[00:00:00] Speaker 04:
And we'll hear first from Ms.

[00:00:03] Speaker 04:
Buchor.

[00:00:03] Speaker 04:
Did I pronounce that correctly?

[00:00:05] Speaker 01:
Yes, Your Honor.

[00:00:06] Speaker 01:
Yes, Your Honor.

[00:00:07] Speaker 04:
All right.

[00:00:07] Speaker 04:
You may proceed.

[00:00:08] Speaker 01:
Thank you.

[00:00:09] Speaker 01:
Good morning, Your Honors.

[00:00:10] Speaker 01:
My name is Karen Buchor, and I represent the appellant, Masa Parviz.

[00:00:15] Speaker 01:
And with the court's permission, I'd like to reserve five minutes for rebuttal.

[00:00:19] Speaker 01:
This case is about the recent Supreme Court case in Dubin.

[00:00:24] Speaker 01:
Ms.

[00:00:25] Speaker 01:
Parvy's conviction account two for aggravated identity theft should be reversed due to the Supreme Court's recent decision in Dubin, which clarified that Ms.

[00:00:36] Speaker 01:
Parvy's conduct charged account two does not violate the aggravated identity theft statute.

[00:00:44] Speaker 01:
The court narrowed the interpretation of the word use.

[00:00:49] Speaker 01:
Count, too, alleged that Ms.

[00:00:51] Speaker 01:
Parviz used the name of a gentleman named Mr. Barker during and in relation to the defense of false statement in a passport application.

[00:01:03] Speaker 01:
And Ms.

[00:01:03] Speaker 01:
Parviz argues that she did not use Mr. Barker's identity in violation of the aggravated identity theft statute because his identity was not at the crux of the criminality.

[00:01:18] Speaker 01:
The Dubin Court found that a defendant uses another person's means of identification in relation to a predicate offense when this use is at the crux of what makes the conduct criminal.

[00:01:32] Speaker 01:
So in this case, the crux of the fraud was the statements in the letter, the statement that the child

[00:01:38] Speaker 01:
could not appear because she was sick, because she needed to go to the UK for surgery.

[00:01:45] Speaker 01:
The name of the doctor was Anne Slurry.

[00:01:48] Speaker 01:
It could have been the name of any doctor.

[00:01:50] Speaker 01:
The reason why the clerk at the passport office granted the request for expedited transcript without the presence of the child were those statements.

[00:02:02] Speaker 04:
but the statements have no value unless they come from a doctor and that it was essential to have

[00:02:12] Speaker 04:
a doctor-supported rationale for why she wasn't going to show up in person in order to get the passport.

[00:02:18] Speaker 04:
Why doesn't that put it right at the crux?

[00:02:20] Speaker 01:
Because it could have been any doctor.

[00:02:23] Speaker 01:
And it didn't matter which doctor it was.

[00:02:26] Speaker 04:
But she wasn't a doctor.

[00:02:28] Speaker 04:
So she needed to take on the identity of some doctor for the purpose of putting this letter in in order to hoodwink

[00:02:40] Speaker 01:
uh... the agency into issuing the passport without seeing the child the rule in it is the identity had to have mattered it had been the key mover and if you listen to that matters whether it's

[00:02:58] Speaker 04:
Dr. Jones versus Dr. Smith as opposed to the fact that she's not either Dr. Jones or Dr. Smith.

[00:03:05] Speaker 04:
She wasn't claiming she was the doctor.

[00:03:07] Speaker 04:
No, I understand that, but she claims to have a letter from someone who is a doctor when in fact there's no one behind this letter.

[00:03:17] Speaker 04:
So she's taken over the real identity of an actual person who she says is saying these things.

[00:03:23] Speaker 01:
But see, that was not important to the case.

[00:03:26] Speaker 01:
Mr. Roach, the passport examiner, he testified, and he said he received a letter, and he read it, and the child wasn't present.

[00:03:35] Speaker 01:
The child wasn't present because the doctor said she was sick, she couldn't appear, and she had to go to the United Kingdom for surgery.

[00:03:43] Speaker 01:
So he checked the Foreign Affairs Manual and learned there's an exception to a child not being present if there's

[00:03:49] Speaker 01:
health reasons.

[00:03:51] Speaker 01:
So the reason why he expedited the passport was because of her health.

[00:03:58] Speaker 01:
And when he testified, that's what he said.

[00:04:01] Speaker 00:
But her health could only be proved by having, I mean, it was proved by having this letter from

[00:04:06] Speaker 00:
A doctor.

[00:04:07] Speaker 00:
Right.

[00:04:08] Speaker 01:
So the doctor said, I mean the passport examiner said, I checked out the hospital.

[00:04:14] Speaker 01:
It was indeed a hospital.

[00:04:16] Speaker 01:
And then he said, and then, you know, I checked out the doctor's name.

[00:04:20] Speaker 01:
I believe he worked at the hospital.

[00:04:22] Speaker 01:
The doctor's name was not important.

[00:04:25] Speaker 01:
It was just that he was a doctor.

[00:04:29] Speaker 00:
Under that reasoning, if it had been the name and the letter of somebody who hadn't worked at the hospital, wouldn't that have been relevant to the examiner?

[00:04:39] Speaker 00:
If it had been Joe Smith, and the examiner looks up the name, and that's not the name of anybody who's ever worked in a hospital, would that not have been relevant?

[00:04:48] Speaker 01:
That's, those are different facts, because that's not what happened in this case.

[00:04:52] Speaker 01:
He believed that this doctor worked at the, at that hospital.

[00:04:57] Speaker 01:
And there's a statement.

[00:04:58] Speaker 04:
But you, as you just described it, he said that he tried to verify that someone with that name worked at the hospital, correct?

[00:05:08] Speaker 04:
Is that what you just said?

[00:05:09] Speaker 01:
Yes, as a doctor, but it could have been, my point is, it could have been any doctor.

[00:05:14] Speaker 01:
It didn't matter.

[00:05:17] Speaker 03:
I guess in looking at the text of the statute here, we're talking about a means of identification of another person.

[00:05:24] Speaker 03:
Is misrepresentation as to another person's profession a means of identification under the statute?

[00:05:33] Speaker 03:
Or does it have to be a use of the person's actual name and identity?

[00:05:39] Speaker 03:
I think that's what we're getting at here is, well, if she's misusing his identity as not a doctor that might point in one direction.

[00:05:50] Speaker 03:
But if the statute's about the misuse of his name and identity, regardless of whether with his consent or not, he was actually a doctor, that would be outside of the statute.

[00:06:01] Speaker 03:
So how do you read the means of identification of another person?

[00:06:04] Speaker 03:
Does it involve false pretenses about one's profession as opposed to one's identity?

[00:06:13] Speaker 01:
Well, the Supreme Court said something.

[00:06:17] Speaker 01:
It says to be clear, being at the crux of the criminality requires more than a causal relationship, such as facilitation of the offense.

[00:06:27] Speaker 01:
So his name, as being a doctor, facilitated defense.

[00:06:31] Speaker 01:
But my point is, it could have been the name of any doctor.

[00:06:37] Speaker 03:
Does it matter whether Mr. Barker consented to the use of his name on the letter?

[00:06:42] Speaker 03:
That's not well developed in the trial testimony.

[00:06:45] Speaker 03:
Maybe the standard review governs that.

[00:06:47] Speaker 03:
But should that matter whether he consented or not?

[00:06:51] Speaker 01:
I read through his trial testimony last night.

[00:06:53] Speaker 01:
It was very vague and unclear.

[00:06:55] Speaker 01:
He said he was drinking a lot at the time.

[00:06:57] Speaker 01:
But there was a point in the transcript where he said he didn't write the letter.

[00:07:02] Speaker 01:
So I don't think that's an issue in this case.

[00:07:04] Speaker 03:
Could he consent to the use of his signature?

[00:07:07] Speaker 01:
He could, but if it's for an unlawful purpose, I don't think that saves a day.

[00:07:13] Speaker 03:
Well, what do we do with that then?

[00:07:15] Speaker 03:
Because we have cases, Dubin saves, I believe, our prior reading of without lawful authority.

[00:07:22] Speaker 03:
And I think the Osuna case and others somewhat broadly say that the without lawful authority has met Osuna itself involved consent.

[00:07:33] Speaker 03:
is met by doing anything illegal in the use of the person's identity.

[00:07:40] Speaker 03:
So how do you get around that given that Dubin doesn't touch the without lawful authority line of cases?

[00:07:50] Speaker 01:
It was passport fraud.

[00:07:52] Speaker 01:
And what made the fraud was the statements that the child couldn't be in there.

[00:08:00] Speaker 01:
That's why the clerk said, I'm going to expedite it.

[00:08:03] Speaker 01:
He did not rely on the name of the doctor.

[00:08:08] Speaker 01:
And there's a case cited by the government in the 28-J letter that I think kind of helps and illustrates this.

[00:08:17] Speaker 01:
It's the Croft case from the Fifth Circuit.

[00:08:20] Speaker 01:
In that case, the defendant owned a dog training company.

[00:08:24] Speaker 01:
And in order to offer training to veterans and to receive funds from the government, the instructors had to meet certain qualifications.

[00:08:33] Speaker 01:
And the defendant in that case misrepresented the qualifications of the instructors.

[00:08:38] Speaker 01:
And here there was aggravated identity theft because the defendant's misrepresentations was about who was teaching the course.

[00:08:48] Speaker 01:
That was important.

[00:08:49] Speaker 01:
That's how they got the funding.

[00:08:52] Speaker 01:
And that's why the identity of the particular people were important in that case.

[00:09:00] Speaker 04:
Suppose someone shows up at the door of the

[00:09:05] Speaker 04:
House chamber of the Congress and they have a letter from a member of Congress that's totally phony and it's got a phony signature and a phony seal you know on the looks like official stationery and they say this is my letter from the congressman authorizing me to come onto the floor.

[00:09:24] Speaker 04:
Is it your view that that wouldn't be covered by the statute because there's 435 members and it just doesn't matter so

[00:09:32] Speaker 04:
I mean, that's what I don't understand.

[00:09:34] Speaker 04:
You're actually taking the identity of a real person and putting it onto a document that is central to the accomplishment of the offense, and yet you're saying that's not the crux.

[00:09:49] Speaker 04:
So that's what I'm having trouble with.

[00:09:53] Speaker 01:
In this particular case, because it was false statements and a passport, it was having to do with the reason why the child wasn't there.

[00:10:02] Speaker 01:
And it didn't seem to matter to the clerk at the passport office who the doctor was.

[00:10:09] Speaker 04:
The fact that there were other potential candidates for whose identity could have been stolen doesn't mean you didn't steal an identity in order to accomplish the offense.

[00:10:19] Speaker 04:
That's what I'm having trouble with.

[00:10:22] Speaker 04:
Sure, you could have stolen somebody else's identity just as well.

[00:10:25] Speaker 04:
So what?

[00:10:26] Speaker 04:
It's still at the crux.

[00:10:27] Speaker 04:
I don't get it.

[00:10:31] Speaker 01:
I think it depended on what affected the Passport Clerk.

[00:10:35] Speaker 03:
Does the record trial establish that she stole Mr. Barker's identity?

[00:10:41] Speaker 03:
I think we talked about that it's not clear whether or not he might have consented and that he did provide other forms of assistance with this scheme.

[00:10:51] Speaker 03:
Do we know whether her use of his signature was unauthorized, at least beyond a reasonable doubt?

[00:10:59] Speaker 01:
I read that part of the transcript last night, Your Honor, and he was very vague.

[00:11:05] Speaker 01:
He was very slow coming forth.

[00:11:08] Speaker 01:
He said he was, you know, drinking a lot.

[00:11:10] Speaker 01:
He couldn't remember, but there's a point in the transcript where he states, I did not write that letter.

[00:11:18] Speaker 03:
Isn't that then dispositive of your case?

[00:11:21] Speaker 01:
The what?

[00:11:22] Speaker 03:
Dispositive of your case.

[00:11:23] Speaker 03:
If he says he didn't write the letter and were to take that as saying that he did not authorize or consent to the use of his signature.

[00:11:33] Speaker 03:
Are those the same thing, I guess, first of all?

[00:11:35] Speaker 03:
Yeah, I think we all know that there's good evidence that he didn't write the letter.

[00:11:40] Speaker 03:
But do we know whether he consented to the use of his signature on the letter?

[00:11:45] Speaker 01:
I don't think that came out in the record.

[00:11:47] Speaker 01:
I did actually look for that.

[00:11:53] Speaker 01:
And there's another case cited by the government, US versus GLAD, and I think helps my point.

[00:12:02] Speaker 01:
This was a scheme to defraud insurance company by billing for unnecessary prescriptions.

[00:12:08] Speaker 01:
And that case is interesting because there was two defendants.

[00:12:11] Speaker 01:
One defendant was convicted of aggravated identity theft, and the other one wasn't.

[00:12:16] Speaker 01:
And the one who was convicted forged the name of the doctors and patients

[00:12:23] Speaker 01:
And that went to the heart of the fraud to continue refilling the prescriptions.

[00:12:28] Speaker 01:
They needed those names in order to refill the prescription.

[00:12:33] Speaker 01:
The co-defendant who was found out guilty of aggravated identity theft, he misrepresented to the insurance companies that the prescriptions were medically necessary.

[00:12:45] Speaker 01:
That was illegal, but it was an identity theft.

[00:12:48] Speaker 01:
So in our case,

[00:12:50] Speaker 01:
Her state, the statements that were written in the letter, they were illegal, but it was not identity theft.

[00:12:57] Speaker 01:
And that's the basis of my argument, looking at all these cases.

[00:13:03] Speaker 01:
And I believe the role from Dubin is, does the identity matter?

[00:13:09] Speaker 01:
Was it the key mover?

[00:13:11] Speaker 01:
And in this case, I don't believe the identity, the name of the doctor was the key mover.

[00:13:17] Speaker 01:
The key mover was the statements.

[00:13:20] Speaker 01:
that describe the reasons why the child could not be present in the office, in the passport office.

[00:13:28] Speaker 01:
And I see my time is almost expired, Your Honor.

[00:13:31] Speaker 04:
Okay.

[00:13:31] Speaker 04:
All right.

[00:13:32] Speaker 04:
Thank you.

[00:13:33] Speaker 04:
You served the remainder of your time for rebuttal.

[00:13:36] Speaker 04:
And we'll hear now from Ms.

[00:13:39] Speaker 04:
Sidon.

[00:13:40] Speaker 04:
Did I get that correct?

[00:13:41] Speaker 02:
That's right, Your Honor.

[00:13:41] Speaker 02:
Thank you.

[00:13:42] Speaker 02:
Good morning, Your Honors.

[00:13:43] Speaker 02:
May it please the Court, Catherine Sidon, on behalf of the United States.

[00:13:47] Speaker 02:
The defendant here used Brett Barker's identity in a wholly fraudulent submission to obtain an expedited passport for a child to whom she had no remaining legal rights.

[00:13:57] Speaker 02:
As defense counsel recognized in his closing argument at trial, the quote Brett Barker letter was at the center of this case.

[00:14:05] Speaker 02:
That's at ER 363.

[00:14:07] Speaker 02:
The letter lied not only about the fact that the child was immunocompromised and in need of emergency medical care overseas, but also about who authored the letter and who is providing that care to the child.

[00:14:19] Speaker 02:
Because in reality, the person who purportedly authored that letter

[00:14:23] Speaker 02:
and purportedly provided that care to the child had never even met this child.

[00:14:27] Speaker 02:
He had no relationship with her whatsoever.

[00:14:30] Speaker 02:
And because the lie was about who was involved and not just what services were needed or what services were involved, the defendant used Brett Barker's identity within the way that the Supreme Court and this court have interpreted that term.

[00:14:44] Speaker 02:
So I want to clarify that the Dubin opinion did not disturb this court's

[00:14:48] Speaker 02:
prior opinions interpreting the statute.

[00:14:51] Speaker 02:
On page 116 of the Dubin opinion, the Supreme Court specifically said that it was resolving a circuit split between circuits that had taken a more permissive, expansive reading of the statute, like the Fifth Circuit, and circuits like the Ninth, which had not, which had taken a more tailored reading.

[00:15:08] Speaker 02:
And it resolved that circuit split in favor of this court's prior opinions.

[00:15:12] Speaker 02:
Dubin also echoes the test that this court previously articulated in United States versus Harris.

[00:15:17] Speaker 02:
In that case, this court looked at whether the use of the identity was central to the fraud, and that language is echoed in the Dubin opinion.

[00:15:25] Speaker 02:
Ultimately, the test that came out of the Dubin opinion was whether the identity was at the crux of the fraud, but the language in the opinion mirrors this court's prior opinion in Harris.

[00:15:35] Speaker 04:
The government show here at trial that he did not consent to this letter being submitted on his behalf.

[00:15:47] Speaker 02:
There was evidence suggesting that your honor, the testimony from Brett Barker was somewhat ambiguous and suggested that he most likely knew something about this scheme, not necessarily about the letter itself.

[00:15:59] Speaker 02:
So the testimony was ambiguous there.

[00:16:01] Speaker 02:
However, as Your Honor observed, the Supreme Court's decision in Dubin did not disturb this Court's prior opinion in Osuna Alvarez, where this Court very unequivocally stated that the consent of the victim, it feels strange to use the word victim when it is someone who's consenting, but the consent does not matter.

[00:16:20] Speaker 02:
It is the deceptive

[00:16:22] Speaker 02:
use itself that matters.

[00:16:25] Speaker 03:
I think there's a reading of Osuna that is consistent with that, but Osuna was really about the without lawful authority and consent.

[00:16:35] Speaker 03:
What are we to do with the possibility that

[00:16:39] Speaker 03:
Mr. Barker might have consented to the use of his signature on the use side of Dubin.

[00:16:46] Speaker 03:
It seems to me that if we say that our prior discussion of without lawful authority means that any illegal use connected with the fraud satisfies it, then we're not attending to what Dubin says use actually means, and Dubin did limit use.

[00:17:04] Speaker 02:
Dubin did limit use, Your Honor, but I think we need to read those two opinions

[00:17:08] Speaker 02:
together and consistent with one another.

[00:17:18] Speaker 02:
in Osuna Alvarez because they target two different pieces of the statute.

[00:17:22] Speaker 03:
Well, right, if Osuna is not dealing with use, but if Osuna is not dealing with use, and Dubin limited use to instances where the use was, the identity theft was central to the fraud, why isn't this case about use rather than without lawful authority?

[00:17:39] Speaker 02:
This case is about use, Your Honor.

[00:17:41] Speaker 02:
I would say it is about use, but in the Dubin opinion, the Supreme Court specifically said

[00:17:46] Speaker 02:
there are three different verbs in the statute.

[00:17:48] Speaker 02:
There is possess, transfer, and use and that those three verbs are doing different work and it specifically said that you don't need to demonstrate that the identification was stolen because the possession and the transfer are targeting the misappropriation component of the aggravated identity theft statute and the use is targeting deceptive use and so we need both.

[00:18:09] Speaker 02:
We need deceptive

[00:18:11] Speaker 02:
excuse me, we could have either.

[00:18:12] Speaker 02:
We could have either the deceptive use or a stolen identity, but you don't need both.

[00:18:17] Speaker 03:
Well, the jury here was instructed that consent didn't matter with respect to either without lawful authority, which seems to be what Asuna says, and that would also cover

[00:18:29] Speaker 03:
use What if mr. Barker consented and you've said that the evidence is ambiguous I want to ask you about the standard review But if mr. Barker consented to a signature on it, is it still a use under Dubin just because he wasn't a doctor?

[00:18:44] Speaker 02:
Yes, your honor.

[00:18:45] Speaker 03:
If he why is that his identity?

[00:18:47] Speaker 02:
Because it was his both his name and his national provider index number and his nurse nurse practitioner number.

[00:18:55] Speaker 02:
Those are all independent

[00:18:56] Speaker 02:
means of identification and that's what the statute asks is is his means of identification being used deceptively and the answer here is that it was being used deceptively.

[00:19:07] Speaker 02:
I'd like to point the court to page 123 of the Dubin opinion where the court said that identity theft is committed when the defendant uses the means of identification itself to defraud or deceive.

[00:19:19] Speaker 02:
meaning that the deception goes to who is involved rather than just how or when the services were provided.

[00:19:26] Speaker 03:
But those were Mr. Barker's identification numbers, and that was his name.

[00:19:30] Speaker 02:
That's correct, Your Honor.

[00:19:31] Speaker 03:
And so if he consented to the use of all of those by Ms.

[00:19:35] Speaker 03:
Parvez, how does that come under the use?

[00:19:40] Speaker 02:
Because she still used them deceptively, Your Honor.

[00:19:42] Speaker 02:
She still lied about them.

[00:19:43] Speaker 02:
She still lied about his involvement in the child's care.

[00:19:46] Speaker 03:
Right, but that, so I guess I'm trying, yes.

[00:19:50] Speaker 03:
So she used them to commit fraud.

[00:19:52] Speaker 03:
I think that that's clear.

[00:19:54] Speaker 03:
The question is whether she used the deception about

[00:19:58] Speaker 03:
his identity to commit fraud.

[00:20:00] Speaker 03:
And I think that's also what the dispute is about here.

[00:20:04] Speaker 03:
I'm just trying to understand how broadly that identity sweeps, particularly if we can assume, as maybe we must if the jury was improperly instructed, that he consented.

[00:20:18] Speaker 02:
Well, a couple quick points on that, Your Honor.

[00:20:21] Speaker 02:
One, I don't think the jury was improperly

[00:20:24] Speaker 02:
instructed here to we do need to construe the light the evidence in the light most favorable to the government but even if that's the case your honor the the work is is the phrase without lawful authority doing and the statute in a case like this the district court address that your honor the district court pulled from the Asina Alvarez case and said that the without lawful authority just means that it was

[00:20:51] Speaker 02:
used illegally, it was used in furtherance of the predicate crime.

[00:20:55] Speaker 04:
But that's in the prior phrase, during and in relation to any felony violation.

[00:21:00] Speaker 04:
So that just makes without lawful authority completely redundant.

[00:21:04] Speaker 04:
Authority refers to authority, permission.

[00:21:08] Speaker 04:
You have, you've been granted a right to do something, it sounds.

[00:21:12] Speaker 04:
I mean, maybe, I guess we're bound by a ZUNA, but.

[00:21:15] Speaker 02:
I think that's right, Your Honor.

[00:21:18] Speaker 04:
A reading of the statute, so.

[00:21:20] Speaker 02:
Yes, and maybe there is some redundancy in the statute, but I do believe this court is bound by Osina Alvarez.

[00:21:26] Speaker 02:
And to respond to Judge Johnstone's question, it's not just that she lied or didn't lie about his involvement.

[00:21:36] Speaker 02:
It is the underlying fraud or the underlying misstatements because this was a false statement in a passport application.

[00:21:43] Speaker 02:
Did she make a lie about his identity in those statements?

[00:21:46] Speaker 02:
So even if he were consenting,

[00:21:48] Speaker 02:
The fact that she lied about his care for the child, and she was complicit in the lie about whether he was caring for that child, means that she did use his identity deceptively.

[00:21:58] Speaker 03:
Does that set of deceptions go to the who and how?

[00:22:01] Speaker 02:
It does go to the who, Your Honor, because again, in the Dubin opinion, the Supreme Court said that the deception occurs if it goes to who is involved rather than just how or when the services were provided.

[00:22:16] Speaker 02:
Obviously, Brett Barker was not treating this child, he had not met her, but it wasn't just a lie about her care, it was a lie about his involvement

[00:22:25] Speaker 02:
at all, and so we might have a different outcome here if Brett Barker were in fact her treating physician and the lies were confined to her need for services oversea or the exigency.

[00:22:36] Speaker 03:
What if he aided and abetted or assisted in some way and said, here's all my information, go ahead and use it, maybe it was unclear to her whether that was sufficient to state his medical credentials, different case?

[00:22:51] Speaker 02:
No, Your Honor, because she still lied about whether he was treating her daughter, and she knew that was a lie, and there was sufficient evidence of that at trial.

[00:22:58] Speaker 03:
Well, again, that's the fraud.

[00:22:59] Speaker 03:
That doesn't go to the who.

[00:23:00] Speaker 03:
In order to get the aggravated identity theft, don't you have to establish that it's the misuse of another person's identity?

[00:23:07] Speaker 03:
If Mr. Barker were himself passing himself off as a physician and providing Ms.

[00:23:13] Speaker 03:
Parvez this information, how would that be her misuse of his identity in a way that goes to the who?

[00:23:20] Speaker 02:
Because her false statements, her underlying false statements, which is the predicate crime here, are about the service that he was providing to her child.

[00:23:29] Speaker 02:
And he was not involved in that medical care.

[00:23:31] Speaker 02:
That was a lie.

[00:23:32] Speaker 02:
And it was about who was involved in the transaction.

[00:23:35] Speaker 03:
So if he was a doctor and otherwise satisfied everything, and she was simply lying about whether he'd actually attended to her daughter, aggravated identity theft?

[00:23:50] Speaker 02:
Yes, Your Honor, because in that case, she would still be lying.

[00:23:52] Speaker 02:
The false statement would be that he's providing care to her doctor.

[00:23:55] Speaker 02:
She would be lying about who is involved in the transaction.

[00:23:58] Speaker 02:
And I think this court.

[00:23:59] Speaker 03:
But he is involved.

[00:24:00] Speaker 03:
In that hypothetical, is not he involved in the transaction?

[00:24:04] Speaker 02:
He's not involved in the medical care of her daughter.

[00:24:06] Speaker 03:
But the fraud goes to whether he's caring for his daughter, whether he's caring for her daughter, not whether he is the person represented in the letter.

[00:24:16] Speaker 02:
I agree with your honor.

[00:24:17] Speaker 02:
The fraud goes to whether he is caring for her daughter.

[00:24:19] Speaker 02:
And so if she relying about that, whether he's complicit in the lie or not, she is still being deceptive about his participation in that transaction.

[00:24:27] Speaker 03:
Well, I think I guess the problem with that is that Dubin suggests a concern about basically just doubling up any federal fraud crime, where all you're doing is there's already a deception here.

[00:24:41] Speaker 03:
And that if that deception involves another person, whether or not that person's

[00:24:45] Speaker 03:
the misuse of their identity is part of that.

[00:24:49] Speaker 03:
It sounds like that's just a doubling up of the fraud here that they caution against in Dubin.

[00:24:53] Speaker 02:
I understand that, Your Honor, but one of the things that this court has recognized in its prior opinions is that the purpose of aggravated identity theft, it's not just to protect the victim.

[00:25:06] Speaker 02:
It's also because when a defendant lies about who's involved in a transaction, it makes that crime harder to detect.

[00:25:13] Speaker 02:
and harder to address.

[00:25:15] Speaker 02:
And so it's not just the case that we're trying to protect victims, and that's the only thing that makes us aggravated.

[00:25:22] Speaker 02:
It's about the lie about who's involved.

[00:25:25] Speaker 02:
And I think one of the things that would be helpful is looking at the prior cases from this court and in Dubin.

[00:25:31] Speaker 02:
In Dubin, the lie was about the qualifications of the employee who actually did provide psychological services to real patients.

[00:25:39] Speaker 02:
In Hong, the lie was about the nature of the services provided because the massage services that had, in fact, been provided by real treaters to real patients were not Medicare eligible.

[00:25:49] Speaker 02:
So in both of those cases, the lie was about the what, not about who was involved in that transaction.

[00:25:56] Speaker 02:
And in contrast, in this court's prior opinion in Harris, the lie was about who was involved because the speech pathologist there

[00:26:03] Speaker 02:
who was a real speech pathologist working for that company and had had a relationship with that company and patients at that company, she was actually on maternity leave at the time of these appointments and at the time that they occurred.

[00:26:15] Speaker 02:
So these appointments never occurred.

[00:26:17] Speaker 02:
The service was never given.

[00:26:18] Speaker 02:
So there was a lie about the what, but there was also a lie about the who.

[00:26:22] Speaker 02:
And the lie about the what was tethered to the lie about the who.

[00:26:26] Speaker 02:
And that's even more so the case here because the lies are both about care that never occurred and the person who provided it and Brett Barker's identity here and this is something your honors all all observed to my colleague lent credibility to the rest of those statements there was an entire.

[00:26:42] Speaker 02:
fiction here built around this medical provider.

[00:26:45] Speaker 02:
And in fact, the passport manager testified at trial that of the hundreds of thousands of applications that he had reviewed, he could think of maybe two to three times when the minor was not present as required at the appointment and that he specifically went forward without the minor there because the defendant, quote, presented a letter from a physician stating that the child was medically unable to be present.

[00:27:09] Speaker 02:
He also testified that he actually went the further step and looked up Brett Barker.

[00:27:13] Speaker 03:
Fieden, I guess if it turns out that consent is material not just to without lawful authority under Asuna, but also maybe under a theory that is not the government's also to use, was the jury not improperly instructed by the court giving the government's consent as immaterial instruction?

[00:27:37] Speaker 02:
The jury was not improperly instructed because that was consistent with this court's prior opinion, which is binding precedent.

[00:27:43] Speaker 03:
But that depends on the without consent.

[00:27:45] Speaker 03:
I mean, it wasn't saying without consent for purposes of without lawful authority.

[00:27:49] Speaker 03:
It said without consent, consent doesn't matter at all.

[00:27:53] Speaker 03:
So if consent, which doesn't matter to without lawful authority, siasuna, does matter under Dubin, that would be a misinstruction, would it not?

[00:28:02] Speaker 02:
It would possibly your honor, but even in that case, this court would be required to analyze whether it affected the outcome of the proceeding.

[00:28:10] Speaker 02:
And again, there was a significant amount of evidence that she did not have Brett Barker's.

[00:28:14] Speaker 03:
The standard beyond a reasonable doubt then it would have affected the outcome.

[00:28:19] Speaker 04:
well the standard wouldn't be beyond a reasonable doubt that the standard would be uh... i believe evaluating the light in the uh... it excuse me evaluating the evidence in the light most beneficial to the government and there was no depends on whether you're looking at sufficiency or legal error in the instructions correct if there's a legal error in the instructions than the standard for assessing harmless error is underneath her and that would be that

[00:28:44] Speaker 04:
looking at the record as a whole, you could say, beyond a reasonable doubt, that it didn't make a difference.

[00:28:51] Speaker 04:
So that would be a standard not favorable to the government.

[00:28:56] Speaker 02:
Yes, Your Honor.

[00:28:56] Speaker 02:
And the 11th Circuit actually, and I see I'm out of time, or nearly out of time.

[00:28:59] Speaker 04:
If we're asking you questions, you can keep going.

[00:29:01] Speaker 02:
Thank you.

[00:29:02] Speaker 02:
The 11th Circuit just addressed this in Gladden, which is the case that the government submitted on Tuesday, and that my colleague just

[00:29:08] Speaker 02:
referenced and found that even if legal grounds for challenging the instructions have subsequently arisen due to a new rule of law, there is plain error review.

[00:29:17] Speaker 02:
And actually, in that case, there was a blatant error in the instruction because part of the instruction directly contradicted the court's decision.

[00:29:26] Speaker 04:
portion of the instruction that said that consent doesn't matter.

[00:29:30] Speaker 04:
Wasn't that objected to below in this case?

[00:29:33] Speaker 02:
It was objected to below, Your Honor, but not because it was legally inconsistent with the Ninth Circuit law.

[00:29:38] Speaker 02:
In fact, defense counsel conceded that he did believe it was consistent with Ninth Circuit law under Osuna Alvarez.

[00:29:44] Speaker 02:
He said that they disagreed with that law, but he did concede that that was entirely consistent with this court's prior opinion.

[00:29:52] Speaker 02:
And nothing about Dubin has disturbed this court's prior opinion.

[00:29:55] Speaker 04:
Let me ask you about the concluding section of Dubin.

[00:30:01] Speaker 04:
Because here's how the courts, when it applies it to the facts of Dubin, says here, petitioners use of the patient's name

[00:30:12] Speaker 04:
was not at the crux of what made the underlying overbilling fraudulent.

[00:30:17] Speaker 04:
The crux of the healthcare fraud was a misrepresentation about the qualifications of petitioner's employee.

[00:30:24] Speaker 04:
The patient's name was an ancillary feature of the billing method employed.

[00:30:31] Speaker 04:
The Sixth Circuit's more colloquial formulation is a helpful guide, though, like any rule of thumb, it will have its limits.

[00:30:37] Speaker 04:
Here, however, it neatly captures the thrust of the analysis as petitioner's fraud was in misrepresenting how and when services were provided to a patient, not who received the service.

[00:30:51] Speaker 04:
Why doesn't that support her notion that here it just didn't matter who

[00:30:59] Speaker 04:
it was, and it didn't matter what the name was ancillary.

[00:31:03] Speaker 04:
What mattered is that there's a false representation of medical services being provided and a medical condition being described, and the who was ancillary.

[00:31:17] Speaker 02:
Your Honor, because in that case, the lie was not about who was involved, and here the lie was about who was involved

[00:31:25] Speaker 02:
Regardless of the consent issue, it's about who was involved in the child's care.

[00:31:29] Speaker 02:
She knew it to be a lie.

[00:31:30] Speaker 02:
The evidence conclusively established that.

[00:31:33] Speaker 02:
And my colleague's argument about we could have subbed in any name here misrepresents not only the holding of Dubin and the examples given in the Dubin opinion, but also the record in this case.

[00:31:45] Speaker 02:
As to the Dubin opinion, on page 117 to 118, the court gives the example of a pharmacist who swipes info from the files

[00:31:53] Speaker 02:
and uses that to open an account in a patient's name.

[00:31:57] Speaker 02:
Now, if my colleague's interpretation of the opinion is correct, that hypothetical would not be aggravated identity theft because you could sub in any patient's name to open the bank account.

[00:32:06] Speaker 02:
It wouldn't matter.

[00:32:07] Speaker 02:
So clearly, it does matter.

[00:32:08] Speaker 02:
It doesn't matter.

[00:32:10] Speaker 02:
There's no requirement under Dubin that the identity be uniquely qualified to advance

[00:32:15] Speaker 02:
the fraud.

[00:32:16] Speaker 02:
To the contrary, the question is just did the defendant lie about who was involved when he made the underlying fraudulent statement.

[00:32:23] Speaker 02:
And my colleague's interpretation also misstates and misinterprets the record because the testimony again from the adjudication manager was that he actually did do the work of looking at Brett Barker.

[00:32:33] Speaker 04:
This is what I make sure I understand.

[00:32:35] Speaker 04:
Your point is that the who is at the crux of the lie because

[00:32:44] Speaker 04:
even if he consented, the lie is that

[00:32:49] Speaker 04:
he was involved in giving this care, and that was untrue, and that's a who connection that's at the crux.

[00:32:58] Speaker 04:
Am I understanding your argument correctly?

[00:33:00] Speaker 02:
Exactly right, Your Honor, and that is what was doing the work here.

[00:33:03] Speaker 02:
The crux of the false statement in the passport was, I am this child's doctor, and she needs this care, and she is in trouble, and she cannot be here for her appointment.

[00:33:11] Speaker 02:
That's what was doing the work.

[00:33:13] Speaker 02:
That was a lie, whether she had his consent or whether she did not.

[00:33:17] Speaker 04:
Thank you, Your Honor.

[00:33:18] Speaker 04:
Thank you, Counselor.

[00:33:21] Speaker 04:
We took your opponent over time and we asked you a lot of questions, so I'm going to give you the five minutes that you had asked for originally.

[00:33:29] Speaker 01:
Thank you, Your Honor.

[00:33:31] Speaker 01:
I just wanted to point out the reason why I believe the Dubin case came around.

[00:33:37] Speaker 01:
The court was concerned that the predicate offense had no mandatory sentence, and if that fraud

[00:33:45] Speaker 01:
involves any kind of name and number, the government can just tack on an aggravated identity theft, and then there's a mandatory consecutive two-year sentence.

[00:33:54] Speaker 01:
And I think that's the reason for the case and the reason why the court narrowed the definition or the interpretation of the word youth.

[00:34:07] Speaker 01:
In this case, I believe Mr. Barker's name was ancillary to the whole fraud

[00:34:13] Speaker 04:
the fraud was what's your response to the argument from the colloquy I just had with counsel that

[00:34:23] Speaker 04:
The name, the who, is still at the crux because the false statement is a statement about actions he was doing in a relationship that he had and that was untrue and that makes the name at the crux.

[00:34:38] Speaker 01:
Well, it's ancillary because anyone can put down a name and say those things.

[00:34:45] Speaker 01:
His identity was not the key mover.

[00:34:50] Speaker 01:
Some other person can come in like Dr. Smith, Dr. Jones, and said the same thing.

[00:34:56] Speaker 01:
In the case with the pharmacy that the Supreme Court discussed, the pharmacist who swipes information from the pharmacy files and uses it to open up a bank account and patient's name, the misuse of the patient's name would be material

[00:35:16] Speaker 01:
of what made the conduct fraudulent.

[00:35:20] Speaker 01:
Because those names were used for the bank accounts, their name, their Social Security probably, to open up bank accounts.

[00:35:29] Speaker 01:
So their names were needed.

[00:35:31] Speaker 01:
Their identity was important.

[00:35:33] Speaker 01:
It was a key mover.

[00:35:35] Speaker 01:
But in this case, the doctor, or Mr. Barker's name, is Ancillary.

[00:35:42] Speaker 04:
And I believe that- Testimonies that he looked it up.

[00:35:46] Speaker 01:
Yes, Your Honor, thank you for reminding me about that again.

[00:35:49] Speaker 01:
He looked it up, but what he said was, oh, yes, he's a doctor and he works there.

[00:35:55] Speaker 04:
He actually wasn't a doctor, but you didn't catch that.

[00:35:57] Speaker 01:
But he wasn't.

[00:35:58] Speaker 01:
He was a nurse, right.

[00:35:59] Speaker 01:
But you know what it could have been?

[00:36:00] Speaker 01:
The Dr. Smith or the Dr. Jones.

[00:36:04] Speaker 01:
I don't believe he found this doctor's name, Dr. Parker's name, because he wasn't a doctor there.

[00:36:10] Speaker 01:
He was a nurse.

[00:36:12] Speaker 01:
But it didn't seem important to the clerk.

[00:36:14] Speaker 01:
I think that's also part of my point.

[00:36:17] Speaker 01:
It wasn't important to the clerk who the doctor was, as long as it was a doctor.

[00:36:22] Speaker 01:
Identity is a name of a person.

[00:36:25] Speaker 01:
And in this case, the identity could have been

[00:36:28] Speaker 03:
Why wouldn't the licensing information and the use of his numbers, which again were accurate but did not pertain to a doctor, why wouldn't that be included?

[00:36:40] Speaker 03:
I think your friend argued that that was part of the who, the fact that he had a doctor's license and these numbers were part of his identity.

[00:36:49] Speaker 03:
Does that bring his qualifications into the who?

[00:36:52] Speaker 01:
No, because he really wasn't a doctor.

[00:36:55] Speaker 01:
He wasn't a doctor.

[00:36:57] Speaker 01:
I don't believe so.

[00:36:58] Speaker 01:
It was in nursing numbers.

[00:37:07] Speaker 01:
The point is, the reliance was on the fact that she couldn't appear because she was sick and she had to go to the UK.

[00:37:16] Speaker 01:
It didn't matter who the doctor was.

[00:37:18] Speaker 00:
Well, it mattered that she had supposedly seen a doctor who had specifically treated her.

[00:37:24] Speaker 00:
It seems closer to the bank account example than to an ambulance, where it doesn't matter who's in the ambulance.

[00:37:31] Speaker 00:
Here it mattered.

[00:37:31] Speaker 00:
It mattered that he had supposedly seen her in his practice and made a medical judgment about her.

[00:37:40] Speaker 01:
Going back to my same argument, I don't believe it was the key reason why the clerk processed the application.

[00:37:48] Speaker 01:
And that was the fraud.

[00:37:49] Speaker 01:
That was the fraud that the clerk processed the application based on fraudulent information.

[00:37:56] Speaker 01:
And it was irrelevant who the doctor was.

[00:37:58] Speaker 01:
What was relevant and what was the fraud and what was the crux of the criminality was these false statements about the child not able to appear and had to go to the UK

[00:38:09] Speaker 01:
for treatment.

[00:38:15] Speaker 01:
No further questions.

[00:38:16] Speaker 01:
Thank you.

[00:38:17] Speaker 04:
All right.

[00:38:17] Speaker 04:
Thank you, counsel.

[00:38:18] Speaker 04:
Thank counsel for both sides for your arguments in this case.

[00:38:22] Speaker 04:
And the matter is submitted for decision.