592 F.3d 602 (4th Cir. 2010), 08-4884, United States v. Abdelshafi

Docket Nº:08-4884.
Citation:592 F.3d 602
Opinion Judge:AGEE, Circuit Judge.
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Mohamed Adam ABDELSHAFI, Defendant-Appellant.
Attorney:John Britton Russell, Jr., Durrettebrad-Shaw, PLC, Midlothian, Virginia, for Appellant. Joseph Errington Atkinson, Office of the Attorney General of Virginia, Richmond, Virginia, for Appellee. Dana J. Boente, Acting United States Attorney, Alexandria, Virginia, Richard D. Cooke, Assistant United ...
Judge Panel:Before NIEMEYER and AGEE, Circuit Judges, and JOHN PRESTON BAILEY, Chief United States District Judge for the Northern District of West Virginia, sitting by designation. Judge AGEE wrote the opinion, in which Judge NIEMEYER and Judge BAILEY joined.
Case Date:January 25, 2010
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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592 F.3d 602 (4th Cir. 2010)

UNITED STATES of America, Plaintiff-Appellee,

v.

Mohamed Adam ABDELSHAFI, Defendant-Appellant.

No. 08-4884.

United States Court of Appeals, Fourth Circuit.

January 25, 2010

         Argued: Dec. 2, 2009.

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[Copyrighted Material Omitted]

Page 604

         ARGUED:

         John Britton Russell, Jr., Durrettebrad-Shaw, PLC, Midlothian, Virginia, for Appellant.

         Joseph Errington Atkinson, Office of the Attorney General of Virginia, Richmond, Virginia, for Appellee.

         ON BRIEF:

         Dana J. Boente, Acting United States Attorney, Alexandria, Virginia, Richard D. Cooke, Assistant United States Attorney, Office of the United States Attorney, Richmond, Virginia, for Appellee.

          Before NIEMEYER and AGEE, Circuit Judges, and JOHN PRESTON BAILEY, Chief United States District Judge for the Northern District of West Virginia, sitting by designation.

         Affirmed by published opinion.

          Judge AGEE wrote the opinion, in which Judge NIEMEYER and Judge BAILEY joined.

         OPINION

          AGEE, Circuit Judge.

          Mohamed Adam Abdelshafi was convicted in a bench trial in the Eastern District of Virginia on fifteen counts of health care fraud, in violation of 18 U.S.C. § 1347, and two counts of aggravated identity theft, in violation of 18 U.S.C. § 1028A, and sentenced to sixty-two months' imprisonment.1

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On appeal, Abdelshafi does not challenge his convictions for health care fraud, but contends the district court erred on two grounds. First, Abdelshafi contends the Government's evidence was insufficient to establish his guilt of aggravated identity theft, as a matter of law, because the Government failed to prove that he used Medicaid patients' identifying information " without lawful authority." 18 U.S.C. § 1028A(a)(1). Second, Abdelshafi argues that his sentence on the health-care-fraud counts should be vacated because he should not have received a two-level, offense-level enhancement for abuse of trust. See U.S.S.G. § 3B1.3. For the reasons that follow, we affirm the judgment of the district court.

         I. Background

         Although the parties vigorously contest how the law applies to the essential facts of this case, those facts are not in dispute. Virginia Premier Health Plan (" Virginia Premier" ), a health maintenance organization, contracts with the Virginia Department of Medical Assistance Services to provide medical services-including medical transportation services-to Medicaid patients in Virginia.2 Some medical transportation services are provided directly by Virginia Premier, while others are contracted to third-party vendors. Abdelshafi owned and operated one such third-party vendor, Shafi Medical Transportation (" SMT" ).

         Virginia Premier contracted with SMT to provide medical transportation to some of its members. Typically, Virginia Premier would send SMT a daily trip log, which included patients' identifying information, contact information, and trip details. Importantly, the patient's identifying information included that person's Medicaid identification number. The data in these trip logs served as SMT's direction to transport patients and to bill Virginia Premier. For example, each handwritten claim form Abdelshafi submitted on behalf of SMT included the patient's name, date of birth, Medicaid identification number, date of service, pick-up and drop-off locations, and number of miles traveled. Virginia Premier would then pay SMT based on such factors as the mileage traveled, driver's wait time, whether wheelchair transportation was provided, and whether transportation was provided outside of normal business hours, all as submitted by Abdelshafi.

         SMT's billing practices came under suspicion after Virginia Premier discovered that several claim forms Abdelshafi submitted contained substantially inflated mileage amounts. The ensuing investigation by state and federal authorities revealed that Abdelshafi not only inflated mileage amounts, but also submitted claim forms for trips that did not, in fact, occur. Investigators concluded these billing practices allowed Abdelshafi to collect at least $308,329.00 in fraudulent payments.

          At trial, Abdelshafi argued in a motion for acquittal that he could not be guilty of aggravated identity theft because he did not use Medicaid patients' identifying information " without lawful authority." 18 U.S.C. § 1028A(a)(1). Abdelshafi contended that since Virginia Premier specifically furnished him with patients' identifying information for use in SMT's billing, he was in lawful possession of the Medicaid identification numbers and other identifying information. In Abdelshafi's view, " excessive use" of that legitimately obtained

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identifying information " over and above" what was authorized by Virginia Premier did not constitute a use " without lawful authority." Joint Appendix (" J.A." ) at 384. Abdelshafi argued that to be a use " without lawful authority" an individual must " try [ ] to take someone else's identity and pretend to be that person or ... pretend that they have been providing services for that person." Id.

         The district court considered the matter and ruled that the aggravated-identity-theft statute " does not require that" another's identifying information " be stolen" or misappropriated. Id. at 394. Further, the court read 18 U.S.C. § 1028A(a)(1) to proscribe the use of another " person's identity for any unlawful purpose[ ]." Id. at 395.

The Court is of the opinion that reading the statute over, it indicates that it is unlawful to use a person's identity for any unlawful purposes, and that it's the use of it that is important. They may have the authority to have the identification for one purpose but yet may not use it for another unlawful purpose.

This situation is the latter. There was no authority to use the identity of either of these two individuals for the purpose of filing a false medical claim.

Id. at 394-95.

         At sentencing, Abdelshafi also objected to a proposed two-level enhancement of his Guidelines offense level on the health-care-fraud counts for abusing a position of trust. See U.S.S.G. § 3B1.3. First, Abdelshafi maintained that his relationship with Virginia Premier consisted of a mere " ordinary commercial contract" and thus did not involve a position of trust. J.A. at 418. Second, focusing on the limited services SMT provided, Abdelshafi argued that he did not possess the " significant amount of discretion" necessary to support such an enhancement. Id.

         The district court determined that the appropriate inquiry turned on " the total discretion" Abdelshafi possessed " with respect to the victim." Id. at 424. Abdelshafi, in the district court's view, " exercise[d] discretion" in recording " how many miles that he drove, the time of day, [and] the type of transportation" in what was " somewhat of a self-policing relationship" in regard to billing Virginia Premier. Id. at 427. In addition, Abdelshafi's discretion in this regard occurred in the context " of providing Medicaid services" and clearly involved " compensat[ion] from Medicaid funds." Id. at 426. The district court consequently overruled Abdelshafi's objection and increased his offense level by two levels for abusing a position of trust.

         II. Analysis

          On appeal, Abdelshafi reasserts these arguments in contending that the district court erred in denying his motion for acquittal on the aggravated identity theft counts and in imposing a Guidelines enhancement for abuse of trust. " We review de novo a district court's denial of a motion, made pursuant to Rule 29 of the Federal Rules of Criminal Procedure, for judgment of acquittal." United States v. Perkins, 470 F.3d 150, 160 (4th Cir.2006). Similarly, we " review de novo the district court's legal interpretation of what constitutes ‘ a position of trust’ under [U.S.S.G.] § 3B.3," but our review of the district...

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