U.S. v. Herrera-Martinez

• Citation: 525 F.3d 60
• Decision Date: 30 April 2008
• Docket Number: No. 07-1363.,07-1363.
• Parties: UNITED STATES of America, Appellee, v. Elsa Odina HERRERA-MARTINEZ, a/k/a Rosana Rolon-Alvarado, a/k/a Rosana R. Alvarado, a/k/a Rosana Rolon, a/k/a Rosana A. Rolon, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

525 F.3d 60

UNITED STATES of America, Appellee, v. Elsa Odina HERRERA-MARTINEZ, a/k/a Rosana Rolon-Alvarado, a/k/a Rosana R. Alvarado, a/k/a Rosana Rolon, a/k/a Rosana A. Rolon, Defendant, Appellant.

No. 07-1363.

United States Court of Appeals, First Circuit.

Heard March 5, 2008.

Decided April 30, 2008.

Jeffrey B. Rubin for appellant.

Randall E. Kromm, Assistant United States Attorney, with whom Michael J. Sullivan, United States Attorney, was on brief, for appellee.

Before LIPEZ and HOWARD, Circuit Judges, and DiCLERICO,^* Senior District Judge.

HOWARD, Circuit Judge.

Elsa Odina Herrera-Martinez ("Herrera") was convicted by a jury of three counts stemming from her use of personal information, including a Social Security number, that did not belong to her in order to secure subsidized housing under a federal program. She maintains that she cannot be guilty of these offenses because her behavior does not constitute a crime under the three statutes at issue. We do not read the statutes as she does, and we affirm.

I. Facts

We rehearse the facts in the light most favorable to the jury's verdict. United States v. Girouard, 521 F.3d 110, 114 (1st Cir.2008); United States v. Richardson, 515 F.3d 74, 76 (1st Cir.2008). When defendants challenge the denial of a motion for a judgment of acquittal, "we review the evidence and all legitimate inferences which may be drawn therefrom in the light most favorable to the government."¹ United States v. Olivo-Infante, 938 F.2d 1406, 1408 (1st Cir.1991).

High Point Village, a housing development in Roslindale, Massachusetts, provided low-income housing in two ways. First it operated a tier system providing below-market rent that varied according to the tenant's income. Second, it operated a federally funded rent subsidy program often referred to as Section 8 housing. See 42 U.S.C. §§ 1437 et seq. There was a waiting list for this second program because there were more income-eligible tenants than Section 8 vouchers available. Tenants in the tier program were automatically added to the waiting list for the Section 8 program when their income qualified them for it. High Point Village then automatically distributed vouchers, as they came available, to tenants on the waiting list.

Herrera, an undocumented immigrant from the Dominican Republic, took up residence at High Point Village, using the name and identifying information (including the Social Security number) of one Rosana Rolon Alvarado. Herrera also used a Massachusetts identification card bearing her own picture but Alvarado's information. When Herrera reported a drop in her income, she became eligible for the Section 8 subsidy, but only because she was using the identity of Alvarado, an American citizen. (As an undocumented alien, Herrera could not qualify for federally subsidized housing under her real identity, regardless of her income.)

In April 2005, a Section 8 voucher was automatically assigned to Herrera. In honoring the voucher, the United States Department of Housing and Urban Development paid more than 85% of her rent for the next thirteen months. Soon after HUD began paying part of Herrera's rent, a federal official became suspicious that Herrera was not who she claimed to be. In January 2006 a HUD special agent attended, undercover, a "recertification" proceeding conducted by High Point Village; he observed Herrera filling out forms certifying she was a United States citizen and using Alvarado's information.

Herrera was arrested in May 2006, after she moved out of High Point Village. The three-count indictment charged her with use of another's Social Security number, 42 U.S.C. § 408(a)(7)(B); knowingly converting public money or property, 18 U.S.C. § 641; and aggravated identity theft, 18 U.S.C. § 1028A. Herrera consistently asserted that her conduct did not fall under any of these three statutes. She moved to quash the indictment and dismiss the case before trial and moved for directed verdict after presentation of the government's evidence. She raises the same issues on appeal.

II. Standard of Review

In reviewing a motion for directed verdict, we resolve legal questions de novo. United States v. Jimenez, 507 F.3d 13, 19 (1st Cir.2007). Delineating the scope of the elements of a given offense presents such legal questions. Id. (whether deceased persons are encompassed in the word "person" as used in 18 U.S.C. § 1028A reviewed de novo); United States v. McFarland, 445 F.3d 29, 31 (1st Cir. 2006) (definition of "actual physical control" of a motor vehicle in 36 C.F.R. § 4.23(a) subject to de novo review).

III. Discussion

Herrera claims that none of the three statutes under which she was convicted apply to the conduct of which she was accused. First, she claims that conviction under 18 U.S.C. § 641 requires proof of elements not present in her case. Next, she claims that 42 U.S.C. § 408(a)(7)(B) prohibits the use of a false Social Security number only to obtain a Social Security payment, not to obtain other benefits. Finally, she says that because she is innocent of the first two charges as a matter of law she must be acquitted of aggravated identity theft because it requires as a predicate one of the other two offenses. We address the arguments pertaining to each statute in turn.

A. 18 U.S.C. § 641

Section 641 of Title 18² was drafted "to collect from scattered sources crimes so kindred as to belong in one category": those that prohibit unlawful taking from the government. Morissette v. United States, 342 U.S. 246, 266-67, 72 S.Ct. 240, 96 L.Ed. 288 (1952). Herrera levels three challenges at her conviction under this statute. First, she argues that the statute requires the government to prove "asportation," the carrying-away element of common law larceny. Next, she claims that in order to obtain a conviction under § 641, the government is required to prove an actual loss, and here it did not. Finally, Herrera argues that what she obtained was a residential lease, not a "thing of value of the United States." We find none of these arguments persuasive.

Herrera argues that each of the older crimes from which § 641 was forged contained as an element asportation, a physical carrying away, and that she has not carried anything away from the government. But the enactment of § 641 did more than aggregate existing crimes. The statute also added "knowingly converts," to the list of proscribed activities, as well as "steals," words that do not implicate the common law definition of larceny. See id. This, Justice Jackson wrote for the Court, was an attempt to close gaps between the original common law offenses.

What has concerned codifiers of the larceny-type offense is that gaps or crevices have separated particular crimes of this general class and guilty men have escaped through the breaches. The books contain a surfeit of cases drawing fine distinctions between slightly different circumstances under which one may obtain wrongful advantages from another's property. The codifiers wanted to reach all such instances.

Id.; see also United States v. Crutchley, 502 F.2d 1195, 1201 (3d Cir.1974) (citing Morissette and holding that larceny by trick is encompassed within § 641). Where Congress has gone beyond the common law terms used to define a crime, we will not presume the crime is limited to its common law contours.

Moreover, reading the statute to require asportation would perforce limit § 641 to tangible property, as intangibles cannot be carried away. This reading of the statute is too narrow and is contradicted by the great weight of authority. See United States v. Barger, 931 F.2d 359, 368 (6th Cir.1991) ("[I]nformation itself is enough to meet the `thing of value' element of the statute."); United States v. May, 625 F.2d 186, 192 (8th Cir.1980) ("`thing of value' . . . was the flight time itself" where National Guard planes were used for personal flights); United States v. Girard, 601 F.2d 69, 71 (2d Cir.1979) ("Although the content of a writing is an intangible, it is nonetheless a thing of value."); see also United States v. Collins, 56 F.3d 1416, 1419 (D.C.Cir.1995) ("Congress intended to enact a broad prohibition against the misappropriation of anything belonging to the national government, unrestrained by the fine and technical distinctions of the common law."). We hold that asportation is not required in every conviction under 18 U.S.C. § 641.

Herrera also contends that § 641 requires the government to prove an actual loss. We disagree. For this proposition, Herrera cites United States v. Collins, 464 F.2d 1163 (9th Cir.1972) (2-1).³ That case concerned a warrant drawn up by a municipal agency, and cashed by someone who stole it; the Ninth Circuit determined that since the funds released by the bank were bank funds, not government funds, and the warrant itself was not the property of the government, the government had failed to prove a loss and the defendant was entitled to acquittal. First, Collins is inapplicable to the facts of this case; here, the payments made by HUD were government funds. But more importantly, Collins is not the law of this circuit. See United States v. Santiago, 729 F.2d 38, 40 (1st Cir.1984) ("The statute, however, does not require a showing that the United States was prejudiced. It merely requires the government to show that a `thing of value of the United States' has been knowingly received, concealed or retained by the accused with improper intent . . . ." (quoting 18 U.S.C. § 641)). Nor, for that matter, has Collins been followed by any other circuit. See United States v. Milton, 8 F.3d 39, 44 (D.C.Cir.1993); United States v. Scott, 784 F.2d 787, 791 (7th Cir.1986) (per curiam) (collecting cases in the Seventh Circuit); Barnes, 761 F.2d at 1036 (Fifth Circuit). We doubt that we are free to revisit this determination, and in any event decline to do so.⁴

Finally, Herrera argues that obtaining subsidized housing is not a violation of 18 U.S.C. § 641 because the...