morning your honor may i reserve three minutes for rebuttal yes matthew nelson on behalf of the defendant sandra white may it please the court i will primarily address this morning the aggravated identity theft issue this case presents the issue of what constitutes use of another's means of identification under the aggravated identity theft statute specifically does the defendant use someone else's identity when she lies about her client's occupation the court should answer this question no because such a lie does not use someone else's identity and that is true whether the lie is told at the outset or it is told in documentation after the fact  any reference to another's name social security number and number other identifying information instead this court looks to whether there has in fact been some sort of misappropriation i suppose i'll characterize it as of the person's identity and so for example in this court's decision in miller there was no identity theft because the defendant lied about what other people had done in med lock the there was no identity theft because the defendant  lied about the services that were provided in the customer's identities were not key to how and why the customers were transported and in lombard case it doesn't specifically address the issue of use but which was cited in the supplemental authority letter that was recently submitted by the governments the got the defendant lied about who he was and in fact that's a classic case of aggravated identity theft but the issue of course there is this court the sting wisht in matlock was a lumbar it is a case about the lawful authority aspect of the statute not the use of part of the statute why isn't it similar to create an id saying that somebody is in the military when the person isn't in the military and then to use that i d in order to gain a benefit by de fraud ing an airline why isn't it similar to whatever you were relying on to say that this is not use why is that a similar activity in other words why isn't this activity within the statute seems to me that you could make the argument that it is and certainly the government has we believe that it is not because here well first let me start with the actual issue with regard to the identification documents the identification documents of the fact that they that she that my client made false military identification documents as opposed to simply sent the which she did initially which was to send their names in and so that they were in the military under this statute makes no difference the previous statute under ten twenty eight the fact of making a false identification is significant but under this statute specifically section eight subsection a one of the statute the act of making the identification the false identification  irrelevant it doesn't matter whether it's a false identification document or just simply writing the lie down in the course of sending the communication issue here but with regard to why it is that this is not u of a person's identity is because a lie about someone's occupation where you're seeking airfare for someone who's actually going to travel and actually going to pay for the airfare but the lie about their occupation what they do is not any different than the lie that was told in miller with regard to what other people had done whether this yes your honor i'm troubled you say misuse of it is not a it is not a use of the identification for the purposes of the aggravated identity theft statute where that person is actually a member actually going to go ahead and be traveling it's not as and in fact that's what my client got sixteen got a seventy month sentence for for committing fraud but with regard to add the additional tack on an additional twenty four months for aggravated identity theft this is not aggravated identity theft because it does not involve the use of someone's identity a person's octave in the fact that the person was traveling or the person was traveling and not as a member of the military in the same way that if someone said that i was i was a judge i wouldn't be when i get back on the plane today to fly back to grand rapids i wouldn't be flying as a judge i would be flying as a passenger just like any other person they ask for a discount because you are tired of the discount because you were a judge but you wouldn't change the nature of what i was actually doing to you judge more to plow back to well if i was using judge morse identity that would be an issue but if i'm to but if someone had my travel agent had represented to the to the airline that i was a judge i would be travelling is judge nelson i guess the judge nelson but if your travel agency was charged with occupation is not a myth my identity ation is it your honor i submit that it is not it is not something that's inherent i'm no more it's no more so than saying that for example if a parents misrepresents to a particular school that their child is a baseball card collector because they know that the admissions person likes people who collect baseball cards that the it doesn't change the guess my answer is occupation is not an inherent part of the who a person is like for example there is if you're trying to get a military discount your honor i would just i would say there i agree my client committed fraud but it wasn't aggravated identity theft because it's not use under the statute in the same way that in the particular statute the earth the particular issue with regard to medlock they there were people who were medicare beneficiaries the only way that our medicare and medicaid beneficiaries i think the only way that the defendant medline the medlock defendants could obtain reimbursement from the government was if those people were in fact medicare beneficiaries they were since the claims were submitted on behalf of those individuals to get the medicare payments for services that were not actually rendered but the only way the claims are could have been submitted is if the person had been a medicare beneficiary in the first place certainly make it easier i probably would have probably would have prevailed in front of judge maloney i think it's i think it's a slight step further than the block in terms of med locking miller lock is what the person the defendants themselves didn't do  miller is what the what they say somebody else did and here is what we're saying here is what my client said that her clients do for a living and so i think that it's not it's not it's not  hundred percent match up but i would say it is very very close and that the alternative i submit is in a situation for example where you have a sophisticated criminal organization where someone is actually diligent about paying taxes and the accountants submit it's the tax form at the bottom where you have to put your occupation rights that the person there is a pharmacist to demonstrate the legitimate source of the income as opposed to being an illegal drug dealer of the of the occupation of the person but i don't think we would say that was aggravated identity theft that congress was trying to address in this statute and i would direct this court's attention to the supreme court's analysis in florida's figaro with it because i think it is a very helpful discussion of what congress is actual intended result was and it's not this it's not to give my client who committed fraud involving several hundred thousand dollars in ninety four months statute or nicias me a ninety four month sentence when in the same district prosecuted by the same u s attorney's office the james horton who is in the cyber co stolen hundred million dollars it's ninety eight months because he doesn't have this twenty four month aggravated identity theft and hanson that was was the sentence totally within the statutory range supplemental follow up documentation it's the same why the law is with regard to whether michael are whether these people their occupation was a service members and they weren't and she said they were and we believe that under the minute please the court is a haven frankly united states judge moore the answer to your question is that the statutory ceiling for the wire fraud legend count one was two hundred forty months or twenty years because the indictment did not allege that to the effect that a financial institution so it was a baseline wire fraud with a twenty year ceiling ms wise position that this was simply a misrepresentation of the occupation of her clients that doesn't stand up in the face of the record because as is alleged in count two she used the noted means of identification that is her client's names to manufacture fake if i had cards armed forces identification cards to manufacture fake cards and then she sent those on to the travel agencies and the airlines trying to avoid having to repay wealth that she had stolen based upon misrepresentation about what they did when she first book those tickets the post she had not used the means of identification of these fake erm services cards that it had only been in the block i would she have been able to be prosecuted under this particular statute to ten twenty eight  i don't think so your honor and that has to do with the nature of what an identification card is what an eighth card is that is a personal identification document that service members carry that identifies them not just who they are by name but what they are by status and for the purposes of their identification as a member of the u s armed forces those are two things to be combined so if when i was in the marine corps i wasn't just hagen frank i was captain haig and frank as far as the marine corps was concerned so it's the nature of taking their names putting them in a falsely manufactured document a personal identification document and then sending that on the airlines because sending it on to the airlines and the travel agencies she is necessarily implicitly representing that she's acting on their behalf because if those documents were genuine they would have had to have come from the travelers been given to her in order for her to pass them on to the airlines and the travel agencies in order to avoid those businesses coming after either her or her clients the clients know that they were being portrayed as members of the  were they were clueless all they knew was that sandy white could get them better rates than anybody else they went to and she got those rates by lying about her status in addition to all a bunch of other patterns of involving discount certificates and doctors notes and things like that but your honor you hit it on the head it's not just lying about listen this person is in the military which would be functionally the same as the lyon miller where he said look these three guys gave me authority to come in here as myself and had on behalf of the fellowship i'm not acting on their behalf they just said that i could come in here as me and act on behalf of the fellowship well that's functionally the same thing as sandy calling up the airlines saying hey i've got these travelers they're military can i get the really good military rate it changes when she puts those means of identification into an identification document and then sends that on as part and parcel of what is a continuing fraud that went on for a dozen years  that's similar to what was done and medlock but i would describe miller as invoking the names of these people saying they authorized me to come in here and act on behalf of the fellowship i think that's invoking the names i think medlock is citing names because all that was said hey i these people here they rode my ambulance on stretchers i'm not acting on their behalf i'm just saying that they rode in my ambulance on stretchers and here are their names so he's just citing their names this  qualitatively different because in addition to putting them into personal identification documents which is a significant thing as i said because it's genuine it has to have come if it's my if it card it has to have come from me and if i give it it's any white sends it on to the airlines in the travel agencies she is implicitly representing that she is acting on their behalf because they're going to be coming after somebody to get that money back and it's either going to be or they can be looking at the traveler either way the travel or the is in a position of at least being under a cloud of suspicion because these documents are received by the travel agencies in the airlines and admittedly they were really silly i mean they were not very good counterfeit aphids however when they are received and they are now suspect and the airlines check with i believe his army criminal to run the names and it comes back that none of these people have ever served in the u s armed forces there is a cloud of suspicion now over the travel agency that is overseas me sandy white and  the travelers themselves in the travelers be held liable because they both based on the fact that they did not know that they were being called military no you are no i don't not criminally and not administratively not criminally because obviously we would have any provable intent and as an aside a police mention in the p s r that investigators checked with a couple of dozen other passengers the most frequent flyers if you will to ask them if they had any idea that they were getting military rates and they all said no so no they're not going to be liable and then on the criminal side and then on the administrative side with the airlines do if they come after when they realize that they've been brought in and they calculate the loss and the issue these administrative debit or agency debit memos a t m those go to the host agency and it's on the host agency to either dispute the a t m or to pay them in a case such as this where the host agency where the fares were sold by a subcontractor agent like sandy why then the host agency ultimately is liable to the airlines if they want to keep selling that airline inventory and they want to keep their arc accreditation but then the host agency can turn around based upon whatever business relationship they have with the subagent and go to the sub agency we just pay love ponza two hundred thousand dollars you better come up with two hundred thousand dollars why isn't this just piling on if she's already been admitted to be criminally responsible into the fraud statute why why isn't this just because there's a separate interest i think that ten twenty eight big recognize and that is and preserving the integrity of personally identifiable information that means of identification this is the digital age a month doesn't go by where we don't see in the news about some big hack of p that p i r is highly monotype minded monetise of all that and that's a word is valuable has economic value and it can be exploited and could be exploited in ways that harms people financially it can harm them in terms of their reputations and all those even though these passengers were never going to be on the hook financially it's reasonable to forsee that their reputations were potentially on the line i mean for instance people who have done absolutely nothing wrong they just want to get the best for they could here's the secret knocking on their door asking questions about hey do you know any do you realize that your your name is part of a criminal investigation so i don't think it's piling on because of the separate interest that is protected by the aggregate identity theft statute and it basically recognizes the fact that look there's a lots of ways to steal money and there's lots of ways to steal money that will get you bring you within the reach of title eighteen but if one of the ways you're stealing money that brings you then the reach of title eighteen and vault other people's personal identifiable information then that's going to raise the stakes right but they but white used the personally identifiable information in the original a is saying oh here's here's the verification which is this you know made up piece of plastic or whatever that that shows that verifies what she already said course is a lie to the problem for her is that in doing that she crossed the line that this court said and miller set and miller and that it stated medlock this that rationale remains persuasive she crossed the line of using the p i in a way that involved her purporting to act on behalf of the people that that p i relates to that's the difference she crossed the line when she manufactured those identification documents and then sent those purportedly genuine personal identification documents on to the host agencies and the airlines so the only she was acting she was purporting to act on their behalf before when she was lying about them being in the military but the difference is she's using a p r is what you're saying here well i think when she initially did it yes she was acting purporting to act on their behalf  she was doing something for them but she wasn't but she was saving the money she needed in an illegal way right she was it she had to be fried in the airlines yes or she was saving the money and she was getting her service fees and she was building and maintain this client base that she was making money to that's right i mean a lot of margin but the difference is that she was acting on there were half but when she sent those identification those fake identification documents and then she was purporting to act on their behalf because they did go to her and say get me a good fair and they don't they didn't know what magic she worked on the keyboard to get the good for all they knew is that she was a killer it didn't really the best rates anywhere so they didn't know about that but they did say get me the best airfare and she did it but when she takes that next big step the steps across the miller line of creating the fake document and sending it on then she is purporting to act on their behalf and they had no idea that she was doing this and but that's true before she used the fake documents she says i'm on the telephone to the airline i have john jones here and he's in the military what's the best fare you can give me and the airline says here it is it's really low right but then that starts the miller scenario just and the med locks on our i think of just lying about what other people have done or lying about what i did for other people or lying about in that case at that point in the scheme or lying about their status as members of the armed forces however once they fraud has been discovered and is now being pursued by the airlines and she creates those documents so is that the key that the documents are created after the fraud was discovered what if they'd been created at the time to facilitate the fraud i think it would be i think it would be the same result that we have in this case because then again it's not just telling a lie about what someone does it's producing a document that if you if it's genuine you are representing if you're the airlines and i'm sandy white and i give you a fake i d military i d for mr nelson then i'm representing to you that i'm acting on his behalf he gave me this fake id here it is give him this good rate i think that's a qualitative distinction from simply me telling you simply saying exactly the military just saying mr nelson's in the military give him the good rate that's that's a miller that's a medline lying about what people why it why isn't it just facilitating her proof cindy white's proof that this hypothetical client john jones is a member of the military well it is that but it's not just that and the reason it's not just that is because in miller this court said if you impersonate pass yourself off as which is the traditional sort of identity theft or act on behalf of if you use that means of identification to act on behalf of them then that makes out the office and it's really the same thing if if we take it out of this context and just consider traditional credit card fraud i get mr nelson's credit card number and i go online i start using it or i encode it on a piece of plastic and i go to myer and i start buying up gift cards i'm representing one of two things i'm representing that i am mr nelson or i'm representing that i'm acting on his behalf he said that you could use it i could use it there would be no question in anybody's mind that that conduct on my part with his credit card account number constituted aggregate aggravated identity theft if the wire from the interstate wire nexus so that would be using i means of identification under ten twenty eight it would it would not prosecute those cases a lot so the distinction here is it's not just lying about status it's that she took the extra step of creating the fake document and then sending it on and if that document were genuine it would have had to have come from the customer and the legislative the the harms the ten twenty eight are meant to address which includes reputational damage or alive made that this would be in lockstep with miller and bad luck is exactly the point i was trying to make before and that is and so them the question becomes does is the fact of making the identification cards somehow turn this into aggravated identity theft and i don't see any basis in the statute for saying that if you if you say on the one hand that someone is someone has the occupation of being in the service and you say that in a writing that is any different for the purposes of this statute then saying that along with a while affable picture of them with the service name connected with it but  language uses a means of identification does at least superficially seem to say using a credit card using a driver's license i'm not sure whether it has to be a fake one or one that you it's appropriate and that was the issue that this court addressed first in in miller and saying there are multiple interpretations here that are reasonably judge clay i think you were in both of these panels that the the the decision there said boy if you take the dictionary interpretation this is use but if you if you look at it in context and you look at it w the context of the other words in the statute in the seemingly general intent of the statute then it has seemingly should have a more limited reason and because of the rule of one of the we're then going to give it the more limited reasoning so i believe that's that's  circuit already that's why i think opposing counsel conceded that just the mere use of the name which is the identifying information here and then the lie about that that name isn't used for the purpose of the statute and furthermore i want to address this idea that the idea that this is about personally identifiable information and these people are under a cloud of suspicion in the supreme court in florida figure over it made very clear what's congress concern was here and it was the classic identity theft was about dumpster diving and data hacks and the like not about misrepresenting who someone who someone what someone's occupation is and it wasn't to protect them from the inconvenience and frankly it's a significant inconvenience of having to deal with law enforcement in the course of an investigation but it's also very clear here that these customers were not at personal financial risk here and i believe a brother counsel acknowledged that as well unless the court has further questions my time expired thank you both for your argument interesting case the case will be submitted with the court called the next case