Supplemental Letter on Trial Adjournment — United States v. Rafael Martinez, 22 Cr. 251 (LJL)
- Issuer
- Department of Justice
- Document type
- Motion
- Date
- 2022-12-12
- Case
- United States v. Rafael Martinez, 22 Cr. 251 (LJL)
Summary
A supplemental letter from the United States Attorney for the Southern District of New York to Judge Lewis J. Liman, dated and filed December 12, 2022 as Document 38 in United States v. Rafael Martinez, 22 Cr. 251 (LJL). The government opposes the defendant's request for a trial adjournment pending the Supreme Court case Dubin v. United States, No. 22-10, which concerns aggravated identity theft under 18 U.S.C. § 1028A. The letter argues that even under the narrower construction of Section 1028A the conduct charged would qualify, citing the Complaint's allegations about a Paycheck Protection Program loan application and IRS Forms 941 bearing a tax preparer's allegedly forged signature. It also argues that a jury instruction would suffice, that the evidence would be admissible on Counts Three and Four, and that the request to dismiss Count Five should be denied.
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Full text
Case 1:22-cr-00251-LJL Document 38 Filed 12/12/22 Page 1 of 3
U.S. Department of Justice
[Type text]
United States Attorney
Southern District of New York
The Silvio J. Mollo Building
One Saint Andrew’s Plaza
New York, New York 10007
December 12, 2022
BY ECF
The Honorable Lewis J. Liman
United States District Judge
Daniel Patrick Moynihan United States Courthouse
500 Pearl Street
New York, New York 10007
Re: United States v. Rafael Martinez, 22 Cr. 251 (LJL)
Dear Judge Liman:
The Government respectfully submits this supplemental letter to explain the grounds for
its opposition to the defendant’s request for a trial adjournment based on the pending Supreme
Court case Dubin v. United States, No. 22-10 (U.S.). (See Dkt. 35, 37). The Government opposes
an adjournment because the issues presented in Dubin, while interesting, are not applicable to the
facts of this case.
The defendant in Dubin submitted a healthcare reimbursement claim with material
misrepresentations. None of those misrepresentations, however, related to the identity of the
patient listed in the claim. According to Dubin’s petition for a writ of certiorari, “[t]he government
disputed neither that petitioner in fact treated Patient L nor that petitioner had the authority to use
Patient L’s name in billing. Nor did the government contend that the bill was false because of
anything petitioner said (or didn’t say) about Patient L’s identity.” Dubin Petition 2. 1
Nevertheless, the inclusion of that patient’s identifying information in the claim constituted the
basis for Dubin’s conviction of aggravated identity theft under 18 U.S.C. § 1028A. The question
presented in Dubin’s Supreme Court petition is thus “whether a person commits aggravated
identity theft any time he mentions or otherwise recites someone else’s name while committing a
predicate offense.” Dubin Petition i. As Martinez notes in his letter motion, the Fifth and Fourth
Circuits have answered that question in the affirmative. In other Circuits, 2 “a person violates
1
Available at https://www.supremecourt.gov/DocketPDF/22/22-
10/229249/20220630145158923_Dubin%20-%20Petition.pdf.
2
In United States v. Wedd, 993 F.3d 104 (2021), the Second Circuit held that “use” of a means of
identification for purposes of Section 1028A means employing the means of identification “to
further or facilitate” the enumerated felony, which “connotes causation.” Id. at 123. The Court
rejected the argument that the statute requires the defendant to “make some effort to impersonate
the person in question.” Id.; see also Dubin Petition 19 (discussing Wedd).
Case 1:22-cr-00251-LJL Document 38 Filed 12/12/22 Page 2 of 3
Page 2
Section 1028A only when he engages in identity theft or at least makes some sort of
misrepresentation involving another person’s identity.” Dubin Petition 3; see also id. at 16.
Here, even assuming the Supreme Court adopted the narrower construction of Section
1028A, Martinez would still be guilty of violating the statute. Martinez engaged in identity theft
and made misrepresentations involving that stolen identity when he submitted a fraudulent
Paycheck Protection Program (“PPP”) loan application for his business. As described in the
Complaint 3:
In connection with the loan application, MARTINEZ represented that MBE had as
many as 15 employees and an average monthly payroll of approximately $119,390
in 2019. In fact, however, from in or about April 2018 through in or about April
2020, MBE had at most four employees who had a total average monthly payroll
of no more $25,000. In order to support the false representations made by
MARTINEZ in the loan application about the number of employees at and the
wages paid by MBE, MARTINEZ submitted fraudulent and doctored tax records
that contained the forged signature of a tax preparer located in Manhattan, New
York (the “Tax Preparer”).
(Dkt. 1 ¶ 10). In particular, Martinez submitted several IRS Forms 941 that were fake, but
appeared to have been signed not only by Martinez but also by the Tax Preparer. (Id. ¶ 19(c)). In
fact, the Tax Preparer’s signature was forged; the “Tax Preparer did not prepare, review, authorize,
or sign” the forms Martinez submitted. (Id. ¶ 20(d)). In short, the conduct underlying the Section
1028A charge in this case is based on identity theft (stealing the Tax Preparer’s identity) and
involved material misrepresentations relating to that identity (that the Tax Preparer had prepared
and signed the fake Forms 941 on the provided dates). As a result, the Government respectfully
submits that a jury instruction adopting the narrower construction of the statute would suffice in
this case and obviate the need for a trial adjournment.
For similar reasons, the defendant’s suggestion that Dubin could affect unspecified
evidentiary issues at trial is mistaken. Even if the Supreme Court struck Section 1028A from the
statute books entirely—an outcome, of course, virtually certain not to occur—the admissibility of
the evidence showing the defendant’s use of fake Forms 941 containing the forged signature of
the Tax Preparer would be unchanged. That identity theft evidence is part and parcel of what made
the PPP loan application fraudulent, and thus a violation of Counts Three and Four. Such evidence
is thus admissible even if Count Five had never been charged. 4
3
The Complaint charged aggravated identity theft as its seventh count. The references to counts
herein are to the Indictment, which charged aggravated identity theft in Count Five.
4
Lastly, while the Court did not even require the Government to respond to the point, the
Government notes that the defendant’s request—unsupported by any argument—to dismiss Count
Five is baseless and should be denied.
Case 1:22-cr-00251-LJL Document 38 Filed 12/12/22 Page 3 of 3
Page 3
For the reasons set forth above, the defendant’s letter motion should be denied.
Respectfully submitted,
DAMIAN WILLIAMS
United States Attorney
by: ___________________________
Micah F. Fergenson
Assistant United States Attorney
(212) 637-2190
cc: Defense Counsel (By ECF)
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- Original
- www.justice.gov