Memo Endorsement on Letter Motion to Adjourn Trial (Doc. 35) — United States v. Rafael Martinez (S.D.N.Y.)
- Issuer
- United States District Court
- Document type
- Indictment
- Date
- 2022-12-02
- Case
- United States v. Rafael Martinez, 22-CR-251 (LJL)
Summary
A defense letter motion dated December 2, 2022 to Judge Lewis J. Liman of the U.S. District Court for the Southern District of New York in United States v. Rafael Martinez, 22-CR-251 (LJL), bearing a memo endorsement dated December 7, 2022. Counsel for Martinez ask the Court to adjourn the trial, set for May 1, 2023, pending the Supreme Court's decision in Dubin v. United States, or alternatively to dismiss Count Five, which charges aggravated identity theft under 18 U.S.C. §1028A. The letter states that certiorari was granted in Dubin on November 10, 2022 and cites circuit decisions it describes as divided on the statute's scope. The endorsement directs the Government to respond to the adjournment request by the end of day, December 7, 2022.
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787 Seventh Avenue
New York, NY 10019-6099
Tel: 212 728 8000
Fax: 212 728 8111
MEMO ENDORSEMENT.
December 2, 2022 The Government is directed to respond to the
request for an adjournment of trial to July by the end
VIA ECF of day today, December 7, 2022.
The Honorable Lewis J. Liman
12/7/2022
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).
N EW Y ORK W ASHINGTON H OUSTON P ALO A LTO S AN F RANCISCO C HICAGO P ARIS L ONDON F RANKFURT B RUSSELS M ILAN R OME
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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)
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