United States of America v. Aldo Persichilli

The Hon. David H. Souter, Associate Justice (Ret.) of the *
Supreme Court of the United States, sitting by designation.
United States Court of Appeals
For the First Circuit
No. 09-1799
UNITED STATES OF AMERICA,
Appellee,
v.
ALDO PERSICHILLI,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Michael A. Ponsor, U.S. District Judge]
Before
Boudin, Circuit Judge,
Souter, Associate Justice, *
and Howard, Circuit Judge.
Wendy Sibbison, by appointment of the court, for appellant.
Cynthia A. Young, Assistant United States Attorney, with whom
Carmen M. Ortiz, United States Attorney, was on brief for appellee.
June 14, 2010

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BOUDIN, Circuit Judge. Aldo Persichilli was tried and
convicted of knowingly possessing a Social Security card with
intent to alter it, 42 U.S.C. § 408(a)(7)(C) (2006) (”the
alteration count”), and of aggravated identity theft, 18 U.S.C. §
1028A (2006) ("the identity theft count"), for which the intent to
alter charge was the predicate offense. The relevant background
facts can be briefly summarized.
In October 2006, Persichilli became a fugitive from
justice, and in February 2007, U.S. Marshals found him at a motel
in Wilbraham, Massachusetts. Certain items in his room brought
Secret Service agents to the scene, and their search of the room
and Persichilli's car uncovered two laptops, printers, duffel bags
containing materials used in counterfeiting, a stack of counterfeit
$100 bills and a lockbox. Later evidence indicated that one laptop
belonged to Persichilli and that the other belonged to an alleged
co-conspirator named Ryan Craig.
Inside the lockbox, the agents found more counterfeiting
materials; six original birth certificates in Persichilli's name
(several of which had been altered with bleach or Wite-Out®); and
an original Social Security card in the name of DaShawn Brown.
(Brown later identified the card as his and testified at trial that
he had lost this card in 2005.) On the laptop belonging to
Persichilli, agents found two images of Brown's Social Security
card with the middle two digits of his number altered, an image of

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Persichilli's driver's license with his birthday altered, and a
digital manual that contained four reports--including ones entitled
"How to Change Your Identity" and "Get Lost." Both laptops also
contained images of U.S. currency.
Persichilli was indicted in November 2008 on four
currency counterfeiting counts, 18 U.S.C. §§ 371, 471, 472, 474(a),
to which he pled guilty, and the identity theft and alteration
counts identified above. After jury trial on the latter two counts
in January 2009, Persichilli was convicted on both. Persichilli
was sentenced to concurrent terms of 60 and 87 months on the
counterfeiting counts, a concurrent term of 60 months on the
alteration count, and a consecutive term of 24 months on the
identity theft count; forfeiture and restitution payments were also
ordered.
On Persichilli's appeal, we start with challenges to his
conviction on the alteration count. The alteration provision
proscribes (1) a number of acts (2) if done with a listed purpose
or "for any other purpose." 42 U.S.C. § 408(a)(7)(C). Persichilli
was indicted for "knowingly possess[ing] a Social Security card or
counterfeit Social Security card . . . with the intent to alter it"
(a listed act with its own scienter element) with "the purpose of
obtaining something of value from a person" and "the purpose of
obtaining a new identity that would enable him to remain a fugitive
from justice." The first purpose is listed; the second, in the

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The government does not challenge this instruction as correct 1
in light of the indictment. The same provision under which
Persichilli was charged also prohibits "counterfeit[ing] a social
security card," 42 U.S.C. § 408(a)(7)(C), but the indictment
charged only alteration.
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government's view, is within the statute's catch-all purpose clause
("for any other purpose").
Intent to Alter. Persichilli first argues that the
evidence was insufficient to show that he intended to alter Brown's
card, the judge having instructed that this showing was required
under the indictment. Although Persichilli concedes that the jury 1
could have found he was planning some sort of misfeasance with
Brown's card, he asserts that no reasonable jury could have found
beyond a reasonable doubt that the wrongdoing would consist of
altering the physical card. As noted, the "intent to alter" is
only the first of two different scienter requirements required to
convict.
The district court denied a motion for acquittal, and our
review is de novo. United States v. Rodriguez-Berrios, 573 F.3d
55, 65-66 (1st Cir. 2009), cert. denied, 130 S. Ct. 1300 (2010).
For us, as for the district judge, the question is whether the
evidence viewed "in the light most favorable" to the verdict--along
with "all plausible inferences drawn therefrom"--would allow a
rational jury using a reasonable doubt standard to side with the
government. United States v. Cruz-Rodriguez, 541 F.3d 19, 26 (1st
Cir. 2008), cert. denied, 129 S. Ct. 1017 (2009).

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At trial, Elizabeth Botelho--Persichilli's wife, who was
arrested with him and was indicted as a co-conspirator--testified
that Persichilli counterfeited currency by taking an actual $1
bill, bleaching and scrubbing the ink off that bill to obtain
genuine but blank currency paper, and then printing an image of a
$100 bill from his laptop onto the blank currency paper. In
October 2006 (she said), Persichilli and Craig discussed their
plans to use someone else's Social Security card and a birth
certificate to obtain a driver's license in a new name.
A government agent testified to the unique physical
characteristics of a genuine Social Security card that made it hard
to counterfeit--the feel of the paper, special coloring embedded in
the paper, and micro-printing on the signature line. To someone
inspecting the card, the altered genuine article might more easily
pass muster than a facsimile. So it was plausible that one seeking
to assume a new identity verified by a Social Security card would–-
if he had hold of a genuine card--more likely seek to alter the
physical card than to create one from scratch.
The government also offered evidence as to Persichilli's
currency counterfeiting, the many counterfeiting implements he
possessed, the birth certificates he had already practiced
altering, and the digital images of Brown's Social Security card
with altered numbering on his laptop. The government argued to the
jury that the digital images were "mock-ups" that Persichilli made

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In addition to a driver's license, the government also 2
suggested that Persichilli wanted to use an altered Social Security
card to open a bank account, get a job, get a credit card or open
a safe deposit box; but--given Botelho's testimony about the desire
for the license--we accept that this was the main objective.
Persichilli also hints that a driver's license is not a "[]thing of
value" as required by statute, but he does not develop this
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to try to ensure that he did not make a mistake when he tried to
alter the actual Social Security card.
From all this, a jury rationally could conclude that
Persichilli wanted a forged Social Security card to get a new
driver's license in a different name and was planning to alter
Brown's actual Social Security card in much the same way as he
altered $1 bills into $100 bills or as he altered the birth
certificates. The evidence sufficiently showed means, method and
a specific motive--obtaining a driver's license in a different
name--which taken together permitted the jury to find that he
intended to alter the card.
Anything of Value. Next, Persichilli argues that he did
not have either of the two statutory purposes (listed above) that
the government says support his conviction on the alteration count.
Starting with the phrase "for the purpose of obtaining anything of
value from any person," 42 U.S.C. § 408(a)(7), Persichilli agrees
the jury could have found that he aimed to get a driver's license,
but he argues that a driver's license is issued by a government
entity and that this provision does not reach misappropriation of
something from the government.2

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argument and we do not consider it.
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Persichilli's basic claim is that the word "person" in
the statute is limited only to natural persons; if it were read to
include entities other than natural persons, he does not suggest
that it excludes agencies that issue driver's licenses. There is
some doubt whether the latter issue was properly preserved. But
to answer the first question and treat the second, closely related
one as forfeit would not be suitable. So we address both
questions, interpreting the statute de novo. United States v.
Tobin, 552 F.3d 29, 32 (1st Cir. 2009).
Urging a broad reading of "persons," the government cites
the Dictionary Act, which provides general rules of statutory
construction and says that "the words 'person' and 'whoever'
include corporations, companies, associations, firms partnerships,
societies, and joint stock companies, as well as individuals." 1
U.S.C. § 1 (2006). But the Act's definitions do not apply if "the
context indicates otherwise," id., and anyway the list's lack of a
reference to "government" could be taken in Persichilli's favor.
United States v. United Mine Workers of Am., 330 U.S. 258, 275
(1947). Based on the omission, some cases "presume" against the
word "person" extending to governments. E.g., Vt. Agency of
Natural Res. v. U.S. ex rel. Stevens, 529 U.S 765, 780 (2000).
But with or without a presumption, context still
controls. E.g., Inyo County v. Paiute-Shoshone Indians, 538 U.S.

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Compare Vt. Agency of Natural Res., 529 U.S. at 787; Will v. 3
Mich. Dept. of State Police, 491 U.S. 58, 64 (1989), with United
States v. Bly, 510 F.3d 453, 463-64 (4th Cir. 2007); United States
v. Fountain, 768 F.2d 870, 802 (7th Cir. 1985); see also United
States v. Ekanem, 383 F.3d 40, 43-44 (2d Cir. 2004) (word "victim"
in Mandatory Victims Restitution Act includes governments and is
not limited by Dictionary Act's definition of "person")
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701, 711 (2003); United States v. Cooper Corp., 312 U.S. 600, 604-
05 (1941). Not surprisingly, against background doctrines such as
sovereign immunity, courts are more likely to read "person" as
excluding government entities where the statute is one authorizing
suits against or damages from the government; conversely, when the
government is a potential victim or beneficiary--as in this case--
courts have been more likely to read "person" protectively to
include the government.3
Neither party cites case law or legislative history
directly construing "person" in this statute, although some
decisions assume that victimizing non-natural persons (but still
non-governmental entities) violates the provision before us. E.g.,
United States v. Darrell, 828 F.2d 644, 647 (10th Cir. 1987) (bank
loan). Nevertheless, both case law, e.g., United States v.
Herrera-Martinez, 525 F.3d 60, 66 (1st Cir. 2008), and the
legislative history, S. Rep. No. 94-938(I), at 391-92 (1976),
reprinted in 1976 U.S.C.C.A.N. 3439, 3820-21, support a broad
reading of § 408. And in various contexts where it makes sense,
courts have read "person" to include governments and governmental

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Precisely, this includes "the administration of any tax, 4
general public assistance, driver's license, or motor vehicle
registration law within its jurisdiction"; states also can require
that any individual affected by such laws provide their Social
Security numbers to the state or state agency. 42 U.S.C. §
405(c)(2)(C)(i); see also id. § 405(c)(2)(C)(v).
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units. E.g., Inyo County, 538 U.S. at 711 (giving examples); see
also note 3, above.
Statutes are customarily read, where language permits, to
address the mischief that is Congress' target. United States v.
New England Coal & Coke Co., 318 F.2d 138 (1st Cir. 1963). Here,
the potential use of an altered card to obtain "anything of value"
could easily harm the government; the most obvious "person" who
might be thus defrauded is the Social Security Administration, but
state and local governments are also likely targets. Indeed, the
Social Security laws specifically authorize states to make use of
Social Security numbers in administering certain laws, including
the issuance of driver's licenses.4
The bulk of the penalty provisions in § 408 are concerned
with defrauding the government of payments and benefits, and
several of the purposes proscribed by § 408(a)(7) have the same
concern. 42 U.S.C. § 408(a)(1)-(7); Herrera-Martinez, 525 F.3d at
66. The presence of these other "purpose" provisions could mean
that Congress chose other ways of coping with fraud against the
government; but the "anything of value" language appears to go
beyond the payments and benefits to which the other provisions are

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Amendments to § 408 occurred in 1939, 1950, 1954, 1958, 1960, 5
1972, 1976, 1981, 1984, 1988, 1990, 1994, 2000, and 2004. See 42
U.S.C.A. § 408, Historical and Statutory Notes (West 2010). For
examples of the substantive changes made, the 1972 amendments added
two subsections to prohibit more types of conduct; the 1976
amendments added one subsection and also added the "for any other
purpose" language; the 1981 amendments made violations of the
section a felony instead of a misdemeanor, increased the punishment
from one to five years in prison and the penalty from $1,000 to
$,5000, and added the "for the purpose of obtaining anything of
value from any person" language; the 1984 amendments increased the
penalty to $25,000 for certain repeat offenders and gave courts the
discretion to require full or partial restitution; and the 2000
amendments added two additional subsections. Id.
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largely directed. In fact, it is not clear that the other
provisions would reach defrauding a state issuing driver's
licenses.
Further, the penalties were not enacted as an ensemble.
The original 1935 Social Security Act, ch. 531, Title II, § 208, 49
Stat. 625, relevantly prohibited making false statements in
applications for payments; but thereafter, and with increasing
frequency, Congress amended the criminal provisions. So there is 5
nothing surprising about overlapping coverage. "Redundancies
across statutes are not unusual events in drafting . . . ." Conn.
Nat'l Bank v. Germain, 503 U.S. 249, 250 (1992); accord SEC v.
Nat'l Sec., Inc., 393 U.S. 453, 468 (1969) ("[S]ome overlap
[between different provisions] is neither unusual nor
unfortunate"). Significantly, Congress was almost always expanding
coverage and increasing penalties. See note 5, above.

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For example, Persichilli points to a portion of 42 U.S.C. § 6
408(a)(7) that reads "for the purpose of obtaining (for himself or
any other person) any payment or any other benefit to which he (or
such other person) is not entitled," and says that the word person
here can only mean a natural person; but non-natural persons too
can receive payments or benefits under Social Security and other
government programs. E.g., Wash. State Dep't. of Soc. & Health
Servs. v. Guardianship Estate of Keffeler, 537 U.S. 371, 376 (2003)
(Social Security benefits); Fischer v. United States, 529 U.S. 667,
679-81 (2000) (Medicare benefits).
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Persichilli says the statute uses the word "person" in
several other places where it can only apply to natural persons,
and a single consistent meaning should be assumed. E.g., Comm'r v.
Lundy, 516 U.S. 235, 250 (1996). But this is not an invincible
inference, e.g., Gen. Dynamics Land Sys., Inc. v. Cline, 540 U.S.
581, 595 (2004); nor is there any real inconsistency merely because
in some provisions the word "person" might have no applications
that pertained to non-natural persons. Finally, Persichilli's
claim notwithstanding, some other references to “person” in the
statute could apply to non-natural persons.6
Any Other Purpose. Persichilli also argues that the
alternative purpose charged in this case under § 408--"for any
other purpose"--is unconstitutionally vague and does not reach the
conduct charged here. Both he and the government assume that this
issue needs to be decided even though, as we read the statute, the
first purpose--"obtaining anything of value from any person"--was
legally sufficient. This accords with the usual rule--there are
exceptions--that a general guilty verdict should be set aside if

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there is a legal error, as opposed to mere evidentiary inadequacy,
with respect to one of multiple charged objects. Griffin v. United
States, 502 U.S. 46, 51-56 (1991).
Here, the jury verdict form did not use the phrase "for
any other purpose"; instead, it said that the jury could find guilt
if Persichilli had the purpose of obtaining anything of value from
a person and/or "the purpose of obtaining a new identity that would
enable him to remain a fugitive from justice." The latter quoted
phrase does not refer to value at all and can properly be read as
invoking the "any other purpose" prong. If that prong were
invalid, as Persichilli urges, arguably the charge in that respect
was prejudicial error.
However, there is nothing vague about the phrase "for any
other purpose": if taken at face value, it emphasizes that an
intended or accomplished alteration must be purposeful and not
inadvertent. This is expansive but not at all vague. Nor does
this negate the need to show bad intent under the prong in
question: the wrongful act involved--"knowingly possess[ing] a
Social Security card or counterfeit Social Security card . . . with
the intent to alter it," 42 U.S.C. § 408(a)(7)(C)--already contains
a scienter requirement, namely, possession with intent to alter.
Persichilli argues that to read "any purpose" literally
would render superfluous the phrase "for the purpose of obtaining
anything of value from any person," which was added to the statute

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after the "for any other purpose" clause was already in force; but
Congress may well have wanted to add specificity about known
dangers while keeping the catch-all clause in the statute to be
sure that other purposes, not readily imagined, were also
encompassed. After all, it is not easy to think of good reasons
why any private alterations should be authorized.
Persichilli suggests that the "any purpose" clause cannot
be read literally because it would criminalize an innocent
alteration, such as a woman crossing out her maiden name and
inserting her married name. But some such hypothetical case can be
imagined for many statutes (e.g., defense counsel bringing burglary
tools to court as an exhibit). Prosecutors usually use good sense
in such cases, and, when they occasionally do not, they find juries
unwilling to convict and courts ready to find implied exceptions or
other flaws.
Aggravated Identity Theft. Persichilli's last argument
challenges his conviction for aggravated identity theft on the
grounds that his conviction for intent to alter a Social Security
card cannot serve as a predicate offense under the aggravated
identity theft statute. The operative portion of the identity
theft statute reads:
Whoever, during and in relation to any felony
violation enumerated in subsection (c),
knowingly transfers, possesses, or uses,
without lawful authority, a means of
identification of another person shall, in
addition to the punishment provided for such

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felony, be sentenced to a term of imprisonment
of 2 years.
18 U.S.C. § 1028A(a)(1). This provision, adopted long after the
Social Security Act, enhances penalties for a number of different
criminal acts under different statutes.
Subsection (c), enumerating predicate felonies, includes
among eleven paragraphs cross-referencing other chapters or
sections of the U.S. Code the following paragraph (numbered 11):
section 208, 811, 1107(b), 1128B(a), or 1632
of the Social Security Act (42 U.S.C. 408,
1011, 1307(b), 1320a-7b(a), and 1383a)
(relating to false statements relating to
programs under the Act).
18 U.S.C. § 1028A(c)(11). The first of the provisions listed in
this paragraph, section 208, 42 U.S.C. § 408, includes the
alteration provision under which Persichilli was convicted.
Nevertheless, Persichilli says the alteration charge is
not a predicate crime under the identity theft statute because the
parenthetical after the several cross-references in paragraph 11
describes them as "relating to false statements" and so excludes
his crime because he was convicted of intent to alter a Social
Security card, not of making false statements. But the
parenthetical is not phrased as a limitation: it merely provides a
short-hand description of what several of the cited sections
primarily cover.
Persichilli cites to Herrera-Martinez as a case that gave
substantive effect to language in a parenthetical. But the

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parenthetical there--which reads "(or any other program financed in
whole or in part from Federal funds)"--came in the middle of a
paragraph describing an element of a crime and expanded the
statute's reach to any such other program. 525 F.3d at 65. A mere
summary description of a cross-reference, as in paragraph 11, is a
different matter and cannot alter the unambiguous language that
encompasses violations of section 208 without qualification.
Persichilli also says that Congress intended for only
acts of fraud, theft, or deception to be predicate offenses. He
points out that most predicate crimes enumerated in 18 U.S.C. §
1028A involve fraud, theft, or deception; that a regulatory
definition of the term identity theft uses the word "fraud" and
does not mention possession, 16 C.F.R. § 603.2 (2009); and that the
Sentencing Guidelines that apply to 42 U.S.C. § 408 do not have an
enhancement for mere possession, U.S.S.G. § 2B1.1(10).
Yet Congress "enumerated" section 208 without limiting
its application to only some of the offenses included within it, so
no ambiguity exists. See Atl. Fish Spotters Ass'n v. Evans, 321
F.3d 220, 223-24 (1st Cir. 2003). And Congress could quite
reasonably have thought that possessing a Social Security card with
intent to alter it is almost inevitably a precursor to the precise
types of fraud and deception that Persichilli says the aggravated
identity theft statute aims to punish more severely.

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Finally, Persichilli notes that some of the enumerating
paragraphs begin with the phrase "any provision contained in" a
specified portion of the U.S. Code; because § 1028A(c)(11) does not
include this phrase, he infers that not all of 42 U.S.C. § 408 is
encompassed. But all the sub-sections that begin with this phrase
cross-reference an entire chapter of the U.S. Code, 42 U.S.C. §
1028A(c)(4), (5), (6), (7), (10), while all the sub-sections that
reference particular sections of the Code omit this language, id.
§ 1028A(c)(1), (2), (3), (8), (9), (11).
In sum, Persichilli was properly convicted of the
alteration and subjected to the higher penalties for aggravated
identity theft. His conviction and sentence are affirmed.
It is so ordered.

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