[00:00:05] Speaker 04: Good morning, Ben Coleman for the Appellant Gaston Brown. [00:00:08] Speaker 04: I'd like to begin with the instructional error as to the intent to defraud element, and I think we can narrow the issues as to that element. [00:00:18] Speaker 04: First, the government concedes that there was both error and that the error was plain. [00:00:23] Speaker 04: So the first two prongs of the plain error test are [00:00:26] Speaker 04: are conceded. [00:00:27] Speaker 04: The government also concedes that if count four, which required the intent to defaude, has to be reversed, and also count five also has to be reversed. [00:00:37] Speaker 04: So that's conceded. [00:00:38] Speaker 04: So we're really talking about the third and fourth prongs of the plain error test. [00:00:43] Speaker 04: And I think under this court's precedent, the third and fourth prongs really go together. [00:00:48] Speaker 04: If a defendant can show prejudicial instructional error at the third prong, [00:00:52] Speaker 04: then he's going to be entitled to relief under the fourth prong as well. [00:00:56] Speaker 04: I'm not aware of a Ninth Circuit case that says a defendant in the instructional error context who can make it through the first three prongs somehow doesn't get relief under the fourth prong, and the government hasn't cited any such case either. [00:01:09] Speaker 04: So we're really focused on the third prong of the plain error test. [00:01:13] Speaker 04: And in this case, under these circumstances, even assuming that the evidence was sufficient, that there was sufficient evidence presented by the government of an intent to defraud, that does not mean that it was a foregone conclusion and that the jury would have had to require, would have had to have found or would obviously have found an intent to defraud, particularly under the circumstances of this case. [00:01:39] Speaker 04: At the trial, the government never really articulated its theory as to intent to defraud, specifically as to who the victim was. [00:01:50] Speaker 04: The indictment certainly didn't allege who the victim of the fraud was. [00:01:55] Speaker 04: Now on appeal, the government seems to be saying that American Express was the victim, but they never argued that at trial. [00:02:04] Speaker 04: The only thing they mentioned very briefly was that the people that Mr. Brown was paying, like the airlines or the rental car company, that they may have been the victims of the fraud. [00:02:16] Speaker 04: But I think the government's now taking a different theory that American Express was the victim of the fraud. [00:02:22] Speaker 02: Well, take us through your theory of who you think the victim is and why the evidence, the actual evidence in this case, isn't sufficient to show intent to deceive and cheat. [00:02:32] Speaker 02: Because there are lots and lots of fraud cases where the evidence on the two elements collapse together. [00:02:41] Speaker 02: If you meet one, the evidence also meets the other. [00:02:45] Speaker 04: And I'm going to assume for the sake of argument that the evidence was sufficient, that there was sufficient evidence to sustain the verdict. [00:02:52] Speaker 04: The question is whether a jury could have found a lack of an intent to defraud. [00:02:58] Speaker 04: And in a case like this, where there is no evidence of any losses whatsoever, the defendant is [00:03:06] Speaker 04: You know, the whole scheme requires him to continue to pay off the card so that nobody loses any money, so that he can continue to use the card. [00:03:15] Speaker 04: That in that particular scenario, given those facts, that a jury could find that he did not have an intent to afflict any type of harm or injury to property rights. [00:03:26] Speaker 01: So the government relies on this 11 circuit case. [00:03:30] Speaker 01: Clough which said as to 102982 It didn't matter whether he made payments on the card that that does not detract the from the the fact that the lender the credit issuer in that case was defrauded and I have two points as to cloth besides that it's obviously 11 circuit number one is that was a sufficiency of the evidence case and again, I'm assuming [00:03:58] Speaker 04: for the sake of argument that there was sufficient evidence here. [00:04:02] Speaker 04: We're talking about whether a jury could have found in favor of Mr. Brown on that issue. [00:04:09] Speaker 01: So we're looking at, I think we've said the standard is a reasonable probability that it affected the outcome of trial. [00:04:16] Speaker 01: Correct. [00:04:17] Speaker 01: So we're saying, did the instructional error, which is that it said, intend to deceive or cheat, [00:04:23] Speaker 01: which was wrong, and whether that error gave rise to a reasonable probability that the outcome of trial would have been different if the instruction had been correct. [00:04:36] Speaker 01: So I'm not understanding your attempt to make a distinction between sufficiency of the evidence and what the jury could have found. [00:04:44] Speaker 04: That's why I we cited heavily the Murphy case the Murphy case this court. [00:04:52] Speaker 04: Held that the evidence was sufficient as to the element as to the element that was misinstructed there was sufficient evidence to sustain the verdict. [00:05:02] Speaker 04: with respect to the instructional error, there was at least a reasonable possibility that the jury would not have found the element based on the weak evidence that the government had presented. [00:05:13] Speaker 04: The government presented sufficient evidence of the element, but they didn't present overwhelming evidence as to that particular element, and therefore there was prejudice. [00:05:21] Speaker 02: And that's what I think the difference is between a sufficiency and- Well, and that's why I wanted to hear your theory as applied to the facts of this case. [00:05:29] Speaker 02: Is it that because he continued to pay the bills and so therefore there wasn't any intent to cheat? [00:05:36] Speaker 04: Correct. [00:05:36] Speaker 04: And again, the government's, I think their position at trial, although it was never clear, was that the victims of the fraud was like the airline company and the rental car company that he used a credit card for. [00:05:50] Speaker 04: There was no evidence that he intended to cheat them, that he intended not for those bills to be paid. [00:05:59] Speaker 02: Well, the entire scheme is cheating because you're basically applying for a credit card under a false identity. [00:06:05] Speaker 02: They're issuing that credit card to you with the assumption that you are who you say you are. [00:06:10] Speaker 04: And now we're shifting to the victim being the credit card company, I guess, American Express. [00:06:14] Speaker 01: So Tehani, which is also cited by the government, which was a different, it was for a California [00:06:22] Speaker 01: not for 1029A, but that says both the credit card company and the person who takes the false credit card are defrauded. [00:06:37] Speaker 01: So why can't it be both? [00:06:39] Speaker 01: Does it matter? [00:06:41] Speaker 04: Well, I guess they could proceed under both if they wanted to. [00:06:47] Speaker 04: They could try to make that. [00:06:49] Speaker 04: I mean, in that particular case, this court was evaluating a California state statute. [00:06:53] Speaker 01: Right, but it was still looking at intent to defraud. [00:06:57] Speaker 01: So it was looking at the same, I guess, mens rea there. [00:07:03] Speaker 04: Well, that statute actually was different, because I believe the language in that statute only required an intent to deceive, not an intent to defraud. [00:07:10] Speaker 04: And that's a fundamental distinction that this court has made, is that there's a difference between the intent to deceive and an intent to defraud. [00:07:18] Speaker 04: But be that as it may, if the victim is American Express, this court in Lewis has said that the right to make an informed lending decision, that does not in and of itself [00:07:28] Speaker 04: automatically mean that a jury would have to find an intent to defraud. [00:07:34] Speaker 02: And in that case... What is your best case? [00:07:35] Speaker 02: Is it Milheiser? [00:07:37] Speaker 04: Well, I think Milheiser is very good. [00:07:39] Speaker 04: I think Lewis is very good. [00:07:40] Speaker 04: I think Yates... I mean, we've cited... I mean, in Milheiser, [00:07:48] Speaker 04: I cited the same case as a miltizer that I'm cited here and they were all generally adopted. [00:07:53] Speaker 04: It's the nine circuit cases would be Milheiser, Brockhausen, and Yates. [00:07:58] Speaker 04: And then there are cases from other circuits like Guertin, which is a DC circuit case, Tokalov is an 11th circuit case. [00:08:04] Speaker 04: And all these cases are making a distinction between an intent to deceive and an intent to defraud. [00:08:13] Speaker 04: Just because a defendant intends to deceive somebody and that person turns over money or property, that does not necessarily mean that there was an intent to defraud or that the victim has been defrauded. [00:08:26] Speaker 04: We believe that the facts of this case at least present a plausible basis that a jury could have found a lack of an intent to defraud. [00:08:35] Speaker 04: Let's even assume that the jury clearly would have found an intent to deceive. [00:08:40] Speaker 04: That doesn't mean that they necessarily would have found an intent to defraud when nobody lost any money. [00:08:45] Speaker 04: There was no evidence that anybody lost any money. [00:08:48] Speaker 04: Nobody from American Express testified that somehow Mr. Brown's credit rating was less than Michael Watley's credit rating. [00:08:57] Speaker 04: If anything, I think the evidence suggests that Mr. Brown had a lot more money and probably had a higher credit rating than Mr. Watley. [00:09:03] Speaker 04: None of that type of evidence was introduced into this record. [00:09:06] Speaker 04: Nobody from American Express testified, this is what we use as our matrix for lending out from issuing a credit card and what rates we determine. [00:09:16] Speaker 04: None of that evidence is in the record at all. [00:09:18] Speaker 04: And that's because the government proceeded under an over-broad theory, which is what happened in Milheiser. [00:09:24] Speaker 04: Their theory was simply, if the defendant intended to deceive, then there was fraud, and that's it. [00:09:30] Speaker 04: and they never presented the evidence to establish that American Express itself was defrauded or anybody else was defrauded. [00:09:39] Speaker 04: None of the victims are alleged victims and we're not clear who the government's theory was testified in this case. [00:09:45] Speaker 03: Mr. Coleman, I'm going to push back a little bit. [00:09:48] Speaker 03: You say the sufficiency of the evidence is not in doubt, yet you're kind of [00:09:51] Speaker 03: arguing the sufficiency of the evidence on this cognizable property right that would need to be lost in the cheat situation. [00:10:00] Speaker 03: I mean, looking at Yates and Milheiser, there was discussion about the ethereal right to accurate information. [00:10:05] Speaker 03: Isn't that really the [00:10:07] Speaker 03: the essence of your claim here, that this was inaccurate information at best, not a cheating, a loss, some cognizable property interest? [00:10:17] Speaker 04: That's correct. [00:10:18] Speaker 04: I mean, both those cases, Milheiser, Yates, and I think Ciminelli from the Supreme Court, they all make clear that the right to have accurate information is not a cognizable property. [00:10:31] Speaker 01: In Lewis, the jury instruction actually used that language, the right to accurate information. [00:10:40] Speaker 01: Clough just said that—you know, I'm coming back to Clough because it was the closest case to on point, even though it's out of circuit—just said, [00:10:51] Speaker 01: that it's irrelevant that the lying credit seeker subsequently made payments on the card because in each application for a credit card he intended to defraud the banks by representing to them that they were dealing with persons other than himself. [00:11:06] Speaker 01: So to agree with you, we would have to depart from Clough, is that correct? [00:11:11] Speaker 04: Well, I don't think so. [00:11:12] Speaker 04: First of all, Clough [00:11:14] Speaker 04: One of the problems in the analysis in Klopf is that it interpreted intent to defraud as the intent to deceive or cheat. [00:11:22] Speaker 04: So Klopf is using the wrong definition of intent to defraud. [00:11:26] Speaker 04: That's the first problem with Klopf. [00:11:28] Speaker 04: And, you know, cases since Klopf have made clear that it's not intent to deceive or cheat, it's an intent to deceive and cheat. [00:11:37] Speaker 04: So that's the first problem with Clough. [00:11:39] Speaker 04: I don't think that this court would be creating a circuit split with Clough though, because again, Clough is a sufficiency of the evidence case. [00:11:46] Speaker 04: So if the court were to say here, the evidence was sufficient to convict, that wouldn't create a split with Clough, but it would say, but the instruction was incorrect, and there was at least a plausible basis for a jury to not find the intent to defraud element. [00:12:01] Speaker 04: And that's it. [00:12:02] Speaker 04: I mean, I would take issue, I guess, when Clough says that it's irrelevant, [00:12:07] Speaker 04: I don't that whether, you know, anybody lost any money or whether the defendant intended to pay all the credit card. [00:12:14] Speaker 04: I don't know that that's accurate. [00:12:15] Speaker 04: I think it is relevant. [00:12:17] Speaker 04: I mean, it may not be outcome-determinative as to whether there is sufficient evidence, but I think certainly that type of evidence would be relevant in determining whether a defendant had an intent to deprive or harm somebody in their property rights. [00:12:30] Speaker 04: So I think for all those reasons, the third prong of the plain error test is satisfied, which means the fourth prong really is satisfied as well. [00:12:41] Speaker 04: I see I have about two minutes, and if the court- Wanna save that for rebuttal? [00:12:43] Speaker 04: Yes, thank you. [00:12:44] Speaker 04: Okay, of course. [00:12:46] Speaker 01: We'll hear from the government. [00:12:54] Speaker 00: May it please the court, Kevin Barber, United States. [00:12:58] Speaker 00: So I'm happy to start with the issue that the panel has been discussing so far with my friend Mr. Coleman. [00:13:04] Speaker 00: So I take him to be repeating the central point of his brief on the intent to defraud issue, which is that you cannot commit credit card fraud if you intend to pay the bills that your fraudulent credit card transactions are generating. [00:13:21] Speaker 00: I think that this court's precedents foreclose that theory. [00:13:25] Speaker 00: As a threshold matter, there's also no evidence in the record that Mr. Brown did pay his credit card bills. [00:13:31] Speaker 00: And as we point out in our brief, [00:13:33] Speaker 00: It is the appellant that pays the price for the inadequacy of the record on plain error review, which is what we're working with here. [00:13:40] Speaker 00: But even setting that aside, the court's precedents do make clear cases like the Tajani case that, intended to fraud, is not defeated just because the fraudster intends to repay the money that he has obtained by deception. [00:13:56] Speaker 00: The key is for intent to deceive and cheat was there, as the court put it in the Saney case, intent to deprive the victim of money or property by deception. [00:14:07] Speaker 00: And I think the record made plain, and it left the jury no room to disagree, that Mr. Brown did intend to obtain money or property through deception, money or property belonging both to American Express, because each time he used the counterfeit card, [00:14:24] Speaker 00: money left American Express and went to the sellers of the goods and services that he purchased. [00:14:29] Speaker 00: And then also he intended to deprive those sellers of their goods and services based on deception. [00:14:35] Speaker 00: So as the Tajani case confirms, he doubly committed fraud against both of those sets of victims. [00:14:42] Speaker 02: Can you discuss Milheiser and how that would fit into the facts of this case? [00:14:47] Speaker 00: Sure. [00:14:47] Speaker 00: I'm happy to discuss Milheiser. [00:14:49] Speaker 02: As counsel points out, there's potentially multiple victims here. [00:14:52] Speaker 02: You didn't have the benefit of the correct instruction to sort of focus the jury on which victim the government's talking about and how the evidence fits as the each victim. [00:15:02] Speaker 00: Yes. [00:15:02] Speaker 00: So I think Milheiser is readily distinguishable from this case. [00:15:06] Speaker 00: because in that case you had essentially an arm's length transaction for goods. [00:15:12] Speaker 00: There it was deception to induce purchases of printer ink, but the court said that there was no fraud there because the alleged victims, the buyers of the ink, got exactly what they wanted. [00:15:26] Speaker 00: They got the full benefit of their bargain. [00:15:28] Speaker 00: The government obviously disagrees with the court's analysis in Milheiser, but I think it's readily distinguishable from credit card fraud and related forms of fraud because in the credit card fraud context, the identity of the card holder is much more fundamental and inherently critical to the nature of the bargain with the credit card issuer. [00:15:48] Speaker 00: And if you look at Milheiser itself, I think it's at page 944 of the court's opinion there, it distinguishes a case involving, I think it's called Tarayo or Tarallo, case involving the investment context, where again, the identity of the person who was soliciting investments was considered much more important to the nature of the bargain than when you're just purchasing a commodity and you get exactly what you [00:16:13] Speaker 00: what you bargained for. [00:16:14] Speaker 00: So I think that Milheiser is not relevant here. [00:16:18] Speaker 00: Milheiser also is not a plain error case, which we have. [00:16:21] Speaker 02: I'm not sure if I understand like how much distance is enough to go one way versus the other. [00:16:27] Speaker 02: I mean, when you're calling somebody up and misrepresenting who you are, that seems pretty germane. [00:16:32] Speaker 00: Yes, I mean, I certainly agree, and I have grave concerns about the correctness of Milheiser's analysis. [00:16:39] Speaker 00: I was particularly concerned with how it treated the Bruckhausen case, which is another case that my friend Mr. Coleman has cited. [00:16:45] Speaker 00: Bruckhausen stands for the proposition that the right to control the destination of your products after selling them is not a cognizable property interest under the fraud statutes. [00:16:57] Speaker 00: But if you look at the critical two-judge concurrence that was filed by Judge Fernandez there and joined by Judge Kosinski, [00:17:04] Speaker 00: they confirm that setting aside that theory that the government pressed about the right to control the destination of the products, if you use deception to induce a seller to make a sale that they may not otherwise have made, that is still fraud. [00:17:18] Speaker 00: And the Milheiser court didn't pick up on that aspect of Bruckhausen. [00:17:22] Speaker 00: So I wouldn't want the court to expand on Milheiser. [00:17:25] Speaker 02: Yeah, but agree or not, you have to follow and distinguish it. [00:17:29] Speaker 00: Absolutely, but I would distinguish it on the grounds that I did before, which is that in this particular context, when we're talking about this kind of transaction and this sort of bargain, it's kind of awkward to even call it a bargain here when you're talking about a credit relationship with an entity like American Express. [00:17:44] Speaker 00: But in that context, the identity of the cardholder is fundamental. [00:17:49] Speaker 00: Credit card issuers always need to know who they're dealing with. [00:17:52] Speaker 00: Whereas, you know, if you're just selling a particular commodity out of a storefront or something, it's considerably less important who you're actually dealing with if everybody's getting what they're bargaining for. [00:18:02] Speaker 01: And Noheiser sort of concedes that in its distinction of Turala, which I think that the lie in that case was the person seeking investment said, I'm in my office in D.C., and we held that that was sufficient to [00:18:19] Speaker 01: to be fraud, to be intended to fraud, because when you're making an investment, you want to know the size of the entity you're investing in. [00:18:28] Speaker 01: And so it was essential to the transaction. [00:18:34] Speaker 01: So I didn't see Milheiser as overruling that line of reasoning. [00:18:41] Speaker 00: I think that's exactly right. [00:18:42] Speaker 00: I think that this case is distinguishable from Milheiser on much the same basis that Milheiser itself distinguished that line of case law, because I think in this context, the identity of the parties to the transaction is so fundamental. [00:18:56] Speaker 00: And that also goes not just for American Express as the victim, it also goes for some of the other victims here. [00:19:01] Speaker 00: So Mr. Brown was using this counterfeit card to book flights and book rental cars. [00:19:06] Speaker 00: And, you know, those entities, as opposed to like the printering type example, [00:19:10] Speaker 00: those kinds of sellers, they also really need to know who they're dealing with because they're entrusting a car to the person or they're entrusting a seat on an airplane, which is a highly controlled, secure environment. [00:19:21] Speaker 00: So I think that this case is distinguishable on those grounds as well. [00:19:25] Speaker 00: It may also be helpful just to discuss another couple of the cases that have been under discussion today. [00:19:30] Speaker 00: There was the Klopf case, and I think Judge Akuta mentioned that. [00:19:35] Speaker 00: I think that is a very helpful case here. [00:19:36] Speaker 00: It's very closely on point. [00:19:38] Speaker 00: Even though it's out of circuit, I think it was favorably cited by this court in the Saney case, which is the case that established the front-line error here in the first place. [00:19:47] Speaker 00: And my friend, Mr. Coleman, highlighted the fact that it's a sufficiency case, but it was talking about the legal principle that intent to repay in the credit card fraud context does not defeat credit card fraud. [00:19:59] Speaker 00: And if you followed that principle to its limit, it would really blow a giant hole in Section 1029. [00:20:05] Speaker 00: That would mean that any of our personal information could be used by anyone to obtain a counterfeit credit card. [00:20:12] Speaker 00: They could run up all kinds of bills in our name. [00:20:14] Speaker 00: and then as long as they paid the bill, or even just intended to pay the bill, you wouldn't have credit card fraud. [00:20:20] Speaker 00: I think that's a completely untenable reading of section 1029. [00:20:24] Speaker 00: And then the Tajani case, I also wanted to highlight, I think Mr. Coleman suggested that the statute there was limited just to intent to cheat, and so it doesn't tell us anything here. [00:20:36] Speaker 00: But if you look at the court's opinion there, the question was whether the state law [00:20:40] Speaker 00: was a crime of moral turpitude and the question as distilled by the court there was did the state statute necessarily entail intent to defraud as defined at the common law and the court correctly defined intent to defraud as requiring intent not just to deceive [00:20:58] Speaker 00: but also to obtain money or property through that deception. [00:21:01] Speaker 00: So you have to read that opinion closely, but the court did correctly define it, and then it explained very helpfully as to this case why credit card fraud of the kind that we're dealing with necessarily entails intent to defraud, and therefore in that case constituted a crime involving moral turpitude. [00:21:21] Speaker 00: And then I also just wanted to highlight the fact that I think maybe Judge Battaglia might have picked up on this, but my friend seems to concede that there was sufficient evidence to support the intent to defraud here. [00:21:31] Speaker 00: I don't know how, if the fundamental legal theory that the government was proceeding on was incorrect, as Mr. Coleman has argued, I don't see how the evidence could be sufficient and yet then enable him to prevail under plain error review. [00:21:45] Speaker 01: at prong three so i don't think that's correct either um i think that's all the the matters that i i had to discuss from my friend's argument but i'm also happy to take any further questions that the court has um assuming that we um go on to consider count five um can you address um uh the effect of dubin on um our analysis [00:22:13] Speaker 00: Sure. [00:22:14] Speaker 00: So Mr. Brown has raised a couple of different Dubin points. [00:22:18] Speaker 00: The first is the idea that the instructions given here were incorrect because they did not require the jury to find that the identification was stolen. [00:22:29] Speaker 00: The Dubin decision does not disturb this court's precedence that already established that the identification need not be stolen. [00:22:37] Speaker 01: There's a lot of language in Dubin saying and trying to interpret what use means in connection with possess and transfer and in connection with trying to define use. [00:22:49] Speaker 01: the opinion talks about is usually associated with theft and identity theft. [00:22:56] Speaker 01: I don't know what comes out and says that it has to be a stolen item, but it does have some language, so can you help us understand how that works? [00:23:06] Speaker 00: Sure, yes. [00:23:06] Speaker 00: So first of all, this is a threshold matter. [00:23:08] Speaker 00: I think it's important that the standard for finding that Supreme Court precedent has abrogated this court's precedent is pretty high. [00:23:15] Speaker 00: So we're going to need some sort of clear language in Dubin to do that. [00:23:19] Speaker 00: And I don't think that the language that is in Dubin [00:23:21] Speaker 00: gets you there. [00:23:22] Speaker 00: Saying that the text of the statute connotes theft, or that theft is at the core of the statute, doesn't mean that that exhausts all the statute's applications. [00:23:33] Speaker 00: And, you know, in a future case, maybe the court will go there, but the circuits are in broad agreement that actual theft is not required. [00:23:40] Speaker 00: identity theft is getting at, that phrase is getting at a species of conduct that does not always include actual theft. [00:23:48] Speaker 00: The text of the statute refers to without lawful authority and lawful would be surplussed if it required theft in every case. [00:23:55] Speaker 00: And of course the statute is directed not just at situations where identifications are stolen but also where identifications are used perhaps with permission but unlawful permission [00:24:07] Speaker 00: which makes it harder to detect and prevent crime when people are using other people's identifications. [00:24:12] Speaker 00: So I don't think anything in Dubin necessarily resolves that. [00:24:16] Speaker 00: So I think this court's precedents are intact on that front and the instructions were not erroneous on that ground. [00:24:23] Speaker 00: Obviously there wouldn't be any prejudice here either because it was clear that the ID was stolen. [00:24:27] Speaker 00: Mr. Watley clearly testified that he never gave permission for the ID to be used. [00:24:32] Speaker 00: And then the other matter is the crux matter. [00:24:36] Speaker 00: I don't think that Dubin clearly establishes that you would need a crux instruction in a case arising under the possessor's prong. [00:24:43] Speaker 00: In any event here, there would be no prejudice again because the use of Mr. Watley's identification was clearly at the crux. [00:24:50] Speaker 00: of his underlying predicate offense, which was the credit card fraud. [00:24:55] Speaker 00: It was absolutely central to that. [00:24:56] Speaker 00: It was not an ancillary feature thereof, like the use of the identification in the Dubin case. [00:25:03] Speaker 00: So we don't think that Dubin provides any basis for [00:25:06] Speaker 00: for reversing the count five conviction. [00:25:10] Speaker 00: I also wanted to mention there was some confusion in the briefing about the standard of review for the Dubin claims because they're based on a change in the law. [00:25:20] Speaker 00: Our brief explains why any purported exception to plain error for changes in the law is invalid. [00:25:27] Speaker 00: and i also wanted to point the court today to a couple cases in which this court has actually already said that uh... there's the christianson case that's eight twenty eight after seven sixty three inside seven seventy nine which says quote planar review [00:25:43] Speaker 00: applies on direct appeal, even where an intervening change in the law is the source of the error. [00:25:49] Speaker 00: And then that's citing a case called Policemen 641 F3rd at 404. [00:25:56] Speaker 00: So that purported exception to plain error review does not apply. [00:25:59] Speaker 00: We are on plain error, but for the prejudice reasons I've also discussed, even if de novo review were applying, Mr. Brown would still not get relief on that count. [00:26:12] Speaker 00: There are no further questions. [00:26:14] Speaker 00: Thank you. [00:26:15] Speaker 00: Thank you. [00:26:17] Speaker 01: You have a few minutes left for rebuttal. [00:26:22] Speaker 04: Thank you. [00:26:22] Speaker 04: I'd like to address the Dubin issue since I didn't get to talk about that initially. [00:26:27] Speaker 04: With respect to whether the identity has to be stolen, putting aside the actual language in Dubin that very strongly suggests that the entire or one of the main basis for the reasoning in Dubin was the title of the statute. [00:26:44] Speaker 04: The title of the statute is aggravated identity theft. [00:26:47] Speaker 04: And so the Supreme Court said you have to interpret the statute in accordance with its title. [00:26:52] Speaker 04: And the theft portion of that title clearly reveals that the identity has to be stolen. [00:26:58] Speaker 01: So can you help me with footnote 8 of Dubin? [00:27:01] Speaker 01: Because footnote 8 of Dubin clearly holds open the without lawful authority language and says, we're not going to address it. [00:27:10] Speaker 01: It says what the parties argued. [00:27:12] Speaker 01: And of course, our opinion, which says that you don't have to have theft, I think as soon as possible, is relying on the without lawful authority language. [00:27:22] Speaker 01: So what do we do about footnote eight? [00:27:24] Speaker 01: in your theory. [00:27:26] Speaker 04: Well, I think also in footnote eight, the Supreme Court basically said that the government at times conceded that the identity had to be stolen and they pointed to parts of the Solicitor General's brief that appeared to concede that. [00:27:38] Speaker 04: So footnote eight itself is a little bit unclear on this. [00:27:42] Speaker 04: The government's position has certainly been unclear because sometimes they've virtually conceded that the identity has to be stolen. [00:27:48] Speaker 04: But I think putting aside the without lawful authority language, the court doesn't even have to rely on that. [00:27:54] Speaker 04: You can just look at the title of the statute, which is aggravated identity theft, which is that's what the Supreme Court did in Dubin. [00:28:00] Speaker 04: And they said the title of the statute is pretty clear. [00:28:03] Speaker 04: This has to be stolen identity. [00:28:05] Speaker 01: Does that make without lawful authority surplusage? [00:28:09] Speaker 04: Well, I don't think it's surplusage. [00:28:11] Speaker 04: I think it just further confirms that it has to be that the identity has to be stolen or used beyond or you have to exceed the authority that's been given to you to use the identity. [00:28:25] Speaker 04: And that may be where the without lawful authority comes in that if you've been if you're exceeding the authority that's been given to you, that is a form of stealing the the [00:28:34] Speaker 04: identity. [00:28:36] Speaker 04: So I think it's all mutually reinforcing. [00:28:38] Speaker 04: I don't know that one is surplusage versus the other. [00:28:41] Speaker 04: It's all reinforcing that the identity has to be stolen. [00:28:45] Speaker 04: The government had indicated that all the circuits agree that the identity doesn't have to be stolen, but [00:28:51] Speaker 04: there's no case after Dubin that holds that, and that's the big question. [00:28:56] Speaker 04: What did Dubin mean? [00:28:57] Speaker 04: And I think Dubin, both its reasoning and its actual language, is very clear that this court's precedent is no longer valid. [00:29:06] Speaker 04: I do think there was also prejudice, because the defense had a theory that the victim allowed people to use his identity if they would buy him beer. [00:29:15] Speaker 04: They wanted to try to get into that evidence, but they were basically shut down. [00:29:19] Speaker 04: So I do think that if [00:29:21] Speaker 04: If this theory can be, if that is a viable defense, that there is prejudice even assuming plain error review applies. [00:29:29] Speaker 04: Thank you. [00:29:30] Speaker 01: We thank both sides for their argument. [00:29:33] Speaker 01: The case of United States versus Gaston Brown is submitted.