is according to my research which is pretty pretty exhaustive one of only two statutes that require a mandatory consecutive bent and the other one aggravated identity theft into this small group of two congress of the obviously thought that there was a problem but the problem they saw was not the use of another identification in a typical and i don't mean to diminish anything a typical in the realm of criminal conduct in a typical case where another person is identification is part of the fact that where during you know devices for everything are everywhere and websites are being hacked where people's identities are stolen and money's stolen from them and destroying people's credit ratings and exposing them professionals to submit false medicare claims for patients and line their pockets but they're not passing themselves off as the patient a circuit looked at whether  the identification information or means of identification was just incidental to the crime and they gave business xampp on account of the supplying the fines identification information in connection with false facts that that would not be covered by the steps and then that doesn't circuit to focus the seven circuit focus on the other person whether there was consent by the other for his for his own personal gain under each and every one of the theories you have against that to me to use another person's identification ability to work and there is a section to be one point six which says that when a defendant is also being prosecuted the underlying crime there should be no enhancement for the transfer of possession commission of a crime to be one point six says no that doesn't apply and there simply no i i know the government argues that victims there are different than documents but in this case the applications the immigration applications are the means of identification which are the subject of one thousand and twenty eight and they are the documents referred to in the immigration fraud  one hundred or more applications but testimony from the only person who would have knowledge was was that he didn't keep track but it was probably over one hundred with you know it's not good and then there was that testimony of the immigration officials who said he looked at eight hundred and five thousand eight hundred of them were fraudulent because they can repeated story well there's not a lot of margin margin for error and i think it's fair to assume that any story that was my colleagues now and jeff where the judge no one has any questions for you on either the threshold issue or the subject of the appeal just on the bail motion i didn't quite understand you said counsel still a record defending the defendant thank you ms wolf just so i understand trying better to understand your statutory argument just confirm for me at least or tell me where i am wrong that she did not use the as a matter of law she could not have used or did not use or the government did not prove she used these  identifications because i was and then one if you could fill in after that or tell me i am way off base because why well because she was using these identifications in order to obtain those clients something for which she got paid well it was her getting pay i mean when you look at the papers where the court  yes and i will try to do that because she didn't your contention is on her contention is that  wasn't this the use of those identifications for her own remuneration because she provided using the identification she provided her clients a service for which she got that would if that were true that would result in that in the kind of overbred the number of the court talk about that that would encompass eight every count who that's what happened but you're saying that's not covered what but otherwise it's ok in your view under the statute to take somebody is identification let's say this is hypothetical so don't tell me that's not the fact let's say take a passport submit that along with an application and which is false in order to obtain something from the government and that's not a use covered by the statute is your contention right and then there are i mean it's a moving to something a little different but related there is you know i think piers which is the one case which has  there was not correct and the government do that you know the government the government did not these i'm not even sure it would be an issue of consent there might not even be another person involved when the two individuals are being cared for each other and these and each of each of the clients who testified at the trial were people who were not eligible for asylum they and they and they knew they were eligible for asylum they had contacted her couple of them of two of them had come up convictions in both the u s and abroad one of them have to fight that he didn't care what was in the application he just wanted another six months in the united states and this time he was engaged in t n gaming so you know these you know these individuals consented they were consenting party banks will i'm sure hear from the government on that point so that's all i have thank you very much  the court my name is robert feldman i'm going to fifteen united states attorney in the th district of new york i represent united states on this appeal and in the district court as came out in the questioning the defendant has two fatal plautus with her theories regarding count three and there are factual flaws that cannot be overcome by setting a case or distinguishing a precedent the st is that at least three of the cooperating witnesses who testified at trial who were prior apply and did not consent sweden teach you and that's supplemental appendix thirty eight cars and cars more supplemental appendix forty nine to fifty and choose supplemental supplement to appendix page fourteen the nd fatal flaw is that she ignores the her briefing and argument today that the statute also a reasonable doubt the jury was instructed on the theories of transfer and possession in one thousand and twenty dollars a day and there's no dispute we would say it's not reasonably subject to dispute that the defendant was guilty under both of those theories as well as the use dearie turning to the issue of of use for a moment there is no incidental or non incidental test but even if the court were to say ok let's assume that the use of a means of identification and the only thing that happened here was use  never knew until after it was filed that an asylum application going to be filed on his behalf did you want to have some kind of status yet if you ever communicated that that was to me true you know he's never spoken with her  never met her he wasn't even in the united states which of course is a necessary and mandatory prerequisite to applying for asylum she and her colleagues at her direction forged the other clients never knew what type of real relief the defendant was seeking on their behalf didn't know what representations she was making even if they were ok with the general proposition that she was missing misrepresentation on their behalf or helping them commit a fraud they were never consulted about whether the narrow question here whether the signatures were permitted to be used on their behalf so if we're looking at the narrow question that the defendant has focused on here which is is brookline or at least some of her clients in the trial proof consent to the use of their means of identification which there are many means of identification here the defendant has chosen to focus on the signatures but there's also birthdate there's passport numbers or salient numbers and all of that was before the jury the answer with respect to consent is there is no basis in the record that these that sentencing the court was correct that mr meacher never filed an application for bail pending appeal with the district court even though the sentencing occurred slightly over a year ago not something she ever pursued the trial counsel or  e counsel but judge kaplan in remanding the defendant on the very day that the jury convicted her while we were still in the courtroom found then and the subsequent hearing the following week that the defendant posed a significant risk  for a variety of factors that i think it's a court wish to go into it now but the government has serious concerns in that regard and even on top of our view that repeal is not likely to succeed on the merits and that she has a thirty six month sent before she begin to serve the one thousand and twenty eight a sentence that needs to be expires the government does have serious concerns about her risk of flight unless the court has misrepresentations to the department of homeland security and the department of justice right that's correct on count two says they made false statements to the department of homeland security two alternative theories that captured centrally the same conduct and there is no penalty in the guideline calculation for the defendant by being convicted of both but because the district court found will be correctly make an effort to pull up our our briefing it's not an issue that had been raised since i pushed probably thinking about a year and a half ago so i apologize for not having that happen much to police and i understand it isn't raised and it doesn't affect the sentence but conceivably if somebody is in prison and multiple counts have some bearing and i'm just wondering why the government would take a clear cut him outside and actually during the interview to a lawyer to the asylum officer and we wanted to make sure that those statements oral statements would be captured by the count and i don't recall the moment again your honor i'm i'm i haven't considered this question for about a year and a half but that may have been one of our consideration ok if if your honor is interested in it just in case your honour's interested after the argument in that things are now moving on to count three which is what added the mandatory two years aggravated identity is that what precisely was stolen by the design your honor aggravated identity as any theft  accord d to that crime i think if if one were to be captured and more accurately it would be used presenting or transfer the means of identification of another person without lawful authority that's just a mouthful and i think that perhaps why congress tried to use something shorter aggravated identity theft that term doesn't necessarily capture the ball scope of the conduct in the statute and the th circuit  congress d and the examples of the situations it was meant to cover which are not just quote unquote best in the traditional sense all right as we explained in ariz let's face twenty both theft and fraud all right so let's go beyond the requirements and then there was there was the taking of something or the use of something is that what you're saying yes your honor the defendant here possess and transfer although of course we only need proof one we actually proved all three use the death and transferred means of identification of another person here or at least three other people  that were the means of identification whose views fired signing the error is there are several means of identification that were put before the jury the forged signatures i think both sides so you're on the right there's nothing in the statute about taking but they did recei risk i don't know to iran or all yes your honor if you're asking how the defendant obtained the date of birth the answer is they received it from either the client or someone aggravated identity theft to sign to forge their signature either with or without their permission yes that is your honest question so yes like we know because the requirement in the statute is that the a receipt if you put a signature i'm not sure i'm not the other way if they had just signed if they had prepared a truthful application and and put the client to signature of the applicant and then the attorney underneath that have to certify with their own signature under oath that the client signed in their presence in the united states so it's a little self find it i think it's fair to consider that a criminal violation that clearly in addition to get two more years of sentencing is that a situation where i'm not sure if i understand your honour's question you're the defendant met all the elements of  we established it beyond a reasonable doubt to the jury the jury found that that was the case and there is no case that we are aware of including spears that would  if the circuit followed it with a lead to the defendant being acquitted on that counts because there was no consent and in addition to the use there was possession in transfer with the just which the defendant doesn't even addressed and doesn't forged signature among other types of means of identification remember there's as has been mentioned date the birth passport numbers alien numbers in some cases social security numbers there's a number of different means of identification but including the forged signatures that the defendant directed her employees to forge on the application employees in some circumstances but mailed them but in many circumstances including those involving some of the cooperating when this is it trial she physically took those applications from her employees and filed them in person in open in open immigration court with a you know certification on the bottom in her signature under oath to say look i want asylum and he says i do that and he files a whole lot of asylum applications and there falls but they go through and the jury believes them and they and twenty a day that the other person the other real person whose identity is being used possessed or transfer categorized as a quote unquote victim whatever that might mean we don't makes it harder for the government to detect the fraud and here that was actually the case where the defendant was filing dozens and dozens of nearly identical applications and members of the immigration office members of the immigration bar and the court were starting to notice that there were very similar application and the st suspects were actually the quite not the lawyers because everyone assumes a lawyer is not going to sign under that's the reference of page fourteen of your supplemental page fourteen of the supplemental ten that says when that same individual discusses the fact that he never gave anyone consent for his signature but that will be due to the part of the appendix  with his testimony or i did one last thing did the jury charge in any way or implied to the jury in order to convict on counts three you would have to find that at least one person never knew this was never asked for an asylum application no i don't believe so your honor and i don't think either even the defendant has argued that they would have to not be aware of or not know of the potential use of form or possession or transfer of their means of identification and as far as i'm aware there's no case that would support that proposition so the neither party instruction that would have stepped forth that i don't believe the instruction did and just to be sure i understood your previous answer a few minutes ago you would say there's a  the asylum application was crew as to its content but the signature of the alien was for so under that circumstance i think your honor and i agreed that there would be a one thousand five hundred and forty six dollars violation because the application is not true because a very important part of the application is that the defendant beside the defendant the client actually reviewed the application attested to the truth of its content and signed in person in the presence of the defendant in the united states all those things are very important for reasons that are set for what you're saying in the testimony ok but you're saying if the application is substance in other words it's accounts of what happened if they were all true but the signature of the applicant were false that would not only be even if your honor thought well that's a closer case this is certainly not that ok thank you even if even if your honor were to adopt the defense's legal buz wholesale the court would still be required to those those acts are folded into you and so i don't think there is any any law on that as of yet but it's hard to imagine a scenario where someone who get the information from their clients then you know does something that they're couldn't get an any any service provider so it was become a natural wanted to say there that you didn't find the specific plea which of these clients were the basis for the conviction which are all or some were the basis for a conviction on the th count and under those circumstances if the court rules were to find that the evidence with respect to any one of them is insufficient then it would have to for would have to undertake and finally with respect to the the bail issue my understanding and i wasn't there that judge kaplan or remanded our client