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United States v. Michael

United States District Court, W.D. Kentucky, Louisville

April 29, 2017

UNITED STATES OF AMERICA PLAINTIFF
v.
PHILIP E. MICHAEL, II DEFENDANT

          MEMORANDUM OPINION

          Charles R. Simpson Senior Judge

         This matter is before the court on motion of the defendant, Philip E. Michael, II (“Michael”), to dismiss Count 8 of the Second Superseding Indictment (“SSI”).[1]

         Count 8 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 convicted.

         An 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).

         The 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).

         The SSI charges that

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 payment.

SSI, ¶ 65.

         The defendant contends that, under Sixth Circuit caselaw, taking the facts as true, Michael's conduct does not constitute the crime of aggravated identity theft.

         There 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 agree.

         The 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 Medlock.

         In 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 ...


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