the evidence and second a defendant's constitutional protections i'd like to start with the missing links there are many in this case and each have to do with the link between the complex system of credit card fraud and this gilbert's knowledge of that scheme importantly it's not the absence of one or two of these links that poses a problem but the absence of any of those links indeed a jury could have found mr gilbert guilty of aggravated identity theft if some evidence showed that she knew that her stack of gift cards were linked to real people instead the government has provided no link between the complex system of credit card fraud and the knowledge that miscue maintained on the day she walked into convenience stores but both parties agree that eighteen u s c ten twenty eight a one requires that quote the defendant knew that the means of identification at issue belong to another person would liability affect your honor our our position is that if we show that it was a miscue over did the government failed to show beyond a reasonable doubt that mr gilbert had actual knowledge of the identity of these other persons that there are three reasons why pinkerton would not apply first aggravated any theft twenty eight as interpreted by the supreme court in florida figure shows that the actual knowledge requirement is you know up to twenty that case every circuit that i found that's looked at it as applied pinkerton liability to ten twenty a day have you found a case anywhere district court circuit court anywhere saying pinkerton does not apply to ten twenty a day the cases that i have found your honor when pinkerton does apply all of the courts are saying the actual knowledge is there so they don't overturn the actual knowledge that was found in ten twenty a day and they subsequently allow pinger to stand as well r p answer to my question is no have you found any of that because the actual knowledge is there  because the knowledge there pinkerton yeah in other words you're saying in each of those cases they found actual knowledge to apply and still plied pinkerton liability i'm not clear per watt but you can explain that to me but in any of those cases do they say the only reason of reasonable for c ability is unique to the individual defendant in the case in this case if there is no actual knowledge of her intent twenty eight a it's our position that pinkerton would not attach because for her as a defendant there was nothing about this conspiracy that made actual knowledge of identity theft aggravated identity theft foreseeable so this is a case of wire fraud all she had to know was that the right if all their imputing to gift card who coconspirator admitted that he sent money to china in order to purchase credit card numbers he sent money to the same person in china that he sent money to he she admitted to her co detaining that he was engaged in credit card fraud we have evidence that the credit cards work credit cards  work unless they're attached to a real a cow so i don't know why i need to go to pinkerton liability well your honor perhaps the best distinction that comes through in the government's brief that is is misleading perhaps is that the dico the cellmates testimony so miss allen james which is covert cellmate the government says was directly told by miss goldberg that you buy the cards and use the reader writer to read in code them the government leaves that conclusion hanging but the implication is that you load the cards with credit card numbers but miss allen james on the third day of trial said that mr gilbert told the group that her told her told her excuse me that you load funds onto the cards funds not lines of credit not account numbers for all the missing links and the evidence in the light most favorable to the government right that's all the evidence judge larson all the evidence judge larson just gave you and even though there's you're right there's other evidence in the record but if we take the evidence judge larson just gave a view in the light most favorable to the government why doesn't that satisfy the knowledge of court because your honor is a very high actual knowledge requirement so perhaps ten twenty eight just regular ten twenty eight identity theft perhaps that would be met here that's a different issue that wasn't charged in this identity of an individual yes your honor and our position is that none of the evidence shows beyond a reasonable doubt that that's true because her understanding of the conspiracy for wire fraud as affirmed by her discussions with her cellmate was that she was loading these gift card i thought she knew didn't she send money to china to sri and so didn't she know she was getting credit card numbers in return versus fons no your honor the evidence only shows that miss gilbert knew that to wal mart my or whatever and purchase gift cards that don't have names on them they don't have a definite information it strictly account number and you could go use that anywhere for a fifty dollars one hundred were changing the numbers on them so that it matched and in fact the last four numbers were the same so that it worked right because there were sit so if i'm in the store you run your card they were changing the numbers and the last four numbers on the card were the same as the last four numbers they s china so that because all you see i'm your receipt is x x x and then the last one number so that was the scheme the people who were running it wouldn't know because those match so she knew it least in part that these were the numbers were maybe i don't understand but i thought that gift cards don't have to be attributed to a particular person credit cards are you know you have your credit card he has his credit card that's exactly right your honor and and there could there's another category  of potentially valuable accounts which would be corporate credit card accounts now we had bank experts here bank bank tellers and bankers and those involved in the credit card industry say well actually all credit card numbers are attached or natural persons well that's there's no evidence  knew any of that so it's it's completely reasonably rely on their own knowledge of how the world works in order to infer what your client wouldn't know well your honor in this case because standard then the only time somebody could be convicted is if they got on the stand yes i actually knew whatever the thing is that they're required to know well you're out of the theater for a commission right or of the government nobody will ever be guilty identify cation along with stolen credit cards to can make good on it that that's clear identity theft and adkins these pinkerton liability right that they affirmed think of him liability as well but they did find actual not can i ask you a question related to both of those questions which is i thought what she told the jailhouse informant at one point was they were using credit cards that is not the testimony or are that's that's the implication in the government's brief the record reflects page eighty six you know ford zero five that miss allen james said that they were loading funds onto these stolen gift cards so you're saying the government misrepresenting that statement no your honor it's it's left open ended so for much of the government's brief they say for example these these accounts are only valuable if they are linked to real persons that's not true gift cards are not linked to real persons identities the government's brief i believe said that they loaded cards they use the reader writer machine to load them and the implication is that miss allen james's testimony was that they used the reader writer machine to load individual specific person's credit cards that's not at all the testimony the testimony was that misc ilbert told miss allen james that they used a loaded funds onto the gift cards say i'm in jail for credit card fraud i have to check the record i'm not sure about that's my recollection i'm in jail for credit card fraud and then even if it is as you say we loaded funds on to these cards a reasonable jury could infer that those funds came from credit cards so it's sixteen  the government says that she said she was in custody for credit card fraud and even so your honor that's that's the charge that the government brought against discover that's not a that's not a a showing of factual proof that miss gilbert had an actual knowledge so favorable to the government the question is could a reasonable jury make that leap our position is that there was not enough evidence for the jury to do that and it was these sort of inconclusive statements saying well the only valuable counts are for persons individual persons natural persons that was business accounts she might have thought even if she thought they were credit card human and thought they were all business accounts but the government only have to show that one of these accounts link that she knew one of these accounts would have been linked to a real person so for that not to be true she would have to believe that all of these credit card accounts were business accounts and not a single one would have been a real person but respectfully are still assuming that she knew their credit card accounts i'm saying let's  assume winking at over the credit card problem if it's a credit card does the government have to show that she knew they were all business accounts or just that one of them i don't believe that would be the standard your honor but our position is that there's no evidence even showing that she knew they were all credit cards and to rely on bank experts said only needed like that and i think they are many because there are different places in your brief sometimes you say one sometimes you say all to show aggravated identity theft my understanding is that the government would have to show that miss gilbert at least once used knowingly used what she knew to be an identification document to identify herself as a specific individual and i believe want to satisfy that thank you good morning to please the court i'm alexis stanford representing the government and i was trial counsel in the district court in this matter over and her co defendants were stopped twice both times hundreds of miles from home with hundreds of coded cards and numerous cigarettes in the vehicle with that same month miss gilbert wired four thousand dollars to china the western union her codefendant testified that she was the ringleader in a scheme centered on buying and using credit card numbers so what you're your opponents as pinkerton liability doesn't fly here because no actual knowledge is that accurate i think that we can infer actual knowledge forseeable as part of their ongoing conspiracy that an actual identity an actual number linked to a person would be used and they object to the pinkerton instruction below they did and did they object because it was imputing actual  foreseeable as part of your credit cards would be as part of the scheme why was it reasonably foreseeable i think based on the testimony of her codefendant that he knew that they were using credit card numbers and i think based on the testimony we had about ms gilbert's culpability that we know that she bought something of value for four thousand dollars from china we know that she was why wasn't she just buying give her if she was buying gift cards i don't think there would have been testimony from her former code detainee that they were loading something onto that artist at the pace that your opponent referenced sixteen  two where the question was did she tell you about her charges which is what the government claiming that gilbert did yes that it was for credit card fraud but that isn't true that the government indictment claims credit card fraud right that is true that the government indictment claims credit card fraud we're else is there that you can say jail mate gave testimony that there was credit card involvement that gilbert knew about respectfully i think the argument would be the use of a reader writer to load anything on the cards although the code detainee may be described as farms might be a misunderstanding of what was occurring gilbert was describing was the reincarnating of a magnetic strip on a credit card i'm not aware of a way to load you know who knows what and of course it should be on the record but what do you put on a gift card to make it work don't you load funds on the give her what actually gets loaded is a series of numbers that is linked to a bank that is owned by and there's a number of banks that work with for instance going on master card there's a series of banks funds get loaded and there's a sixteen digit number on that card just as there would be if it was a credit card that's linked to an account at a bank somewhere that says there's fifty dollars available miss carter twenty dollars  that's not tied to a specific person and that's the whole problem here is that she has this argument that she didn't know that these were credit credit cards of a specific person she thought that they were gift cards that are not attributed any person and i think there are some problems with her argument i think the condition of the card certainly gave notice that there was something amiss here i think the use of a reader writer indicates that these aren't just legitimate gift cards that they were using i think the code i'm not disputing that she knew there was a fraudulent scheme here but the problem is the specific knowledge and ten twenty a requiring that there be a specific person whose identity she is taking over but short of an admission from a defendant the only way to prove knowledge in a case like this will be circumstantial evidence and inferences that follow their from and i if if these cards were actually credit cards with somebodies name on it but certainly that would be i think credit cards with them it is they were not there were no names are visible on the card you were like these gift cards that supposedly you can just pick up at the store and somebody card numbers from china or michigan for that matter and load them onto another good part so i go in to to walmart and they steal a bunch of blank vanilla gift cards and now i'm like well that's useless because i'm going money attached to them so your allegation is she bought fraudulent credit card numbers those credit card numbers are all linked to a real person's account could she instead have bought  gift card numbers so we've got a stack of the nilla gift cards in china that have funds attached to them but those funds would not themselves be somehow attached to some account is it possible to have a gift card that is not attached to a bank account no all gift cards are attached to a bank account although it might not be attached to the bank account of judge larson it might be just sort of a more anonymous bank account that is how they work is that their length servicing bank somebody correct well retard it wouldn't be the target it would be will about say the target example if i go into target to purchase a gift card i the way that money or value is loaded on that gift card is whatever bank is servicing the get carla to target as a bank that does that context my bank confirms that i have  so they can i get fifty dollars cash and essentially what happens is there's a sixteen digit number a link to a an anonymous essentially bank account with a fifty dollars balance but if he then stole number but if somebody has to load money onto a gift card for it to have value then isn't that linked to a person even if it isn't in the traditional us you know the identity of a person and so that's not the identity of a person because if i have fifty dollars cash and judge moore steals it she's not steal my identity but that i get my cash but i think the numbers are what's at issue in a matter of this nature right these sixteen digit numbers are the identity of for instance the victims that testified so i understand your argument your argument is if judge larson goes and buys ten gifts or steals ten gift cards and i go buy ten gift cards and then she uses my numbers on hers she's using my identity i think that's kind of a stretch but i think there is a real person behind there and i think the distinction in this case is none of these were actual gift card numbers loaded on here these were all debit and credit card numbers found out all of these what did she know well i don't know things of that nature so they were all credit and debit card numbers there weren't any gift card number but there might have been a few that had going to be encoded in people's names and they do not there's only the magnetic strip and then the numbers that have been changed on the front  evidence in the record of this there's no evidence of what form she received numbers from china and whether the names are actually linked to them but i think that there are other things in the record that lead to a reasonable inference when the question is can any rational trier of fact find that this has been proven beyond a reasonable doubt i think the answer is yes make it a very simple hypo which is a hypo she did not take credit card  see lucky and present it as though it were her to get money no she didn't have a credit card that has somebody else's name on it that she was using so if we don't buy your knowledge argument do you win under pinkerton i think back to that and can you explain that i kind of got you off track sure i think that the question was pinkerton is whether it was reasonably forseeable in the context of their conspiracy that an actual person's means of identification would be used and i think when we look at what ms gilbert was actually doing as far as wiring money to china being aware of the reincarnating of cards when we have her co defendants testimony that he knew these numbers belonged to actual people and that they didn't have the permission to use them it's reasonably forseeable that in their credit card scheme that an actual number belonging to a real person would be used then the key to that is the co defendants testimony because that changes right because was no he was actually recruited into this by her and her boyfriend in the two traffic stops her codefendant mr goulden was only in the second traffic stop he wasn't present for the first incident that occurred in missouri and then he's recruited to join this group and participate in this behavior and is a maid is made aware of what the scheme is wires his five hundred dollars gets his fifty numbers he knows they belong to people he knows he doesn't have permission and we have that parallel evidence that ms gilbert is doing the same behavior wiring four thousand dollars in multiple transactions some of which was to the exact same person that mr goulden sent his money to and i thought was this was presented to the jury we view it in the light most favorable to the government and so we take all of that and say is it reasonably f when you view all this evidence in the light most favorable to the government including that they were created him and he said of i knew when i did this she did the same exact conduct is it possible that rational juror could think that that's the way we look at it correct whether any but the government's position is that what she actually did what gooden her codefendant testified about and what her co detainee testified that she admitted any one of those supports a reasonable inference that she actually knew that she was using numbers that belong to people and that short of that certainly then pinkerton liability makes her culpable for aggravated identity theft in this case and that briefly to address the sentencing issue raised by the  appellant title eighteen united states code section ten twenty eight requires the two year consecutive sentence in the statute for habits the district court from considering or compensating for that this has been upheld and recognized in multiple circuits the eighth circuit rejected this exact argument that gilmer is making in in two thousand and eight there that circuit noted that the statute limits the sentencing discretion of the district court with regards to aggravated identity theft but that booker and its progeny do not mean that congress is prohibited from setting any limit on a sentencing court's discretion the this court has recognized that in the stall case saying it's well established that congress has the power to fix the sentence for a federal crime and the scope of judicial discretion with respect to a sentence is subject to congressional control so i think that ms gilbert was sentenced pursuant to statute which was well within congress's authority to set that limit and that that sentence is entirely appropriate and if there are no other questions the government is prepared to submit thank you you thank you honour's three points first the government noted that perhaps the testimony from miss allen james represented just a misunderstanding of what was happening and that's exactly right miss gilbert did not the government has not shown any evidence and discovered knew what was happening here and that her actual knowledge of  and that means of identification belong to a specific individual quickly on pinkerton the government notes that mr good knew that there was credit card fraud here but again the question is whether it's reasonably   the the court recognized that the individual defendant had to recognize that the line of events that would occur as a result of the conspiracy at the time they agreed to the conspiracy was reasonably foreseeable to that particular defendant and here when you agreed to wire fraud and agree to steal gift cards and buy cigarettes with them our position of there is nothing that would give mr gilbert reasonably forseeable knowledge that her co defendants would intend to intentionally steal the identity of another person and therefore even if we sending me credit cards you only think you know target cards that are linked to a real person although maybe they are but let's assume they're not well why would you be reasonably foreseeable that at least one of those numbers you're buying james how this whole scheme work and she said it was funds and they were given him a visa gift cards and what they all agreed to was to steal these gift cards raincoat them buy cigarettes and for all of the dollars but yeah but they got a raincoat him with something and it's it's much more recently forseeable that they were numbers of people then they were thousands of gift card numbers which somehow would have to be activated but you're out of the question isn't whether they were going to be encoded with numbers of actual people it's whether coconspirators were going to know that that happened and then they were going to go out intentionally steal the identity of other persons and then out by you know some kind of numbers there were some kind of numbers that had value think some kind of sixteen digit number he knew that standard would be that the subsidy of crime that is aggravated identity theft was reasonably forseeable as a result of the conspiracy which is wire fraud so that is to say when miss kilburn agreed to wire fraud she reasonably foresaw that one of her would know that he had the end of it i was just if i was just getting on amazon and putting numbers in i bought from china right all i was doing was buying numbers from china and putting them on amazon would it be reasonably for those are credit card numbers when i'm putting in sixteen digit numbers and using it to get things yes your honor but with respect that's not what aggravated identity theft requires it requires that you knew that they don't and that you it's reason so if one of my coconspirators says of course this is what was going on in any everyone knows this and and i do it it's a reason we first people to me that when my coconspirators doing it too he's still in the same thing right but he and he knows so what you're i mean it seems to me what she's saying is see no we will hear no evil and yeah we recruited this guy we did this we're buying thousands of numbers but it's possible those thousands of numbers where banks were gift card numbers which seems completely illogical to me the way the system works it's much more possible that those thousands of numbers were credit card numbers i see my time is up and i the is possible that those are credit card numbers but what matters here is not what ended up happening or not what could have happened but what the defendant knew about the identity of those cards that she stole and what her coconspirators knew and whether that was forseeable to miss gilbert in our position is that knowledge was not  records show that they're the same number of numbers on a gift card or on a credit card i'm not sure that your honor i believe that the sixteen digit card is the sixteen digit number is what allows the machine to process but i'm not sure exactly whether that distinction is isn't that always true that it would be i mean this cuts in your favor i think but isn't it always true that the gift card numbers are the same as credit card numbers and that may be and i think that points to what on gift cards there because hypothetically if gift cards only have eight numbers and credit cards have sixteen and we know that she was using one or the other we would know that she should know where she was that's right and our position is that all of that point so why it's not forseeable under pinkerton thank you very much for your argument and i see mr westbrook that you're appointed pursuant to the criminal justice act and i want to thank you behalf of the court for your service to your client in the service to the public interest  appreciate it very much thank you thank you both for your argument the case will be submitted with the clerk call the next case pl