with the text you look at the context you look at the structure you look at the purpose and in another way this case is really a question were very light in the ordinary meaning to people on the street to people who wrote the statute everywhere of the phrase means of identification of another person includes deceased persons as anyone who's ever held an idea or a document of a past long gone in their hand knows that document refers to a person actually really shows the example we're talking about because subsection a to use about terrorism it uses the exact same phrase that we're talking about here means of identification of another person and it also includes another way to commit the crime to commit a terror terrorism offense which is using a false identification document under the defendant's argument the reasoning of the district court if you killed someone and took their password to use it to commit terrorism offense that would not satisfy the stuff initially because a real passport that is is not a false identification document as it's defined a statute has to either be just made up or you have to alter it after and according to their argument it wouldn't be a means of identification of another person because the person is dead just like in your example judge  and so congress would have made that statute applied to a fake made on my printer at home pass or to a password of a real person who's alive but not a passport of a person i killed in order to get it congress could write that statute but i think it would take a lot to assume that that's what they did and i don't think anyone is already in this case that the term the phrase means of identification of another person has to mean the same thing in a two as it means in a one and so i would return back now to the text of a one and i want to emphasize that we're not really interpreted just the word person just like in your opinion in hilton you talked about the statutory phrase means of identification of another person and i think that's what led to st get in mina's to say that the natural reading of this phrase isn't ambiguous at all they said and i'm quoting from the case were one presented with one's late father social security card for example and asked whether that was the means of identification of a person the natural response would be yes it's my father's rather then no it used to be the means of identification of a person but now and so ordinary language in our view ordinary language actually controls this case and so it makes it so much different built the hilton approach is exactly here it's whether st to people living living and and so we're not asking the court to to do anything crosswise with milton but simply to apply the framework that it issued in that case returning a little bit to context and structure i can't help but note that the supreme court's decision in florus just like in hilton i think this court mentioned it wasn't really relevant to the definition of person but i do think it's relevant this question in a very specific way so the is a lot and i would submit to you that will actually make prosecutions of this crime incredibly difficult even in the instances that would not be prohibited because it's not a deceased victim you kind of had two kinds of identity theft the one in this case where he knew the person knew he was deceased used their identity but there's also a very common form of identity theft where the person gets the id from something they steal it from their employer somewhere they get it from a dumpster they hack it a computer server so they don't they might know it's a person just based on the context but they don't know that person's alive or dead and under force we would have to build prove beyond a reasonable doubt he knew that person was a lot i would submit to the basic fundamental operation of the statute would be severely wounded if that were requirement again it's another strong can textual it that this plain language that we would submit to you already includes a cease persons that's the that's the correct term is looking more broadly of course of the purpose of the statute this is a crime that's designed to protect against the worst kinds of identity we have basic identity theft statutes this is aggravated identity theft because we recognize that when you steal the means of identification of a real person it's both more damaging and more effective and i think again of the st circuits opinion and then as they talk about how actual identification information provides better cover for the wrongdoing that would be one then one based on wholly fabricated identities regardless of whether the person whose identity is stolen is a lot and i think that's exactly right so the purpose of this statute aligns and that's very different from hilton where the question was about corporations and i will acknowledge there's really not a lot in the context history of the statute to give you an answer one way or the other here we have live or deceased but an actual individual again i don't think history in this case i also would submit to you that that's another indicator of just the plain common understanding of what this language met at the time it was and so when we say that we think an ordinary person would interpret it that way it seems that that's what they were interpreted as at that time that that is the substance of my our human and i do want to address that we think the district court it's very clear from the record to three times before the same district court we point out to the district we're below that he'd actually sentence the defendant who stole those identity of a person i believe was after henderson and so this is coming up with some frequency so we knew that we would be taking it up in some cases the right time it please the court i'm calls on kelly bagger and i represent lester george your honour's the question in this case is how to interpret the word person in section one hundred and two a day when person may or may not include deceased persons it has to be conceded that person may or may not include deceased persons the government admits that all of those cases that are either circuit cases say that it may or may not dictionaries common usage etc to answer the question this court would apply the same principle that applied in hilton and that the supreme court says must be applied in every interpretive interpretation of every criminal statute which it must which means that it must be strictly construed and congress must plainly and on mistakenly show that the conduct is prescribe that's not the case here there isn't anything that plainly and mistakenly shows that deceased persons are covered by the statute that's how the mistake was made by those other circuit courts i pointed out in our brief none of those other courts acknowledges this court did in hilton that that's the problem that has to be applied in constru a criminal statute it has to be strictly construed you have to look for something that plainly and unmistakably prescribes the conduct you know actually you use the word seized version and that's my point that is exactly my point person can include a deceased person but it doesn't always include a deceased person a dating is a room is why are not to cease to persons a subset of you know the issue was that to you it was a crime to sow apples on the street apples can only be sold in grocery stores so that if if i sold a macintosh apple i could say i wasn't given notice under the statute because i wasn't told that the macintosh apple qualified as a now will you human i'm saying it seems to me that once you're in a subset of the umbrella now and if you will it keep the case is almost resolved i mean how how would i not how could i make a credible argument that i wasn't selling i wasn't on notice that the sale of a macintosh apple was a crime if it was a crime to sell our polls hewett i'm saying and i think that's analogous to here and if it isn't analogous tell me why it is i think i think a macintosh apple would always be an apple just like a living person would always be a person but a deceased person isn't always a person how do we know that i mean it well dictionaries for example your hon when the courts are looking for the plain meaning of the term they often look to dictionaries here saying a deceased person has to be a person has to be alive yes there's any case law that supports that  none of the courts that looked at this question have said that person has to be very i'm not talking about only this statute you have any case law at all that that interprets a statute regarding a person to say that person to be alive i don't know your honor i haven't citing i think the birth of suman you don't like what i do you could point to is the dictionary definition like the american heritage dictionary which defines person as a live in a living human be yes i did so there are dictionaries that define a person to be a living human being but you have to have the knowledge there dictionaries that describe a person to include both living and deceit as yours richardson that was my point that it may or may not it can but doesn't necessarily person may include deceased persons as that term is used it doesn't necessarily i would point to the court's analysis of the word individual in hilton so the court recognized that under the dictionary act person always includes corporations and of course the question  in hilton was does the term person include corporation and the court said well st of all we're going to look at the dictionary act as would always be required when the term person is used and yes it does include corporations but the definition is means of identification of another person and means that identification looks to a specific individual and so the court said we also have to look at the term individual what the court said individual may or may not include corporation so just like the word person may or may not include the deceased person dictionaries the best evidence of that the court recogniz hilton corporation i'm sorry person may or may not include individual individual may or may not include corporation and so the court said we've got to find something very specific very clear plain in on the state couple in the courts in the in congress's inclusion of the word person to mean corporation and it didn't find nothing at that your case can pretty much be summed up th  it's shifting the burden and for mr george to have to show that there is the ambiguity isn't isn't overcome by some text structure legislative history etc i take it you're saying it just doesn't matter it's ambiguous if we're having this debate to begin with it's ambiguous it isn't  and in order for the government to show that person does when it when it may or may not the government has to show that there is something plain and unmistakable in the rest of the statute or in legislative history or the structure of the context or something that that causes the court to say we must include person within the definition person the decease e said that person includes corporations but only when the context like supports that interpretation and when you look at this statute the reference to a specific individual in the surrounding circumstances did not suggest that it was a corporation but that analysis turning on section one doesn't translate very well for you i don't think your honor that the dictionary definition actually works the other way  in that person would include corporation unless the context shows otherwise i then agree with how your court how you want to work through what the hilton court did and said ok well that the context which includes the word individual which may or may not ration well maybe that does establish that corporation wouldn't be part of the person in this case and it's in there and it is ambiguous but it's  it is the case that corporation under the dictionary act is part of person unless the context was otherwise i don't think that necessarily helps in this case except to say that when person is defined in the dictionary act it doesn't say deceased person it says individual corporation body politic cetera and individual and again those are the two words that the court looked at in hilton and said we've got to find something very clear when there isn't a clear indication in the statutory language to say it's going to be covered a corporation is going to be a person covered by  for someone to murder someone and take and use credit cards in the past for something that would be a crime it is in our view would not be aggravated identity theft but there would be other crimes that could be charged to a person who committed those acts it just wouldn't be aggravated and it is the case your honour's that the government's argument is despite what counsel just said that a two in a two and a one the meaning of means of identification of another person has to be the same thing that's their whole argument all of the circuit courts who looked the the so called context said we're going to look at eight to st and then back into what a one must mean when it uses that same phrase or that same word person means of identification of another  congress did in connection with certain terrorism offenses expand the scope of offense conduct that would be covered because it added to language beyond  addition to means of identification of another person or false identification documents congress clearly did intend to expand the scope of criminal conduct that would be covered by a two but it did so not by suggesting that there was a broader meaning to the word person but by adding this separate component to the statute that's what was added that's consistent with the statutory purpose that that the government said is is what's going on here the congress is clearly concerned about terrorism offenses they added proving that speaks to that directly means not means of identification of another person but a false the issue which is on page two of their brief is whether the government with a district court buried in dismissing the aggravated identity charge when there was a motion to withdraw the guilty plea and the can comment motion to dismiss count two the government opposed both of those motions and made an argument why it was error for the district court to dismiss count two and also why it was air for the district court to grant the motion to withdraw the guilty plea appropriately and this is on page four th appropriately what the government's counsel cited was rule haven't to be that's the rule of criminal procedure that says when a guilty plea has been accepted and before sentencing it may be withdrawn a fair and just reason so that's that's what that's the test is there a fair and just reason and the government's counsel argued at trial there wasn't a fair and just reason there wasn't anything wrong with the rule of colloquy and none of the other factors that sometimes are considered by courts looking at whether there is a fear or just really none of those other of those other factors why there isn't any of that in this brief your honor and if if i tried to make the argument that the government was making here they would say that i waive that argument because there isn't any argument in the brief why it was error for the district court to have granted the motion to  just a few points in rebuttal briefly i would start with the waiver point that my colleague ended with and with great respect to him no we would not have made a waiver argument in the circumstances i made plenty of waiver arguments and plain air arguments are usually the respond t i've certainly done that before but i think it was clear to everyone that this was one legal decision with two ramifications we were challenging the legal decision it's in the very feet of my colleagues it was one sentence in our brief one it wasn't it was multiple it was the st sentence of the st was the st paragraph of the argument section of our brief says that is what the error was our relief requested both opening brief and the reply brief was that you would remain and in order the district to reinstate the defendant's plea and count two and at any rate if you were to look at the nd sentence in a transcript it could not be more clear that the district court made its decision to allow him to address his guilty plea for the exact same reason henderson the court says i'm going to law you to withdraw your plea defense counsel and stand up and says are you also dismissing it he says oh yes i mean these were decisions of that rising fell and you don't have a series of factors when the question about if your question of loss of someone's  say are just in his intro and throughout his argument my colleague brought the word person as if that's the thing to interpret and i get it but the freight the phrase to interpret is a means of identification of another person it's not just the word person dictionaries are great they're helpful for one thing which is to see whether a particular meaning is within the ambit of they don't really tell you more than what you get is context and so i think it when you look at that phrase in context the text alone is clear and then you add the context and the structure in particular when you look at section eight wanted it to the other circuits to back into it what they did is they looked at the text of a one and then they said well we're also mindful of the fact that if we interpret it the way the defendants are you doing it would deeply undermine it and i just don't think congress expanded the statute to include a completely fake made up for and intended to exclude a very real passport or social security card or a document use of a deceased person and that just seems it seems nonsense so i would ask you to join us we've been able to find any decision of any court circuit court district or other than the district court below that has held that a deceased person is not a