the jurisdictional prerequisite that the government prove that the insured bank had a status that status with not proven by the evidence in this case is the crux of the argument the standard begins with cook v united states the fifth circuit one thousand nine hundred sixty three decision i'm sorry yes and in that case they established that the fact that a bank was insured by the f t i see with the necessary element of proof and a prerequisite to any conviction so i can ask you just a quick question so we're on the same page yes or the evidence here is that there is an insurance certificate circa one thousand nine hundred right that's correct us testimony that the bank is currently insured yes or testimony by a vice president of the bank who had been employed with the bank from the outset but then had a five year hiatus where he was not employed with the bank and that five year hiatus covered the point of time that this particular incident occurred but so he to so we've got evidence that there was insurance in one thousand nine hundred predates the crime evidence that that it that the bank is currently insured post dates the crime and didn't he also say and yet this thing didn't need to be like updated all the time or so well it is but he was first not a person who kept the records that could certify that or testify that the court and i think the courts that have reviewed this and mr clawson was the person that we referred to in the other case that i think is of great importance platen byrd and following platen berg even in the fifth circuit williams which was byrd just had a certificate that was that's right and there was a seven year space of time in the court there said that's not good enough  issue is you have to infer from the date of the certificate which it was paid for george was paid up to the time of the crime right well i think that's a very good point because appellate court did not make draw that inference right and the court also pointed out that this is a very easy thing for the government to prove because not only do you have to have a certificate but you've got to certify that you have played paid the premium every year so that is in effect and all that takes is a copy of the check or a certification from an officer who's got that job to keep those records and say we pay it every year but it isn't the difference between platt berg in this case officers without any said yes or but they got to be the right bank officers who can certify and testify knowledgably that i know this because we keep these records and i keep them or i have maintained and paid for the premium each year well let's let's explore that yesterday with respect to this particular bank officer we know one he was there for an extended period of time to we know he was a senior officer in the bank for an extended period of time and three he actually testifies about the nature of the certificate by saying does he know that the certificate don't have to be issued every year i mean he actually explained something about the process of the issue once by the f b i see of their certificate doesn't he suggesting more than a  passing knowledge of the process does that overstate it if it does it is ok because this officer was not a person who maintain the records of the bank and what i don't know i accept that he wasn't across the audience which is what you're focusing on but i'm asking a slightly different question does a bank officer have to be literally speaking a custodian of the records i think to be able to testify knowledgably about the f d i c status no sir but we're objected to as in this case i think there has to be something to show that he has a reason to know this information especially when he was absent from the bank at the time of the he was on a five year hiatus when this all occurred could he not still and i guess we've got two different things going on one is his personal knowledge that a certificate was on file at the time if he wasn't there for the period of the crime i understand your argument but if instead what we're arguing about is really sort of general knowledge as a high ranking bank officer as to how these things are done in the ordinary course of business and his absence during the period of the crime wouldn't be dispositive right except for again the objection that was made at court because there's nothing to say well he knew this he researched this he looked at the records about this it could be no more than an assumption maybe a pretty good assumption but that's not proof and just remind me i'm sorry that i don't recall th specifically but remind me about so like what kind of cross examination was he subjected to about his knowledge of the objection was that it was hearsay and there was no evidence that he had direct knowledge of what he was testifying about and so once the  that was not testimony by this officer that is a quote from a case and again my objection at trial was this is not a person who has demonstrated that he knows this information we've got a case out there was testimony from an f b i agent that he assumed it was insured and there was bank stationery introduced in evidence that had the phrase member f d r i c on it and we said that was enough are you familiar with the the case i'm talking about now not familiar with that writes me is a very thin proof right and i would even there the circuit how the eleventh circuit how that was sufficient what you've got here is the testimony of a nineteen year vice president who claimed to be familiar you got his testimony that it was presently insured you've got his testimony that issue that i'm more concerned about in terms of the interpretation of u s v miller the six circuit case for identity theft and i want to point out very quickly that the case that was cited by the government supplement of the united states v michel the difference between the holding in miller which they talked about impersonating somebody else and in miller the difference according to the michael court and it's found at page six twenty eight of that opinion is miller also elaborated on these issues in a way that undermines michael's position miller lies about what other individuals did the court reasoned were insufficient where he acted on behalf of an entity rather than on behalf of individuals in this case monk's guard was talking about kyle morris a friend of his who worked for this big egg company and he then said the egg company would be the ones on the contract that was the entity that i think is the difference between miller and michael and in this case monk's guard was talking about an entity the big company that supposedly was the one that signed the contract that was invalid and i know i'm running out of time so i wanted to just get that point out before i come back on rebuttal  haven't decided what to do with that one day between september thirty in october one but at any rate and the opinion says it's a old fifth circuit case but put that aside the does hold the certificates not enough so now we have the officer who that it's insured today seems to me that you have to draw a factual inference from the time that it was initially taken out paid for were issued whatever that it was kept current all those years i factual information and and that and this is a criminal case of that disturbs me i think it's fair to say your honor that understand your point i think it depends on what kind of inference you can draw from the particular fact this isn't a situation like a search warrant where there's something that could be stale this is the sort of thing this this this objection was well  debated in the district court did this is not one of those isolated cases where that nobody says much it was wrong out and if you had a sort of a get and you had  as you know i think makes some sense to me your honor is and it's somewhat morbid but suppose a suppose i went to and saw an old high school buddy twenty years after the fact and said my child just had and eighteenth birthday or turn eighteen is born one thousand years ago the natural inference that someone would draw from that kind of statement is that your child's about to go to college or graduating from high school or something like that because absent evidence that there is some kind of intervening event it's reasonable to conform to infer that it would continue into the future now at some point that may be a tenuous inference but here it's in layman's terms to the jury and it makes it reasonable to infer that in the absence of some intervening event that what was will continue to be your just a practical question why is it that we keep having this i mean is this that hard you know what i think about and you can tell me why the analogy is no good but i mean you know like we all drive around with proof of insurance in our glove compartment so when we get pulled over on that and the officer says license registration  insurance you just pull it out you say see nationwide insurers this car is that that hard and what why do we keep having this problem i don't have a good answer to that your honor other than to say i plan to make sure in my cases that we have it nailed down all the prosecutor has to do is go to the f d i c and say we're about to try this case it involves a federally insured bank produce a certified copy take any issue that it's not difficult to and yet and you can see from this pals this question i think there were eight or ten published opinions going back to the old for circuit and running through our case for where this is ok and that isn't and he knew this but this problem when i was of this record there were two or three times the government forgot one two or three times i forgot what any evidence at all rested and then moved to reopen so i granted the reopening on one occasion they had we had to have a continuance so they could give some evidence that this is inexcusable this is just like a preparation i understand your honor i don't dispute it help me with the facts here the bank officer who testifies what does he sed how about his position in the bank his function et his relationship to the insured status of the bank what does he tell us if anything he's the bank vice president your honor he's the senior vice president he's been there for quite a long  time i don't have in my notes that he has i a discovered the period and time of the offenses i may have overlooked that you know i believe you also served for a time on the the loan committee that approve these types of loans and this is a small community bank it's not a large organization as i think less than a billion dollars in assets was the test from him that may have come or periodic right i think the question was does it have to be renewed every so often and the answer was that it does not do do you know whether this would do if it is renewed every so every so often renewed the charges involving must guard covered conduct in two thousand and thirteen and two thousand and fourteen he testifies in two thousand and sixteen right does he testify in words or substance that he was in fact at the bank in two thousand and thirteen and fourteen my recollection of the testimony your honor is that he started i think one thousand nine hundred three right and there was a five year gap but it wasn't clear what the five year gap was but does he testify affirmatively he was at the bank in thirteen and fourteen i don't believe but it's a limitation on when i think the case that's most on point with this one on that issue is the allstate case from the former fifth circuit three twenty five that second two fifty seven that case doesn't have a temporal or doesn't say when the certificate was or was not issued but it has testimony for years after the fact or the indictment is four years after the robbery and so presumably the testimony came after that that the bank was currently insured and the court found that that was years of really ignorant question for this kind of bank is f b i insurance optional and a tory i was it like flood insurance if you're in a flood plain you've got to have it or is it you take it or leave it i i don't have any information that it's dettori your honor but i think it's the inference that's discussed in cook is that sort of a universal inference that almost every bank i mean i can open up a savings and loan or a community bank without any insurance either coming from the f b i you see the controller of the currency well the federal savings  i mean if that's true that's a fact you should embrace i mean certainly are you but there's no record evidence on that point is there no record evidence around that i'm  and from time to time is not renewed implying that maybe when a criminal case where they have a hard enough time in a civil case but how do what do we say but if that was in effect at the time what how do we write it out i think cook answers way the supreme court won't jump on it and i think cook answers that question that that it's permissible inference from evidence that if something was in existence at a particular time and it's reasonable to infer that it will continue into the future and when there is additional evidence that that thing will continue to be absent some intervening event which i think clattenburg discusses then that's one and inference in one direction and then the present sense testimony of the other draw it's reasonable to draw from the fact that this is a pivotal issue that it was kept current yes ron i suppose the additional fact that you have is he says it is indeed current at least as of two thousand sixteen the officer does say in two thousand and sixteen this bank was insured that's correct your honor not came after the objections that testimony was not object to what existed earlier and it existed later and he's testifying two years after the events in question that's the basis for the inference that's right you're on i think it may be and that it was a small bank there were a lot of officers and he was a senior vice president and been there a long turn to the to the next issue the aggravated identities that stat we think this six circuits michael decision has the correct basically the correct analytical framework that use is under the plane an ordinary meaning of the term the defendant used the means of identification by using a forged signature and that much of the work to be done on these types of cases is in the on the during in relation to prong defendant relies primarily on the miller decision that came out of the sixth circuit and the borough decision that adopted what the miller defendant had proposed this is definition which was all asking yourself as often as someone or purporting to act on someone's  f six circuit didn't apply adopt that specifically in miller but the first circuit did and brought up but the miller decision we think has some incorrect reasoning on how it gets to the question of whether  is that is ambiguous the the canons that is applying don't really apply the sociedad words can and generally applies and you have a list of certain things that are have some common quality in the same thing with the catch all canon and here there is no common quality that would suggest a narrowed limitation of the term use  i think the six circuits miller decision also overlooks the background judicial construction of the term use from bailey and the  bailey that's where the supreme court said that use does not mean mere possession and so this statute coming after bailey and the bailey fix i think reflects a congressional intent to broaden the reach of the statute rather than than to narrow it and the legislative history to the extent it's relevant because i think the term uses is unambiguous supports that conclusion when the report is talking about the background need for the legislation  and the examples that they that the court gave or that the congress gave of certain types of identity theft are examples of light sentences rather than a description of all types of offenses that are covered within the statute or limitation on the terms in the statute and i think that the supreme court's decision and smith constrain one twenty four c is as useful it's one thing to say that the ordinary meaning of use a firearm includes using a firearm as a weapon since that is the intended purpose i do not believe that miller is overruled by michael it's the same circuit court of appeal they know what they did in miller and they explained michael and that's what i was winning out in the end of m comments before and i think that's very important michael does not say the miller court got it wrong they said let me in they went down to basics verbs and objects and sentences and phraseology but they very clearly said that when you are acting on behalf of individuals that was key to the miller court and that was key to the michael court miller the person was saying to people on my board gave me authority and i've represented to the bank that the board gave me authorization to make this loan the entity was the one in question not the two people in miller they found in favor of the appellant in michael michael was saying i'm going to use this pharmacy i mean this doctor he was a pharmacist and we use this doctor's identity and i'm going to use that patient's identity and i'm going to go apply for benefits from the insurance company and for that reason they said this is different because michael misrepresenting the two individuals the doctor and the patient that made a difference to michael and where they said you had an entity in this case cal maine foods was the entity that was on the contract kyle morris happened to be an old friend of mr monk's guard and he used his name as opposed to the other counts where he just made up names and the very differences it's not an automatic aggravator for every time you commit offense against a bank or in a loan it's not automatic that you have aggravated identity theft there is a distinction the government's argument would embrace that every time you committed a crime and you happen to use somebodies name without permission that would be aggravated identity theft miller says no clearly says no michael does not reverse miller michael clarifies miller and in there it says if you're representing an entity as opposed to an individual because that's the key to identity theft you're stealing or misusing or appropriating or misrepresenting the individual identity so the entity application is what michael stands for and when you apply it to mr monk's guards case that's the critical difference that puts it into the miller category not the michael category both are good law both are interpreted in the same statute both are giving you guidance on how to decide is this a use or not  use under the statutory interpretation and whether we apply this particular criminal sanction because if you go with the government's argument and and both miller and michael said you know we've got two reasonable constructions here we've to choose which one we're going to apply and we choose not to apply the one that the government argues which would be good and absolute criminal liability for every offense you could prove if you happen to use somebodies name that's not what they decided that and that's what they clarify i think for this court in months card so that's what i think is a very important difference in the application in the development of case law from miller to michael which was just decided this year on the other issue just acknowledge the court's citation by justice marcus about the one case which i'm not familiar with i think it would be inconsistent for the f b i agent to testify as to those records i think one distinction is when a bank says we don't have to renuart certificate every year that's to operate as a bank we're talking about what's admissible in a court of law in a criminal prosecution where the government has the absolute presently insured and so on the grounds of the evidence of a present condition one could reasonably infer the existence of the past condition as well i would cited the distinction between cook in this case in cook that lawyer stood silent did not ask a single question did not object did not move for a judgment of acquittal that's very different from mr months guard situation where i objected i move two thousand and sixteen from the senior vice president this bank is insured by the f b i see from which it was to grow going would have a court reasonably infer that two years earlier it was insured as well and that seems to me to be what cook says al b it cooks a plane or a case and it comes up doesn't come up on the right quite the same way i don't know why your fellow justices and other courts later on would say i don't know why the government doesn't get this it's so easy to do as you said get us you get a statement from if the i c show your proof of payment or premium any particular year get the records that you have in your bank just put it into evidence it's easy to prove why would they talk about that if they didn't need something more than just that inference that you're talking about i think that that's what that that's why they say government give it to us we need