676 F.3d 237 (1st Cir. 2012), 10-1994, United States v. Valerio

Docket Nº:10-1994.
Citation:676 F.3d 237
Opinion Judge:TORRUELLA, Circuit Judge.
Party Name:UNITED STATES of America, Appellee, v. Lizbeth VALERIO, Defendant, Appellant.
Attorney:Peter J. Cyr, for appellant. Vassili N. Thomadakis, Assistant United States Attorney, with whom Carmen M. Ortiz, United States Attorney, was on brief for appellee.
Judge Panel:Before LYNCH, Chief Judge, TORRUELLA and HOWARD, Circuit Judges.
Case Date:April 17, 2012
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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676 F.3d 237 (1st Cir. 2012)

UNITED STATES of America, Appellee,


Lizbeth VALERIO, Defendant, Appellant.

No. 10-1994.

United States Court of Appeals, First Circuit.

April 17, 2012

Heard Oct. 5, 2011.

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Peter J. Cyr, for appellant.

Vassili N. Thomadakis, Assistant United States Attorney, with whom Carmen M. Ortiz, United States Attorney, was on brief for appellee.

Before LYNCH, Chief Judge, TORRUELLA and HOWARD, Circuit Judges.

TORRUELLA, Circuit Judge.

Defendant-Appellant Lizbeth Valerio (" Valerio" ) was convicted of three counts of mail fraud under 18 U.S.C. § 1341 and one count of aggravated identity theft under 18 U.S.C. § 1028A. After the jury rendered its guilty verdict, Valerio filed two motions: (1) a motion for acquittal on the aggravated identity theft count due to insufficient evidence; and (2) a motion for a new trial on all counts due to ineffective assistance of counsel. The district court denied both motions, and Valerio now appeals. We find that there was sufficient evidence to sustain Valerio's conviction and that she was not prejudiced by her trial counsel's performance. Accordingly, we affirm.

I. Background

A. Theft of Rosa Hernández's Identity

" Because this appeal involves a challenge to the sufficiency of the government's proof, we rehearse the facts in the

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light most favorable to the jury verdict, consistent with record support." United States v. Dwinells, 508 F.3d 63, 65 (1st Cir.2007) (citing United States v. Carroll, 105 F.3d 740, 742 (1st Cir.1997)).

Valerio is a native and citizen of Costa Rica. On March 20, 1991, Valerio entered the United States illegally and made her way to New Jersey. There, her companion, Carlos Gómez (" Gómez" ), paid $500 to obtain a birth certificate and Social Security card in the name of Rosa Hernández (" Hernández" ). Hernández is a real person who resides in Puerto Rico. The birth certificate listed the birthplace for Hernández as Adjuntas, Puerto Rico, included the names and birthplaces of Hernández's parents (also Adjuntas, Puerto Rico), and had an official stamp from the municipality.

Valerio eventually settled in Massachusetts. Over the course of more than a decade, from 1995 until 2007, Valerio used Hernández's identity to hold a variety of jobs. Valerio also used the name " Rosa Hernández" to pay taxes, open numerous lines of credit, purchase two cars, and take out a loan to purchase a home. Furthermore, Valerio used Hernández's identity to apply for a driver's license in Massachusetts. The license application form required a Social Security number (" SSN" ) and stated that the number provided would be verified with the Social Security Administration (" SSA" ). Valerio provided Hernández's SSN and opted to use that same number as her driver's license number, declining the option of using a random number instead.

At the same time she was using Hernández's identity, Valerio applied for various welfare benefits for herself and her family, including food stamps and housing assistance, under her real name. Each of the agencies to which Valerio applied required her to truthfully disclose all of her income and assets. However, Valerio withheld information regarding income she earned and assets she held under Hernández's name. In addition, Valerio used Hernández's name to give credence to information that she was providing to government agencies; she mailed letters purporting to be from Hernández to state and federal agencies stating that Hernández was Valerio's " supervisor" and vouching for Valerio's employment and volunteer activities.

At various times while Valerio was using Hernández's identity, she received credit reports for " Rosa Hernández" from credit reporting agencies. These reports listed various addresses for " Rosa Hernández," including Valerio's address in Massachusetts and other addresses in Massachusetts at which Valerio had never lived. The reports also listed an address for " Rosa Hernández" in Adjuntas, Puerto Rico. In response to reports listing addresses other than her own, Valerio submitted correction forms stating she had never lived at those addresses. In addition, Valerio received a credit report listing Hernández's outstanding student loan debt at Pontificia Universidad Católica (" Pontificia" ) in Puerto Rico. Valerio submitted a correction form stating that she had never studied at Pontificia, and the reporting agency deleted that debt from her report.

B. Valerio's Apprehension

In 2006, when the real Rosa Hernández tried to purchase a car, she learned that someone in Massachusetts had numerous lines of credit under her name. Hernández filed a police report with the Chelsea, Massachusetts Police Department in 2007. The police tied the " Rosa Hernández" name being used in Chelsea to a subsidized housing unit rented by Valerio. The police went to Valerio's home and asked her whether she knew Hernández. Valerio replied that Hernández was a friend of

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hers. The police apprehended Valerio, searched her, and later searched her apartment. The police found numerous documents relating to both Valerio's true identity and her assumed " Rosa Hernández" identity, including the Social Security card, birth certificate, and credit reports. These documents were organized by identity into two separate drawers, with one drawer dedicated to Valerio's real identity and the other dedicated to the " Rosa Hernández" identity.

C. Pretrial Proceedings and Trial

Valerio was represented at trial by Robert F. Collins (" Collins" ). Collins did not file certain pretrial motions that Valerio claims he should have filed. Collins did not file any written pretrial motions to suppress Valerio's statement to the police that Hernández was her friend. Collins also did not file a motion to sever the aggravated identity theft count from the mail fraud counts. Moreover, Collins did not file witness or exhibit lists, and he failed to use the court's electronic filing system for documents he did file.

During his opening statement at trial, Collins correctly informed the jury that under Flores-Figueroa v. United States, 556 U.S. 646, 129 S.Ct. 1886, 1888, 173 L.Ed.2d 853 (2009), the government would have to prove that Valerio knew that the identification documents she was using belonged to an actual person in order to convict Valerio of aggravated identity theft. During its case, the government introduced evidence of Valerio's use of Hernández's identity through various witnesses, including the officer who arrested Valerio and Hernández herself. Collins cross-examined Hernández, emphasizing that she and Valerio had never met. The government also introduced evidence of Valerio's false statements in her written applications for various types of government assistance.

At the close of the government's case, Collins moved on Valerio's behalf for a judgment of acquittal under Fed.R.Crim.P. 29 on the aggravated identity theft charge, arguing that the government failed to carry its burden under Flores-Figueroa of proving that Valerio knew that Hernández was an actual person. The judge denied this motion, and Collins proceeded to present the defense's case. Valerio testified that she had never met Hernández, did not know she was a real person, and had no way of knowing whether the " Rosa Hernández" birth certificate or Social Security card was authentic.

Under cross-examination, Valerio admitted that she possessed the birth...

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