good morning your honour's elizabeth fault with the federal defender on behalf of mr weber howard lever is definitely guilty of aiding and abetting mail fraud and even tax fraud but he did not commit aggravated identity theft those five charges are the only reason this case even went to trial and i urge the panel to please consider this case as an opportunity to bring some much needed judicial reason and common sense to this statute which is increasingly being coming abused this is a case when mr weber was in prison and he consulted with inmates about the opportunity to get free money from the government he gave them a form and said if you want free money from the government send your social security number and your information to my buddy in california help file a tax return for you and you can get the refund so the buddy mr berkovitz do you admit that he violated the statute in terms of the forgery that he did on the forms the government's clinging to that i think there is an argument that he did not even in the context of use because he did not hold himself out to be that those inmates he was acting as their agent i don't how do we know that i mean so it seems to me perhaps the defense could have asked for an instruction that in order to commit forgery you have to hold yourself out and this wasn't a forgery because he wrote c b but the jury wasn't given that instruction because the defense didn't ask for it and i feel like we're not sure what the jury thought about what mr berkovitz meant when he signed because no one asked them to ask that question or answer that question well there wouldn't have been an opportunity in the context of specifically in the forgery to ask for that the defense but if the identity theft is based on forgery which i think under blixt we have to assume it can't be right so then you're only possible differences that blix is different because in  person didn't write little initials next to the signature and somehow these little initials mean he wasn't really impersonating the person even though he signed their name i mean i think that that's what you're holding onto is the little c b m i right i mean that is definitely part of it it's also in blixt she was not acting as an agent that the person whose signature she forged had no idea what was going on in this case by sending the form to mr berkovitz the inmates were authorizing him to file a tax return but you can't authorize someone to file a fraudulent tax return and not legally and so then so then you have a problem with assume well assume it is a very different situation because in that case even though there was consent the brother was holding himself out to be another person that's what the ninth circuit wanted to close the loophole on is they did we don't we don't we want to invest in not allowing people to pretend to be other mr interest signing someone else's name and then you're saying the difference is that he had their consent but the brother in assumed i gave consent to the difference is that well there's two parts because mr weber is one step removed from mr berkovitz and that has to do with the aiding and abetting liability but respect to the pure question of whether berkovitz committed aggravated identity theft here he is acting as an agent in doing that see and that is a very different kind of consent then somebody passing off their documents to a brother to allow them to pretend to be somebody else mr berger i mean why is it a different kind of consent so it if the brother says you know you can use my passport you can pretend to be me then why is that different than the person filing the taxes saying you can sign my name and pretend to be me and get some of the money because mr berger isn't pretending to be that person the difference that it's ok to tax return for another person if the person c d it's never ok to present another person's passport exactly couldn't have said it better myself and so in this case we even have one step removed we have mr weber now being convicting of aiding and abetting that act when he didn't prepare the information but let's put that aside for a second to understand whether this use for berkovitz counts or not because i think that's what you're asking us to write an opinion about saying that being an agent doesn't count under b assume it's somehow different that's what you'd like us to say that would be the best form of opinion but in order to reverse these charges against mr weber actually the aiding and abetting aspect to that is is even more important i'm asking this court to reverse mr weber's convictions ultimately whether this court finds that mr burkett committed i graded identity theft of this forgery that is an important issue but that's not really the only issue so i'm still confused about whether this issue has somehow been forfeited because there was never requests for a jury instruction and that being an agent doesn't count as use i mean this argument you're making the jury wasn't asked i don't think to decide whether berkovitz really had the authority to sign on behalf of these and mates or not so there was a model instruction right there's a ten twenty eight day model instruction that just uses the use and up until four fifty eight pm the night before closing argument this was never even going to come up because there was no aiding and abetting on the table so as of the closing argument on instruction mr weber was actually very happy with the way the jury instructions were in the case because he was going to be acquitted but i think our case law that we have in our circuit basically says aiding and abetting and of aiding and abetting is implied with every charge  so whether he assumed that are not i'm not quite sure he was correct to assume that saw i guess i'm just i want to make sure i understand your theory here how how how is the your client the use transfer or possession of the information sure the how is it that he didn't pay the inmates themselves filled out these forms and mailed them well you have your client  presented he came up with this scheme certainly mr burke of the chebaa role as well and do we know what happened to him what happened in his with mr perkovich eight months ok and so then sometimes he'd fill out the form sometimes he was mr weber knew that these individuals didn't make the her part money that was needed to get this benefit he said all this information to mr that that's correct and that's a very important discussion the whole defense in the case was that mr weber actually never touched any of this identifying information that it was the inmates themselves who made the decision that they mailed the forms they're the ones who transferred their information to mr burke and they were directed by your client he was a talker he told them about the program he knew they weren't entitled to those funds and he made he's the one who came up and gave him the forms told him what to fill out and have it sent to his this this company that they set up to have those been the benefits that were ill he's guilty of the fraud the forgery is the specific identification of the aggravated identity theft as far as mr weber knew mr berkovitz was signing just like any tax preparer but he signed a tax form a tax preparer a line that he signed on the signature last year where there's no evidence mr weber knew that well you didn't ask the jury to decide anything about that but there was no question posed the jury about whether he was impersonating the people he was signing for  i mean i think that's true the model instruction was given i mean so so i think the model instruction i think matches our case life think but you're trying to say it shouldn't because there should be this distinction but then i don't understand why you didn't ask for that distinction to be asked to  well you want again that gets back to the point about the four fifty six pm and why it's problematic when judges are issuing instructions in seven o'clock at night when you're writing a closing argument after further arguments have been closed ask for rebuttal or to get more time after instruction or to do anything like that to account for that i filed an objection to the aiding and abetting instruction did you ask for time because you just said that sounds like you were most aggrieved by not having the opportunity to speak about this in the closing argument or to fully argue argue it did you ask for any time to you know prepare revise your closing argument i didn't ask for any time to file additional jury thanks tal is my opposing counsel your morning in may it please the court pearson of the united states there was ample evidence in this case for the jury to convict mr weber of aggravated identity theft for possessing transferring or using the names authorization to found that for only two of the inmates and always all they said was that they didn't give him authority to sign the return but there's no question that they knew that a tax return a fraud joint tax return was going to be filed and they authorized its filing isn't that true i don't believe so your honor because i believe what they testified to is they knew that something was going to happen it was going to involve their taxes they didn't know entirely what that was and they were surprised that tax returns were filed on their behalf so i think that to say that they clearly understood that what was going to happen was that they were going to give this information that mr burke of us was going to use it to fill out a false tax return and he was going to forge their signature in order to do this i think that testimony is not that clear i think what the testimony is is that mr weber told them that they could get some free money from the government it had something to do with their taxes and if they put their information on this form he would give them a check i think that's what the testimony shows you think the jury thought that they didn't know there was going to be a tax return f and i think it's different for each of the three inmates i think some of them the ones who were recruiters i think they had more knowledge about what was going on however some of the inmates didn't have as much knowledge but it's not particularly relevant whether they knew a tax form was going to be filed well let me ask you a question about that set up this way in some circumstances one person can use another person's name or identification  with consent you file papers all the time that have the united states attorney's name on there and that's perfectly ok in some circumstances though a person cannot use another person's name or benefit cation even with consent and so for example a person cannot submit another person's passport ever even with consent and that's what the earlier case  held that using another person's name or identification with consent in a transaction of a type for which consent can lawfully be given is aggravated any names and social security numbers to file false tax return oh i have presided over two or three of those cases i understand but they do it without concern your honor i believe and i i may be misremembering but where they purchased the inmates names they the inmates obviously know that they're selling their names and their social security numbers so arguably that is with consensus now all the cases i've had that i don't remember that maybe all the cases i've had  prisoner whose identity gets used doesn't get the money the person doing the fraud on scheme gets the money so they steal names of hospital patients and prisoners and anybody who's not likely to file their own tax return and some people who are so there's no question that's aggravated  after this case is different they're given money back to the people whose names are being used well in some cases they are and in most cases they weren't your honor in fact most of the inmates never saw any money from them these three that are the only three that matter for  submitted only one of the three actually there was a check issued in only one of the three inmates names and that person testified that he never actually saw any of that money so the inmates although some inmates didn't get money i think that the three victims here are the three inmates here whether they're victims or not is is debatable they didn't see any money from this scheme so but they thought they were going to they thought they would yesterday but under a soon this is all irrelevant because it doesn't matter whether they gave consent or not but but as soon as on the other side of that caught me of two kinds of transactions as soon as the case where you can never present somebody else's passport so without if you interpret without lawful authority meaning it is not lawful to give authority to make that use then osuna is perfectly correct i don't take any issue with assuming it's obviously correct but this this is different i mean you really do stretch aggravated really fast beyond anything congress could possibly have meant to cover don't you know your congress actually cited the filing of false and fraudulent tax returns in the legislative history as one of the things that they were use the identity of another person and my wife's her name's on the return in your scenario your wife is not in on it well that makes or what if not better for you that matter just whether he signed her name or not i mean your position would be if he signs her name then it is aggravated identity theft isn't it if he signs if you uses her name to commit a fraud then yes it is aggravated with with her consent and whether i signed a name or not i'm going to use your social security number so you really do think that everybody who submits a false tax return for oneself and one's spouse commits aggravated identity theft i haven't given a lot of thought to this here your honor to  minimum mandatory yes your honor because that person is using the identity of someone else and remember there's there's two evils that the aggravated identity theft statute is aimed at one moment to give you another example minutes loan application it's got the names of the board of directors on there as part of the application it's fraudulent you mail it in are you submitted to a federally insured bank so it's bank fraud or mail fraud it's got another person's name on there aggravated identity theft to your minimum your honor if what if what is happening in that submission is that you are the defendant is using the name of another person in order to commit the fraud then that is and that is all right let me give you let me give you another one case i just presided over one submits a social security application and she says she's got custody of the twelve year old actually a twelve year old's gone to live with the father so she's now committed a federal crime she submitted the so security application i don't sentence her to two years in prison there were extenuating circumstances but if my u s attorney a chosen to  charge her with aggravated it in the theft to your minimum mandatory because the daughter's name is on the application right if the name is used to commit the fraud now there are to see of course it was then that is what the statute punishes that punishes the use of somebody else's information to commit a crime in most cases it's a fraud crime and the reason for that is twofold one is to protect the victims from having their identit stolen the other is to prevent the defendant from using someone else's information to shield their own involvement in the crime and that is precisely what mr burka bitch and mr weber did here they used the inmates names signing forging their signature to hide their own involvement in the crime they did not indicate that they were the preparer they did not put their names anywhere on there to hide from the i r s that they were involved so is that that changes my social security case so you're going to have it come out differently because she didn't have the identity her own identity no you are where you can go find that the statute i don't understand the well if the are two as i stated there are two purposes one is to prevent the use of somebody else's information and in the scenario or giving me as the twelve year old girls information to commit a crime she is being unwittingly or wittingly drawn into this crime the other is to hide the perpetrators involvement in the crime those are two separate purposes of the statute in this case they were using the inmates identities in part to hide their own involvement in the crime and that is clearly under blixt that is clearly under this circus precedent a use of the identity this court does not need these are very interesting questions this court does not need to get there to decide this case this court can decide this case you argued paro who filed the tax returns and any two of the eight recruiters that mr berkovitz testified to three of whom testified at trial that they were involved in a in the scheme and that they at least mr weber had told them enough about what was going on that they clearly were involved i just wanted to save money from the scheme that was deposited into their prisoner account i think that the court is saying the problem here with the potential abuse of the statute  the legislative history is clear on the statute that it was meant to cover stolen identities and it is a very different situation when there is a non agency theory presented this you think assume is wrong i've preserved that issue but that's not what's at issue here with the issue here is that you're punishing agents potentially lawful agents who are using information in a potentially lawful way that is completely different and outside the assumed a contact everyone  here knew it wasn't lawful right i mean maybe maybe a few of the inmates didn't know but they didn't they weren't working for the hours that they were reporting this income i mean it was false it was made up so it's not like there was any possibility of a legal agency here it was false but there is a possibility of a legal agency with the somebody filing someone else's tax return that's the context that we're talking about here that's what troubles me about  ability that happened there was one or two tax returns that were actually legitimate yes there were people who did actually have wages on the books and nuff to get that says about almost an exact amount and were they one of the people here mr now burning scuse me mr burning yes there was one that we so yours but that's not someone who had a charge based on their tax return was it that wasn't one of the aggravated identity theft charges they did not charge the one i need to get you to help me with as you can tell from my questions i'm not at all sure that it's aggravated anything after the fall or returned with somebody else's permission even if the return is fraudulent here's my problem is the very first thing judge friedman asked about you didn't ask for an instruction they gave that is the law and in fact i think you told me that you were very happy with the instructions until the end of the aiding and abetting so let's leave that out of it for just a minute it seems to me that to rule for you in this case we have to find that there is no reasonable view of the evidence under which it could be said that the defendant and mr  it exceeded the consent they were given there has to have been something they did without consent but if there is something they did without consent then your rule twenty nine motion fails and it's really just  name on the return if a jury could that was the use of the name without permission wouldn't that rule twenty nine motion might lead to different jury instructions but you didn't ask for that well i can't go back and i did not ask for a jury and there's no doubt i did not so if that's what it comes down to there's nothing i can do to change that but i still urge the court to then take that next step which is how is mr weber aiding and abetting that when he has no idea what perkovic is doing signing as a prepare whether he's sending the return back to the inmates to have them sign them and then send them to the i r s he doesn't know how mr burkett it is affecting the actual filing and so how is he then aiding and abetting that particular action so i would ask the court to take that one extra step on the aiding and abetting thank you thank you very much thank you both for your very helpful presentations here today of the case of united states versus how webre is now