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Date: 02-26-2018

Case Style:

United States of America v. Philip E. Michael, II

Western District of Kentucky Federal Courthouse - Louisville, Kentucky

Case Number: 17-5626

Judge: Sutton

Court: United States Court of Appeals for the Sixth Circuit on appeal from the Western District of Kentucky (Jefferson County)

Plaintiff's Attorney: Terry M. Cushing

Defendant's Attorney: Nicole Elver

Description: 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.
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
No. 17-5626 United States v. Michael Page 3
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.
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 (2007); Bailey v. United States,
516 U.S. 137 (1995); Smith v. United States, 508 U.S. 223 (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
No. 17-5626 United States v. Michael Page 4
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, 134 S. Ct. 1405, 1415 (2014) (18 U.S.C.
§ 921(a)(33)(A)(ii)); Jones v. United States, 529 U.S. 848, 854–55 (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
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
No. 17-5626 United States v. Michael Page 5
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 (1998).
The Supreme Court rejected a similar argument in another case about “uses.” See Smith
v. United States, 508 U.S. 223 (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. 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; cf. Muscarello v. United States,
524 U.S. 125, 130–31 (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 (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 passing oneself off as a particular person.
Our precedent supports this interpretation. In United States v. Miller, we ruled for a
defendant who argued that “uses” includes “act[ing] on [someone else’s] behalf.” 734 F.3d 530,
541 (6th Cir. 2013). In United States v. Medlock, we pointed to our Pattern Jury Instructions for
§ 1028A(a)(1), which define “uses” to include “display[ing], barter[ing], or refer[ring] to means
of identification as such.” 792 F.3d 700, 706 (6th Cir. 2015). And in United States v. White, we
affirmed the conviction of a travel agent who submitted false IDs to airlines on behalf of her
clients even though she never pretended to be her clients. 846 F.3d 170, 177–78 (6th Cir. 2017).
No. 17-5626 United States v. Michael Page 6
The definitions noted in Miller and Medlock cover the conduct alleged in this case.
A jury readily could find that a pharmacist who files a claim with a patient’s insurer to recoup
costs the patient would otherwise have to pay “refer[s] to means of identification as such” and
“acts on [that patient’s] behalf.” And White rejected a cramped reading of “uses,” showing that
it covers more than assuming another person’s identity. Otherwise, that conviction would have
been reversed, not affirmed.
Michael prefers another reading of these decisions. He points to Miller’s statement that
§ 1028A does not cover “merely lying about what [other people] did” or did not do. 734 F.3d at
541. But if Miller established a requirement that a defendant impersonate someone else, as
Michael claims, our opinion in White four years later would have come out differently. White
lied about what her clients had done by creating the impression that they had served in the
military. But she never assumed their identities. 846 F.3d at 177. Miller also elaborated on
these issues in a way that undermines Michael’s position. Miller’s lies about what other
individuals did, the court reasoned, were insufficient where he acted on behalf of an entity rather
than on behalf of individuals. 734 F.3d at 541 n.5. Michael, however, “portrayed himself as
acting on behalf of” two individuals: A.S. and P.R. Id.
What of Medlock? The defendants operated an ambulance company and transported
patients to hospitals for routine dialysis treatment. 792 F.3d at 703. When they requested
reimbursement from Medicaid, the defendants mischaracterized the nature of the transports,
saying that the patients had required stretchers when they had not. Id. at 705. The court held,
quite correctly, that submitting false reimbursement requests about the nature of a service
provided did not constitute “use” of another’s “means of identification” but that forging a
doctor’s signature to bolster those submissions satisfied the statute. Id. at 708, 712. The lie in
the first instance turned on the nature of the service being provided to a person—lying about
what kind of service someone did or did not provide—not whether the person received a service.
The lie in the second instance turned on whether a doctor had actually approved the
submissions—again about something more than what kind of service was, or was not, provided.
Michael insists that the statute did not cover the conduct in Medlock because the
defendants merely lied about “what they were entitled to,” and he at most did the same thing
No. 17-5626 United States v. Michael Page 7
here. Oral Arg. at 15:58–16:22. But that reality does not invariably free someone from
coverage, as White illustrates. That defendant received something she and her clients were not
entitled to—lower airfares—and yet we upheld that conviction.
When, then, is lying about what one is entitled to covered by the statute? And when not?
The answer turns on causation, or at least causation often helps to answer the question. The
salient point is whether the defendant used the means of identification to further or facilitate the
health care fraud. Consistent with the words of the statute, the question is whether the defendant
used the means of identification “during and in relation to” the predicate felony. 18 U.S.C.
§ 1028A(a)(1); see also Smith, 508 U.S. at 238 (“during and in relation to” means the use “must
facilitat[e]” underlying criminal activity (alteration original)). In Medlock, the health care fraud
was “misrepresent[ing] how and why the [patients] were transported.” 792 F.3d at 707
(emphasis original). The defendants did not use patient names “during, in relation to, or for the
purpose of helping to commit” that felony because they really did transport those patients. Id. at
706. They legitimately listed patient names in rendering the services underlying the
submission. Forging a doctor’s signature to bolster the submissions, in marked contrast,
facilitated the health care fraud. Id. at 712. In one instance, the defendant used the means of
identification in spite of the fraud; in the other, she used the means of identification because of
the fraud.
Think of that distinction here. Had Michael, in the course of dispensing drugs to a patient
under a doctor’s prescription, only inflated the amount of drugs he dispensed, the means of
identification of the doctor and patient would not have facilitated the fraud. See id. at 707–08.
But that is not what he did. He used A.S. and P.R.’s identifying information to fashion a
fraudulent submission out of whole cloth, making the misuse of these means of identification
“during and in relation to”—indeed integral to—the predicate act of healthcare fraud.
Michael also invokes § 1028A’s title: “Aggravated identity theft.” The title, we suppose,
could suggest that “uses” refers only to scenarios in which a defendant assumes another’s
identity. But that is not the only way to construe it. Black’s Law Dictionary defines “identity
theft” as “[t]he unlawful taking and use of another person’s identifying information for
fraudulent purposes.” Black’s Law Dictionary 863 (10th ed. 2014). This definition says nothing
No. 17-5626 United States v. Michael Page 8
about assuming another person’s identity. More to the point is what the rest of § 1028A(a)(1)—
its text rather than its title—says. “[T]he title of a statute and the heading of a section cannot
limit the plain meaning of the text.” Bhd. of R.R. Trainmen v. Baltimore & O. R. Co., 331 U.S.
519, 528–29 (1947); see Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 256 (2004).
Just as it is dangerous to judge a book by its cover, it is dangerous to judge a statute by its title.
Michael insists, last of all, that allowing § 1028A to reach more than passing oneself off
as someone else will lead to limitless liability—in truth limitless sentencing enhancements. But
the statute has other limits. The government must prove “that the defendant knew that the means
of identification at issue belonged to another person.” Flores-Figueroa v. United States,
556 U.S. 646, 657 (2009). Then there is the causation component noted above—that the words
“during and in relation to” preclude the government from raising sentences for any healthcare
fraud. 18 U.S.C. § 1028A(a)(1). So long as the statute requires the government to connect the
misuse of means of identification to facilitation of the fraud, Smith, 508 U.S. at 238, there will be
plenty of sand to keep us from sliding to the bottom of the slope.
We have nothing to say about whether the government will be able to make the requisite
showings at trial. All that matters is that the indictment “contains the elements of the offense
charged.” Hamling v. United States, 418 U.S. 87, 117–19 (1974).

Outcome: We reverse the district court’s decision and remand for proceedings consistent with this

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