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. 

Higdon: A Short Violent-Felony Opinion that Packs a Punch

Appearances can be deceiving. It’s easy to read United States v. Higdon as a case that answers a narrow question: whether a North Carolina offense is a “violent felony” under the Armed Career Criminal Act’s definition. Higdon actually does much more and provides a nice outline about the state of violent-felony jurisprudence after Johnson v. United States, which relieved us of the burden of interpreting the statute’s residual clause. Johnson has not the panacea federal public defenders hoped. Much of the analysis about whether a conviction is for a violent felony has shifted to the use-of-force clause: any felony that “has as an element the use, attempted use, or threatened use of physical force against the person of another.” 18 U.S.C. § 924(e)(2)(B)(i). And that shift has created some inter- and intra-circuit fault lines.

Let’s get down the brass tacks. Daryl Lynn Higdon pleaded guilty to being a felon in possession of a firearm and was sentenced to the mandatory minimum term of imprisonment of 15 years.  The district court did so because Mr. Higdon had a 1984 conviction for discharging a firearm into an occupied structure in violation of N.C. Gen. Stat. § 14-34.1 (1981). North Carolina courts have identified five elements of this crime: (1) willfully and wantonly discharging (2) a firearm (3) into property (4) while it is occupied, and (5) the defendant had reasonable grounds to believe the property might be occupied.

The government abandoned any claim that the offense involves “attempted” or “threated” use of physical force, and so the only question the Sixth Circuit had to answer was “whether these elements, taken separately or together, require the ‘use . . . of physical force against the person of another.’” The court had little trouble concluding, “[p]lainly they do not[.]” Although the statute requires proof that force was used (discharging a firearm), it does not require that the force be “against the person of another.” No injury must occur.

Now it’s time for the good stuff: why is Higdon important? This case provides direction for the proper analytical approach to help determine whether convictions contain a use-of-force element. The court identified the four requirements of “violent felonies”: “(1) conduct giving rise to force (e.g., pulling a trigger on a gun); (2) certain consequences from that conduct (i.e., the application of “physical force against the person of another”); and two types of mens rea, namely (3) the conduct giving rise to the force be ‘volitional’ rather than accidental, and (4) the defendant be at least reckless as to the consequences of the conduct.” (citations omitted). Higdon clarifies that an offense cannot satisfy these requirements if the defendant had knowledge of the consequences, but did not actually cause them. The court also defined “force against the person of another,” adopting the following definition: the force must be applied to the victim’s person.

Also of note is the fact that Higdon’s author, Judge Kethledge, highlighted his lingering disagreement with Judge Sutton about whether a mens rea of mere recklessness is sufficient to satisfy § 924(e)(2)(B)(i)’s definition. We covered this dispute previously, and this is an issue will continue to divide circuit courts until the Supreme Court intervenes.

One final note: credit where credit is due. Congratulations to Jennifer Coffin of Federal Defender Services of Eastern Tennessee for her hard work on this case.

Sixth Circuit rules that defendant who volunteered to search the internet for information on a missing drug shipment can be held responsible for the shipment’s total weight

In United States v. Pablo Hernandez, the Sixth Circuit demonstrated the low threshold required for holding a defendant responsible for drugs distributed by a conspiracy.  Mr. Hernandez procured an abandoned warehouse to receive large shipments of marijuana from out of state.  In return for this service, the supplier agreed to pay Mr. Hernandez $5,000 per shipment.  After the supplier fell behind on his payments, he offered to give Mr. Hernandez two kilograms of cocaine to satisfy his debt.  These two kilograms were part of a larger 28 kilogram shipment.  However, Mr. Hernandez and his associates were not going to receive this shipment; instead, Mr. Hernandez needed only to pick up his two kilograms from the delivery location.

En route, the shipment went missing.  The supplier told Mr. Hernandez that he was concerned that police had seized the shipment, or that one of the supplier’s employees had stolen it.  Mr. Hernandez “then volunteered to get on the internet and see if he could find out what happened.”  Eventually, one of his associated informed him that the DEA had seized the shipment.

After Mr. Hernandez was arrested, he confessed to both his role in receiving the shipments of marijuana and his involvement with the 28-kilogram shipment.  He then pleaded guilty to the cocaine charges in exchange for the government’s agreement not to prosecute the marijuana offense.

At sentencing, Mr. Hernandez argued that he was responsible for only the two kilograms of cocaine he was set to receive.  More specifically, he argued that the remaining 26 kilograms were outside the scope of his agreement, and thus not relevant conduct.  The district court rejected this argument based on Mr. Hernandez investigating the missing shipment on the internet.  The district court ruled that his actions after the shipment had gone missing had “expanded his role in the conspiracy.”  The court also rejected Mr. Hernadez’s argument that he was a minor participant in the cocaine conspiracy. 

On appeal, the Sixth Circuit affirmed the district court’s rulings.  The court held that Mr. Hernandez’s investigation had expanded his role in the conspiracy, justifying holding him accountable for the full 28 kilograms.

The Sixth Circuit also affirmed the enhancement of Mr. Hernandez’s sentence based on maintaining a drug-premises.  The record showed that Mr. Hernandez had procured the abandoned warehouse for a marijuana shipment at least three times.   The court focused on Mr. Hernandez’s relationship to the abandoned warehouse during the deliveries, noting that he controlled the premises during these times.  Thus, despite the fact that Mr. Hernandez did not control the abandoned warehouse between deliveries, the enhancement applied.

Opinion available here.

Sixth Circuit holds that North Carolina robbery is a crime of violence under the residual clause of the guidelines

In United States v. Smith, the Sixth Circuit returned to its earlier holding that North Carolina robbery qualifies as crime of violence under the sentencing guidelines’ residual clause.  In 2014, the Sixth Circuit had decided this very issue in Mr. Smith’s case, holding that North Carolina robbery was a crime of violence under the residual clause.  However, in light of Johnson, the Supreme Court vacated that decision and remanded the case. 

After the Sixth Circuit ruled that the guidelines’ residual clause was void for vagueness, it remanded Mr. Smith’s case to the district court.  The district court then ruled that the robbery was a crime of violence under both the elements clause and the enumerated offenses clause.  While Mr. Smith’s appeal was pending, the Supreme Court decided Beckles, holding that the guidelines’ residual clause was—in fact—valid. 

Accordingly, when Mr. Smith’s case arrived before the Sixth Circuit again, the court decided to rely on its prior holding.  The court noted case law from the Fourth Circuit holding that North Carolina robbery is not a violent felony under the ACCA’s element clause, as well as a Fourth Circuit opinion holding that North Carolina robbery is a crime of violence under the guidelines’ enumerated offenses clause.  However, instead of analyzing the crime under either of these clauses, the court readopted its prior holding that North Carolina robbery is a crime of violence under the residual clause.  Since the career offender guideline no longer includes the residual clause, the question of whether North Carolina robbery qualifies as a crime of violence under the current guidelines will have to wait for another day.

Opinion available here.

LinkedIn evidence leads Sixth Circuit to remand case for Remmer hearing

In United States v. Talman Harris, social media evidence led the Sixth Circuit to remand a case for a hearing on extraneous influence on a juror.  While on trial for wire fraud, Mr. Harris received a notification that someone viewed his LinkedIn profile.  After the jury found him guilty, Mr. Harris logged in and discovered that a local college student had viewed his profile.  Further research revealed that this student was a juror’s live-in girlfriend.  Mr. Harris had no connection to the student, and his trial had not received publicity.

This evidence suggested that the juror violated the court’s instructions by discussing the trial with his girlfriend.  Additionally, the exclusion of certain evidence made this discovery especially problematic.  A licensing organization had investigated Mr. Harris and revoked his license.  The district court had excluded this evidence from the trial.  However, searching Mr. Harris’s name on Google brought up the investigation as one of the top results.  Mr. Harris’s LinkedIn profile was likewise among the top results.

Based on this evidence, Mr. Harris argued that the student had Googled his name and potentially shared prejudicial information with the juror.  Mr. Harris moved for a Remmer hearing to determine whether the juror had been exposed to the extraneous prejudicial information.  In the alternative, Mr. Harris sought permission to interview the juror and his girlfriend.

The district court denied both requests.  The court concluded that in “‘this age of the internet,’” the most likely scenario was that the juror’s girlfriend learned that he was seated as a juror, visited the court’s website, found the trial in progress, and continued her research by visiting LinkedIn, all without any communications with her boyfriend.

The Sixth Circuit vacated the district court’s judgment and remanded for a Remmer hearing.  The court noted that Mr. Harris had presented a colorable claim of extraneous influence.  Thus, although the district court had discretion in how to investigate the claim, it had abused its discretion by failing to hold an evidentiary hearing or allow Mr. Harris to investigate further. 

Opinion available here.