United States v. Michael

• Decision Date: 20 February 2018
• Docket Number: No. 17-5626,17-5626
• Citation: 882 F.3d 624
• Parties: UNITED STATES of America, Plaintiff–Appellant, v. Philip E. MICHAEL, II, Defendant–Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

882 F.3d 624

UNITED STATES of America, Plaintiff–Appellant,

v.Philip E. MICHAEL, II, Defendant–Appellee.

No. 17-5626

United States Court of Appeals, Sixth Circuit.

Argued: January 31, 2018

Decided and Filed: February 20, 2018

ARGUED: Terry M. Cushing, UNITED STATES ATTORNEY'S OFFICE, Louisville, Kentucky, for Appellant. Nicole S. Elver, DRESSMAN BENZINGER LA VELLE PSC, Louisville, Kentucky, for Appellee. ON BRIEF: Terry M. Cushing, UNITED STATES ATTORNEY'S OFFICE, Louisville, Kentucky, for Appellant. Nicole S. Elver, Kent Wicker, DRESSMAN BENZINGER LA VELLE PSC, Louisville, Kentucky, for Appellee.

Before: SUHRHEINRICH, SUTTON, and BUSH, Circuit Judges.

SUTTON, Circuit Judge.

What does it mean to "use[ ]" someone else's "means of identification"? 18 U.S.C. § 1028A(a)(1). The question arises in the context of an indictment alleging that Philip Michael used a doctor's means of identification (his name and identification number) and a patient's means of identification (his name and birth date) to request insurance reimbursement for a drug the doctor never prescribed and the patient never requested. Michael claims that the statute covers only impersonations, and he never impersonated anyone. Even if he fraudulently used a doctor's identification number and a patient's name, he says, he still submitted the reimbursement claim in his name. But the statute is not so confined, as the words of the provision and the cases interpreting it show.

I.

Michael worked as a licensed pharmacist at the Aracoma Pharmacy in Chapmanville, West Virginia. He separately co-owns another pharmacy in West Virginia and one in Pennsylvania. The government suspected that Michael used all three pharmacies to distribute on-demand prescription drugs, worth more than $4 million, over the Internet in violation of federal law.

A grand jury returned a multi-count indictment against Michael and several others for crimes arising out of the scheme. Two of the counts deserve mention. Count 7 charged him with committing health care fraud by "fraudulently submitt[ing] a claim for payment to Humana Insurance Company for dispensing medication ... which was never dispensed." R. 78 at 24; see 18 U.S.C. § 1347. And Count 8 charged him with committing aggravated identity theft by using the "identifying information" of a doctor and a patient "in relation to the [health care fraud] offense." R. 78 at 24–25; see 18 U.S.C. § 1028A(a)(1), (c)(11).

The government alleged that, in September 2013, Michael submitted a claim for payment to Humana indicating that A.S. (a doctor) had prescribed the drug Lovaza for P.R. (a patient). The submission included the doctor's National Provider Identifier and the patient's name and birth date. A.S. was not P.R.'s doctor, however. In truth, A.S. did not issue this prescription for Lovaza, and P.R. did not ask Michael to fill a prescription for the drug. After discovering the fraudulent submission, Aracoma's management recalled the submission and fired Michael.

Before trial, Michael moved to dismiss Count 8. Even taking the government's allegations as true, he disclaimed "us[ing]" the "means of identification of another person" in violation of § 1028A. R. 71-1 at 1, 5. The statute requires a person to "assume the identity" of someone else, he insisted, while the government alleged only that he used the doctor and patient information while acting "under his own name as the dispensing pharmacist." Id. at 6. The district court agreed, held that the statute covered only "impersonation," and dismissed Count 8 because it failed to state an offense. R. 135 at 4; see Fed. R. Crim. P. 7(c)(1), 12(b)(3)(B)(v).

The government appealed.

II.

18 U.S.C. § 1028A(a)(1) is a sentencing provision. It imposes a mandatory two-year sentence for anyone who, "[i] during and in relation to any felony violation enumerated in subsection (c), [ii] knowingly transfers, possesses, or uses, [iii] without lawful authority, [iv] a means of identification of another person." No one disputes that health care fraud—alleged in Count 7 of the indictment—is a qualifying predicate felony "enumerated in subsection (c)." See 18 U.S.C. §§ 1028A(c)(5), 1347 ; United States v. Abdur–Rahman , 708 F.3d 98, 100–01 (2d Cir. 2013). No one disputes that A.S.'s National Provider Identifier and P.R.'s name and birth date are "means of identification." 18 U.S.C. § 1028(d)(7) ("any name or number that may be used ... to identify a specific individual"). And no one disputes that whatever Michael did with their identifying information, he did "without lawful authority." See United States v. Lumbard , 706 F.3d 716, 725 (6th Cir. 2013).

That leaves this question: Did Michael "transfer[ ], possess[ ], or use [ ]" A.S. and P.R.'s "means of identification" even though he did not pretend to be them? 18 U.S.C. § 1028A(a)(1) (emphasis added).

"Use" has more than one meaning, and this is not the first time Congress has vexed the courts by using it. See Watson v. United States , 552 U.S. 74, 128 S.Ct. 579, 169 L.Ed.2d 472 (2007) ; Bailey v. United States , 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995) ; Smith v. United States , 508 U.S. 223, 113 S.Ct. 2050, 124 L.Ed.2d 138 (1993). But context usually goes a long way to resolving these interpretive disputes, and it does just that here. The object of "use[ ]" is "a means of identification." 18 U.S.C. § 1028A(a)(1). To "use" a means of identification in this setting is "[t]o convert to one's service" or "to employ" the means of identification. Webster's New International Dictionary 2806 (2d ed. 1942); see also Webster's New International Dictionary 2523 (3d ed. 2002) ("to put into action or service[;] have recourse to or enjoyment of"); Oxford English Dictionary Online (3d ed. 2011) ("[t]o put (an instrument, implement, etc.) to practical use; esp. to make use of (a device designed for the purpose) in accomplishing a task"); Black's Law Dictionary 1776 (10th ed. 2014) ("[t]o employ for the accomplishment of a purpose; to avail oneself of"). That is a fair, and fairly straightforward, way to construe the sentence.

Several cases adopt this meaning of "use" in construing criminal laws in a similar context. See, e.g. , United States v. Castleman , ––– U.S. ––––, 134 S.Ct. 1405, 1415, 188 L.Ed.2d 426 (2014) ( 18 U.S.C. § 921(a)(33)(A)(ii) ); Jones v. United States , 529 U.S. 848, 854–55, 120 S.Ct. 1904, 146 L.Ed.2d 902 (2000) ( 18 U.S.C. § 844(i) ); United States v. Chapman , 866 F.3d 129, 132 (3d Cir. 2017) ( U.S.S.G. § 4B1.2(a)(1) ); Konop v. Hawaiian Airlines, Inc. , 302 F.3d 868, 880 (9th Cir. 2002) ( 18 U.S.C. § 2701(c)(2) ); United States v. Ramsey , 237 F.3d 853, 859 (7th Cir. 2001) ( U.S.S.G. § 3B1.4 ).

Measured by this reading of the statute, Michael's conduct violated it—or at least a jury could find he violated it. (We are at the indictment stage.) As alleged, Michael used A.S.'s ID number and P.R.'s name when he created and submitted a fraudulent prescription order to obtain reimbursement money from Humana. That, it seems to us, represents a natural interpretation of the provision, and a fair application of it here.

Sometimes the object of a verb limits the meaning of the verb, it is true. Saying a person "uses drugs" might suggest in context that the verb means "to consume ... regularly." Webster's New International Dictionary 2524 (3d ed. 2002). Other examples abound of ways in which the object of "use" might change the meaning of use. See, e.g. , Oxford English Dictionary Online (3d ed. 2011) ("[t]o ingest or consume (a medicine ) or avail oneself of (a treatment ) in order to gain benefit"); id. ("[t]o employ (a weight, measure, or other abstract system ) as a standard").

Michael thinks that the statutory object of the sentence, using a "means of identification" for fraudulent purposes, does something similar: that it confines the coverage of the law only to impersonations. We don't see it. The provision increases the sentence for anyone convicted of health care fraud who "uses" the "means of identification" of someone else. 18 U.S.C. § 1028A(a)(1). That language no doubt covers impersonations, and impersonations may well have been one of the targets, perhaps even the principal target, of this sentencing-enhancement statute. But it is not unusual for the words of laws to go beyond the central, even the sole, motivation for enacting them. No matter what happened here, only the words of a law, not the motivations of its authors, may cabin (or for that matter extend) its reach. See Oncale v. Sundowner Offshore Servs., Inc. , 523 U.S. 75, 79–80, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998).

The Supreme Court rejected a similar argument in another case about "uses." See Smith v. United States , 508 U.S. 223, 113 S.Ct. 2050, 124 L.Ed.2d 138 (1993). That statute imposed mandatory minimum sentences for anyone who "uses ... a firearm" "during and in relation to ... [a] drug trafficking crime." 18 U.S.C. § 924(c)(1). The petitioner argued that combining "uses" with "a firearm" meant that the statute criminalized only a specific kind of use, using a gun "for its intended purpose" by firing it as a weapon rather than, as happened there, trading it for drugs. Id. at 229–30, 113 S.Ct. 2050. The Court disagreed. Although shooting a firearm may be "the first [example] to come to mind" for most people in thinking about using a firearm, that is not the only way to interpret the term, as an individual "can use a firearm in a number of ways." Id. at 230, 113 S.Ct. 2050 ; cf. Muscarello v. United States , 524 U.S. 125, 130–31, 118 S.Ct. 1911, 141 L.Ed.2d 111 (1998).

Smith was a strong candidate for allowing an object to limit its verb in that context, as the dissent pointed out. See 508 U.S. at 242, 113 S.Ct. 2050 (Scalia, J., dissenting). But the argument failed. This case offers a far weaker claim. Pairing "uses" with "a means of identification" does not point us to any specialized definition, much less one that suggests "uses" refers only to assuming an identity or...