sure your client does thank you judge welcome in ten years or five minutes for rebuttal the question before this court is the meaning of the phrase to use without lawful authority under the aggravated identity theft statute section ten twenty eight ok the circuits are split on its meaning and it's largely a matter of first impression for this circuit mr gatt with is asking this court to find a use without awful authority is a use that separates a person from their identity and that separation can occur when someone steals your identity or when someone assumes your identity and the act of stealing is simple it's taking your identity whether i'm picking your pocket or i'm hacking into your computer assuming your identity is doing something in your name actually when i forge someone signature or when i tell the authorities that i am someone to other than myself and i don't understand that that doesn't sound consistent with britannica we are we are bound by return so i thought distinctly and i could see you were arguing is that it is that the the use has to be for the personal benefit of the of the of the defendant rather than a third party but you  after that is a case just like times where the facts bear out that the person the defendant used a means of identification another person's identity to pass himself off as another person and the security number does not possess the lawful authority to authorize other persons to represent that number as their own in order to commit other crimes so the eighth circuit is my right that has to be too getting the money for himself or herself if you use if you use the identity with or without permission to commit to to use that person's identity to to for a criminal that's not law there's no lawful authority for that well and that you're adopting the government's definition of not quite that the government the government would just do it more with in mind when that in reading return it quotes a six circuit cases from two thousand and ten quote the defendant's use of any social security number including his own to submit fraud credit applications must be without lawful authority is obvious well in other words it doesn't say fraudulent credit application credit that the defendant wants it's a fraudulent that credit application  for some purpose off it may be for the perks for that for the person whose identity is being assume right and if an addict if the person is identified identifiers are being assumed i one hundred percent agree that is without lawful authority the standard that i'm asking the court to adopt here is a separation standard a means of identification identify somebody it is sacred to that person when someone has wrongfully acquired from the treasury and you and i then split the we get twenty five percent you're saying that's not aggravated identity theft no i'm saying it could be did did you steal cars did no no you know you were not you and i conspired to do to fraudulently use your social security number to get a to fraudulently obtained a tax benefit for a third party who then pages for that right and if there wasn't a if there wasn't a theft that occurred in order to get that held is does not defeat the the government's case heins is in the context of impersonating someone else consent does not matter if you give somebody else permission in my hypothetical obviously the statue fits the crime so to speak well in the be clear i'm asking for a limited meaning of use without lawful authority where the government's asking for a broader meaning now if i take it back to your hypothetical your hypothetical involves using a means of on that tax return is identifying exactly who that person is there is no separating that individual from their means of identification the rule that i'm asking the court to adopt which is supported by the plain text that i'll get into in the legislative history that i'll get into is when without lawful authority means that that person is being separated from their identity mr get was was a tax preparer he prepared tax returns they claimed false dependents that inflated tax payers returned similar to the hypothetical the judge locum just described the dependents were not false because they were mis identified the dependents were false because the tax payers were not allowed to claim them on their return does your identity include relationship no absolutely not because of this cash when i think identity i think husband grandfather etc etc my identity includes relationships so tell me where that's not because congress said it wasn't means of identification section ten twenty eight a describes means of identification in the press in the predecessor section and twenty means of identification is social security numbers driver's license numbers names signatures it is not relationships i want hundred percent agree that the relationship about the word used with it well used has a specific meaning you can go to previous supreme court cases the defined bailey for example it's not possession is not transfer is to actively employed you have to you have to define use in conjunction with the statute which is in relation to a means of identification what is means by dedication it's an added identity it's your identity it is not your relationship and mr gatt was misrepresented the relationship of these dependents to the identity and let me tell you why the government quotes you to adopt a definition of use without lawful authority as for and we go purpose ok in the common understanding sure that makes sense and that's why you have circuits that have basically adopted it that's why the government advocated that when they charged this case by they tried it on that case why there are going on but that cannot be the case for two simple reasons number one the government's definition renders use without lawful authority completely unnecessary in the statute aggravated identity theft can only be committed if the use of the means of identification is  because it's simply the same element then there's two separate elements use without lawful authority you starting in relation to a numerator valley they have to be separate the second reason the governments definition and i found the problem as you can have the felony without the use of a of the of an identify identity then it's just fraud if you will if you would have the same fraud with with the use of the perpetrated with the assistance or by me by reason of the use of an identity that's that's in the that's an additional element absolutely that is use during and in relation to an enumerated fell not question it was used here during in relation to the tax for all i agree the government agrees nobody disagrees with that they met that element that is an element of this event that they met it what they did not meet and what the right but congress can't be redundant because the courts say we're not going to read statutes that way and and congress has to speak in clear terms then being redundant the second reason  i'm not sure any dream court justices ever gone that far well justice course which the eighth circuit representative just said this year that vague laws invite arbitrary power that's exactly what i'm saying here this is unconstitutional baby if if circuits are split over it if it makes a difference that miss brewer and i are arguing about it that doesn't mean clearly doesn't mean that it's a big was but if we have a certain split over this if if if your honour's are still at a loss as to what this means that's pretty powerful evidence that this is ambiguous now i've already got on my ten minutes but i want to make one more point the last case talked about one twenty four c i don't think it was involved to a great degree but i  t salivate in back there when i heard that because nine twenty four c criminalizes the use or carrying of a firearm during and in relation to a crime of violence or a drug trafficking crime congress said in that statute if you use a firearm during a relation to a crime of violence or drug trafficking crime you're guilty period in this statute they said you have to use a means by dedication during and in relation to an enumerated felony and without lawful authority and this court has to determine what without lawful authority means you are as i'd like to reserve the rest of my time and i don't think it's i don't think it's redundant menu you commit the use you use a social security number on  fraudulent tax return but it's set but but you you report accurately and honestly the the social security number whether it's yours your wives or or your clients and you because you're a tax preparer on the other hand if you use somebody else's social security number in order to perpetrate the fraud that's a different one than one one is using with lawful one is using the id with lawful authority the others not well i would disagree with you there i don't disagree that it's different but again the standard that i'm advocating for that i think is clear if we stick to the tax is that you have to separate the person from the identity and that can only occur if there is theft or if there's assumption and in your hypothetical if there wasn't proven or if there was an assumption proven and it's not aggravated identity theft in this case the government would not present any evidence that these means by that occasions were stolen in the past or during the commission of the offen brown good morning may it please the court that this court should find consistent with its own holdings and that of nearly every other circuit to have dress this issue that without lawful authority doesn't compas the use of a means of identification for an unlawful purpose and that even if the court today is not does not want to go to go that far even under mr got was more restrictive definition his conduct does meet the  pointed out that court in its holding relied on the sixth circuit case and mobley where that defendant used his own social security number to submit fault credit applications and they found that that was aggravated identity that circuit although that issue wasn't in front of the court at that time that dealt with using names and dates of birth of children in order to submit false medicaid claims and there was no question in that case that that would apply as aggravated identity if you just say it's any illegal or improper purpose is what without lawful authority means is not just redundant with during in relation to a felony turnout's not it's not because during their relation to a proposed a good test i understand you are i think that one way to to distinguish those those parts of the statute is looking at how they stand with i want to i want to an example of a situation where the then let's say you're using someone's name and you're just putting someone's name on a on a form there is a case about church officers and if you're putting the name on the form to say that these officers have given me authority to take an that case i believe that that was more incidental to the fraud so one way to look at it is you the use of their means of identification further or facilitate the  ball do it in a sense it's not just any time a name or a date of birth is used and if we look at this case using these children's names and social security numbers which also i'm in place and so you have to have a real name on i know that it screws up my returns annually so it says that you have to have a real social security number and it will be bounced back if it's not a true social security number so he had to the fact that flowed through from having namespace you know in this in this case the government's position is you can't have a tax fraud without an aggravated identity theft where you're when you're just think about that an answer the question don't go i want to hear a speech the way i just heard you describe the tax tax regime and you heard your definition of when it's not it when it's not  incidental but it's integral tells me that the governments but the partment of justice position is that every tax fraud of this of this nature is that aggravated with an identity theft because you the return would not be accepted without the social security number whether it's yours your spouses your kids or your neighbors before first of all you are title twenty six is actually not had no one of the  wire fraud we can get get around your problem which is which is tax fraud can only be committed by use in a a fraudulent tax return must report a real person social security number certainly the intentional failure to file a return or a lot of there is sure there is a multitude of ways you can differ all of the treasury money fraudulent tax return is a specific form of tax fraud but any fraudulent themselves are for all these are not nieces and nephews of the taxpayer were at whereas if it if what we're looking at is just the tax payers name and social security number that is that that's that's a given otherwise it would be tax fraud i mean it does whether whether it whether it's a whether it's a dependent who's just reach majority or it's a it's of the kind of the kind of non dependent that we have here you have to have you have to have that for a for this kind of tax fraud that is a fraudulent claim of a dependency exemption there has to be there has to the person i mean there has to be a real social security number used with a misrepresentation of something and the government's position as i hear you argue every time every time that's done it's aggravated government requires in which the social security number must be reported and so you have equated you have made every fraud against the united states in which a social security number must be used on the form that we're being left rudderless in the middle well let me ask you in in the middle question the record is clear that all these alleged dependents were all minors right at the time of the tax return so they couldn't even children that were mr got was his own so even if he could somehow are you have consented to having his children on behalf of his children to have them used two of those children were that of the count two counts were not his own children and showed your arse judge look i was dancing over there in my chair with your question see you you've hit it right on the head every friday when tax return is aggravated identity theft of the government and that is a cardinal mistake here and that's what i've raised through this even evolves children are children different it doesn't matter if they're children and now it does too because it says lawful authority that's what parenting is all about so thory that's what all the states say statute consider things about us about lawful authority well let's break lawful authority down the sixth circuit has done so in lumbar the fifth circuit has done so in the mood i've done so in my briefs we look at black's law dictionary to the dictionary definitions of without lawful authority and so you heard a common law common law trumps black's law dictionary going well we have to be informed as to what this means i would agree with you let's use the common law let's use what common sense would tell us use without lawful authority means just as used between us but you have a specific statute here unlike section one twenty four c that uses the phrase use without lawful authority as a separate element than use during in relation to a numerated felony so we know they can't be the same we know they have to be different and if you look at the dictionary definition of use without lawful authority you come to a definition that i stated in my brief of not having permission to a illegally on another's behalf if you look at it on another's behalf what is on another to be happening it means in the name of someone if you look at the statute what does it address and means of identification what is the purpose of the means by dedication to identify you you look at the statute in that context it prohibits the use of a means of identification from being used in the name of someone else when there's a separation between that person in their identity as i've argued and that can occur when or when there's assumption so if you have a fragile tax return situation like we have here if these dependents if their identities were stolen it would be aggravated identity that consent doesn't matter the kids could have consented and given them you know they can't common law go ahead radisson and in a tax return situation you can't really assume another's identity so that's not really part of the equation here part or part of the equation is the the government could have tried to have proven it wasn't part of the facts here but in other tax fraud cases they could show that identities were stolen but happens all the time it happens in the circuits with cases the tax fraud filings are in a year when your time is up and i