United States District Court, W.D. Kentucky, Louisville
Charles R. Simpson Senior Judge
matter is before the court on motion of the defendant, Philip
E. Michael, II (“Michael”), to dismiss Count 8 of
the Second Superseding Indictment
of the SSI charges Michael with aggravated identity theft, in
violation of 18 U.S.C. § 1028A. Michael has moved to
dismiss this count on the ground that the indictment, as
charged, does not state a crime for which he may be
indictment must provide a “plain, concise, and definite
written statement of the essential facts constituting the
offense charged.” Fed.R.Crim.P. 7(c). The purpose of an
indictment is “to inform the defendant of the nature of
the accusation against him.” Russell, 369 U.S.
at 767 (quoting United States v. Hess, 124 U.S. 483,
487 (1888)). “The Federal Rules of Criminal Procedure,
18 U.S.C.A., were designed to eliminate technicalities in
criminal pleading and are to be construed to secure
simplicity in procedure. Rule 2, F.R.Crim.Proc.”
United States v. Debrow, 346 U.S. 374, 376 (1953).
As explained by the Supreme Court as early as 1895, an
indictment need not be a literary work of art:
T]he true test is, not whether it might possibly have been
made more certain, but whether it contains every element of
the offense intended to be charged, and sufficiently apprises
the defendant of what he must be prepared to meet, and, in
case any other proceedings are taken against him for a
similar offense, whether the record shows with accuracy to
what extent he may plead a former acquittal or conviction.
Evans v. U.S., 153 U.S. 584, 587, 588, 14 Sup. Ct. 934;
Batchelor v. U.S., 156 U.S. 426, 15 Sup. Ct. 446.
Cochran v. United States, 157 U.S. 286, 290, 15
S.Ct. 628, 630, 39 L.Ed. 704 (1895).
indictment must be read as a whole, accepting the factual
allegations as true, and construing those allegations in a
practical sense with all the necessary implications.
United States v. Reed, 77 F.3d 139, 140 n. 1 (6th
Cir.1996) (en banc). An indictment is to be construed
liberally in favor of its sufficiency. United States v.
Davis, 306 F.3d 398, 411 (6th Cir.2002). United
States v. McAuliffe, 490 F.3d 526, 531 (6th Cir. 2007).
On or about September 17, 2013, in the Western District of
Kentucky, Jefferson County, Kentucky, and elsewhere, the
Defendant herein, PHILIP MICHAEL, did knowingly possess,
transfer and use the means of identification of another
person, without lawful authority, during and in relation to
the offense charged in Count 7, to wit, PHILIP MICHAEL
possessed, transferred, and used the name, date of birth and
other identifying information for P.R. and the name and NPI #
of A.S., a physician, to submit a fraudulent claim for
SSI, ¶ 65.
defendant contends that, under Sixth Circuit caselaw, taking
the facts as true, Michael's conduct does not constitute
the crime of aggravated identity theft.
does not appear to be any dispute as to what Michael
purportedly did on September 17, 2013. The United States
explains Count 8 in greater detail in its brief, stating that
while working as a pharmacist for Aracoma Pharmacy, Michael
allegedly used the identifying information of P.R. and the
name and physician number of A.S. to submit a claim to Humana
for reimbursement for a drug, Lovasa, which was not
authorized by A.S. and was not dispensed to P.R. by Michael.
Michael urges that under Sixth Circuit law, this act, if
proved, does not constitute aggravated identity theft. We
contours of the crime of aggravated identity theft are
defined by three cases in the Sixth Circuit: United
States v. Miller, 734 F.3d 530 (6th Cir.
2013); United States v. Medlock, 792 F.3d 700
(6th Cir. 2015); and the very recent case of
United States v. White, 846 F.3d 170 (6th
Cir. 2017) which discusses both Miller and
Miller and Medlock, the Sixth Circuit found
that the use of another's identifying information did
not, per se, fall under the aggravated identity
theft statute, and under the facts in each case, the statute
did not reach the conduct charged. The Sixth Circuit reached
a different result in White. The court found, after
distinguishing the facts before it from ...