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United States v. Michael

United States Court of Appeals, Sixth Circuit

February 20, 2018

United States of America, Plaintiff-Appellant,
v.
Philip E. Michael, II, Defendant-Appellee.

          Argued: January 31, 2018

          Appeal from the United States District Court for the Western District of Kentucky at Louisville. No. 3:16-cr-00101-1-Charles R. Simpson, III, District Judge.

         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.

          OPINION

          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. ยง 1347. And Count 8 charged him with committing aggravated identity theft by using the "identifying information" of a doctor and a ...


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