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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.




       A check with the registry of motor vehicles revealed that
       1

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 then-

Governor 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



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

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.

       As discussed supra, the defendant was charged with
       8

violating this statute; the charge was later dismissed as part
of a plea deal.

       The statute provides in pertinent part: "Whoever
       9

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.
