statutory interpretation must be reasonable and supported by 

purpose and history of statute).

A March, 1998, memorandum released by the Senate Post Audit 

and Oversight Committee described § 37E (b) as a way to "crack 

down on identity fraud, a scam that can cause financial 

nightmares for its victims." Senate Post Audit and Oversight 

Committee, Jacques, Jajug, and Caron Announce That Identity 

Fraud Legislation Becomes Law Tomorrow at 1 (March 2, 1998). 

Elaborating on these concerns, the then-chair of the committee, 

Senator Cheryl A. Jacques, described identity fraud as a crime 

that "has been occurring for years, destroying hundreds of 

credit histories and reputations." Id. at 2. The memorandum

notes that identity fraud often occurs where someone uses 

another's identity to "gain credit, run up debts, and taint his 

credit history." Id. Further, a memorandum to the thenGovernor from the office of legal counsel recommending signing 

the bill notes that identity fraud often "is used to harass 

victims of domestic violence (e.g., to obtain goods or services 

or to disconnect utilities, etc.)." Memorandum from Office of 

the Governor's Legal Counsel to Governor Argeo P. Cellucci, 

House Bill No. 5174, "An Act Relative to False Impersonation and 

Identity Fraud" at 2 (November 23, 1998).

2. Statutes directly related to providing a false name to 

police. Finally, we find additional support for our conclusion 
12

in comparing § 37E (b) to the two statutes that directly 

prohibit providing a false name to the police.

The first, G. L. c. 90, § 25, enacted in 1906, directly and 

unambiguously prohibits the exact conduct at issue here, i.e., 

providing a false name to a police officer while operating a 

motor vehicle.7,8 See St. 1906, c. 412, § 6. It is unlikely 

that the Legislature intended also to punish the same conduct 

indirectly by enacting § 37E (b) decades later. See Alliance to 

Protect Nantucket Sound, Inc. v. Energy Facilities Siting Bd., 

457 Mass. 663, 673 (2010) ("We presume that the Legislature acts 

with full knowledge of existing laws").

The second, G. L. c. 268, § 34A, bars providing a false 

name to a police officer following an arrest.9 Significantly, it 

was enacted at the same time, and in the same bill, as § 37E

(b). St. 1998, c. 397, § 2. If the Legislature had intended 

for § 37E (b) to encompass providing a false name to a police 

 

7 The statute provides in pertinent part: "Any person who, 

while operating or in charge of a motor vehicle, shall . . . 

give a false name or address, [to] any police officer . . . 

shall be punished . . . ." G. L. c. 90, § 25.

8 As discussed supra, the defendant was charged with 

violating this statute; the charge was later dismissed as part 

of a plea deal.

9 The statute provides in pertinent part: "Whoever 

knowingly and willfully furnishes a false name or Social 

Security number to a law enforcement officer or law enforcement 

official following an arrest shall be punished . . . ." G. L. 

c. 268, § 34A.
13

officer, it need not have enacted G. L. c. 268, § 34A. See 

Commonwealth v. J.A., 478 Mass. 385, 387 (2017).

Together, the two statutes that directly prohibit providing 

a false name to a police officer make it unlikely that § 37E (b) 

is also meant to indirectly prohibit the same conduct. See 

J.A., supra.

Conclusion. The order of the Boston Municipal Court judge 

denying the defendant's motion to withdraw her plea of guilty is 

reversed, and the matter is remanded for entry of an order 

consistent with this opinion.

So ordered.