FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MASSACHUSETTS [Hon. Richard G. Stearns, U.S. District Judge]
Eduardo Masferrer, with whom Masferrer & Associates, PC
was on brief, for appellant.
E. Richardson, Assistant United States Attorney, with whom
Carmen M. Ortiz, United States Attorney, was on brief, for
Torruella, Selya and Thompson, Circuit Judges.
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
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).
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).
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
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.
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
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.
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).
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
divide our discussion of the issues into three segments,
corresponding to the components of the appellant's
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).
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.
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 appellant consented to a frisk and told
officers that they could enter the apartment. Once inside,
Graham arrested the appellant.
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.
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 anent the
immigration matter and that other officers would process him
with respect to criminal charges.
his administrative processing concluded, the appellant was
taken to a different interview room. 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.
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
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 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.
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 Statesv.Feliz, 794 F.3d 123, 130 (1st Cir. 2015). The
fact-based aspect of this review is "highly
deferential." United Statesv.Floyd, 740 F.3d 22, 33 (1st Cir. 2014). "If any
reasonable view of the evidence supports the denial of a
motion to ...