Defense motion to adjourn trial pending Dubin (denied) — U.S. v. Martinez (S.D.N.Y. No. 1:22-cr-00251)

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U.S. District Court for the Southern District of New York · No. 1:22-cr-00251-LJL · Doc. 34 · 2022-12-13 · Docket on CourtListener

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NEW YORK    WASHINGTON    HOUSTON    PALO ALTO    SAN FRANCISCO    CHICAGO    PARIS    LONDON    FRANKFURT    BRUSSELS    MILAN    ROME 
December 2, 2022 
VIA ECF 
The Honorable Lewis J. Liman 
United States District Court 
Southern District of New York 
500 Pearl Street 
New York, NY 10007 
Re: United States v. Rafael Martinez, 22-CR-251 (LJL) 
Dear Judge Liman: 
 
We represent Rafael Martinez in the above captioned matter.  Mr. Martinez moves for the 
Court to adjourn trial pending the outcome of the United States Supreme Court’s decision in Dubin 
v. United States, 27 F.4th 1021 (5th Cir. 2022) (en banc), cert granted, 2022 WL 16844784 (U.S.
Nov. 10, 2022) (No. 22-10), or in the alternative, to dismiss Count Five of the Indictment, which
charges Mr. Martinez with aggravated identity theft.  Mr. Martinez’s trial is currently set for May
1, 2023.  No prior motions for adjournment have been made. We have asked the Government for
their position on this motion, but they have not yet advised us of their response.
The Supreme Court granted certiorari in Dubin on November 10, 2022.  In Dubin, the 
Supreme Court will determine the scope of the aggravated identify theft statute, 18 U.S.C. §1028A. 
The statute provides that “[w]hoever, during and in relation to any” of a number of enumerated 
felony violations, “knowingly transfers, possesses, or uses, without lawful authority, a means of 
identification of another person” shall receive a mandatory two-year prison sentence to run 
consecutively to any other term of imprisonment.  18 U.S.C. §1028A(a)(1).  Specifically, the 
Supreme Court will determine whether a person commits aggravated identity theft any time he 
mentions or otherwise recites someone else’s name while committing a predicate offense.  This is 
a question that has deeply divided the Courts of Appeals.  Compare United States v. Dubin, 27 
F.4th 1021 (5th Cir. 2022) (en banc) (affirming panel decision holding that §1028A is violated any
time another person’s identity is used in the commission of predicate offense) and United States
v. Abdelshafi, 592 F.3d 602, 609 (4th Cir. 2010) (same) with United States v. Hong, 938 F.3d 1040,
1041 (9th Cir. 2019) (reversing aggravated identity theft conviction where defendants made
misrepresentations to Medicare about services provided to patients, because defendants never
“attempted to pass themselves off as the patients”); United States v. Gatwas, 910 F.3d 362, 368
(8th Cir. 2018) (holding that defendant could not be “convicted of aggravated identity theft simply
because he used a client’s name and social security number in submitting a tax return that
fraudulently under-reported income or claimed bogus deductions”); United States v. Miller, 734
F.3d 530, 542 (6th Cir. 2013) (holding that a defendant did not “use” a means of identification
within §1028A by signing a document in his own name which falsely stated that his business
partners authorized him to apply for a loan).
Case 1:22-cr-00251-LJL   Document 34   Filed 12/02/22   Page 1 of 2
REQUEST DENIED.
The motion to adjourn the trial is denied.
12/13/2022
Case 1:22-cr-00251-LJL   Document 39   Filed 12/13/22   Page 1 of 2

 
- 2 - 
 
 The Supreme Court’s decision in Dubin can be expected to alter the definition of what a 
jury must find to determine that a defendant has used a means of identification, which may 
materially impact how this Court will instruct the jury on the law pertaining to Count Five.  
Depending on Dubin’s resolution, it may mandate Count Five’s dismissal.  A brief adjournment 
while Dubin is pending will ensure that the jury is accurately instructed and will promote trial 
efficiency by avoiding the relitigation of evidentiary issues that may be effected by how the 
Supreme Court defines the scope of §1028A.  Moreover, because the Supreme Court’s term ends 
in June, any delay in proceedings will be minimal.  Mr. Martinez therefore respectfully requests 
that trial be adjourned until the Supreme Court issues a decision in Dubin, or in the alternative, 
requests that Count Five of the Indictment be dismissed on the grounds that it does not state a 
violation of Section 1028A. 
 
Sincerely, 
WILLKIE FARR & GALLAGHER LLP 
 
 
 
/s/ Michael S. Schachter  
 
 
 
 
 
Michael S. Schachter  
 
 
 
 
 
Randall W. Jackson  
 
 
 
 
 
 
MORVILLO ABRAMOWITZ GRAND IASON & ANELLO PC  
 
Elkan Abramowitz 
Telemachus Kasulis 
 
Counsel for Rafael Martinez  
 
cc: AUSA Micah Fergenson (via ECF) 
Case 1:22-cr-00251-LJL   Document 34   Filed 12/02/22   Page 2 of 2
Case 1:22-cr-00251-LJL   Document 39   Filed 12/13/22   Page 2 of 2

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