Aggravated Identity Theft Statute – Don’t Judge the Statute by Its Title

 

The Sixth Circuit recently studied 18 U.S.C. § 1028A(a)(1) and questioned the meaning of using someone else’s “means of identification.” 

 In United States v. Michael, 17-5626, Philip E. Michael worked as a licensed pharmacist in West Virginia and co-owned pharmacies in West Virginia and Pennsylvania.  The government suspected he used the pharmacies to illegally distribute on-demand prescriptions over the internet. The prescriptions were worth more than $4 million. He was indicted with other defendants, and one of the counts alleged he committed aggravated identity theft by “using the ‘identifying information’ of a doctor and a patient ‘in relation to the [health care fraud] offense.’”  The basis for the charge was that he submitted a claim for payment to an insurance provider indicating that a doctor prescribed a drug to a specific patient.  Included with the claim was the doctor’s National Provider Identifier, and the patient’s name and date of birth.  In reality, the doctor did not treat the patient or prescribe the medication.

Prior to trial, Michael argued that §1028A requires a person to “assume the identity” of someone else, but he acted “under his own name as the dispensing pharmacist.”  The district court agreed and dismissed this particular count and the government appealed.

Michael did not dispute that the doctor’s identifier or the patient’s name and date of birth are a “means of identification.”  He also did not argue that his use of this information was with lawful authority.  The sole issue before the Sixth Circuit was whether he transferred, possessed, used the “means of identification” even though he did not pretend to be the doctor or patient.  

The Sixth Circuit analyzed the many uses of “use” and “uses” and determined that “the question is whether the defendant used the means of identification “during and in relation to” the predicate felony.  The Court found the defendant used the identifying information of the doctor and patient “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 argued that the title “Aggravated Identity Theft” for §1028A suggests that ‘uses’ refers only to scenarios that a defendant assumes another’s identity.  However, the Sixth Circuit reasoned that “just as it is dangerous to judge a book by its cover, it is dangerous to judge a statute by its title.”  Finding that the indictment contained the elements of the offense charged, the Court reversed the district court’s decision and remanded for proceedings.