UNITED STATES OF AMERICA, Plaintiff-Appellee, v. SHEILA HARRIS, Defendant-Appellant.
No. 19-10006
D.C. No. 1:17-cr-00001-HG-1
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
December 29, 2020
Before: J. Clifford Wallace, Carlos T. Bea, and Mark J. Bennett, Circuit Judges. Opinion by Judge Bennett
FOR PUBLICATION
OPINION
Appeal from the United States District Court for the District of Hawaii Helen W. Gillmor, District Judge, Presiding
Argued and Submitted October 22, 2020 Honolulu, Hawaii
Filed December 29, 2020
SUMMARY*
Criminal Law
The panel affirmed convictions on two counts of aggravated identity theft under
The defendant‘s scheme included submitting claims that falsely identified a speech pathologist as the rendering provider for dates on which the speech pathologist provided no services. The panel held that the defendant‘s use of the speech pathologist‘s name and National Provider Identifier number on the claim forms was “during and in relation” to the commission of wire fraud, and therefоre constituted “use” of another‘s identification under
The panel addressed the defendant‘s other challenges in a concurrently filed memorandum disposition.
COUNSEL
Ronald W. Chapman II (argued), Chapman Law Group, Troy, Michigan, for Defendant-Aрpellant.
Marion Percell (argued), Chief of Appeals; Kenji M. Price, United States Attorney; United States Attorney‘s Office, Honolulu, Hawaii, for Plaintiff-Appellee.
OPINION
BENNETT, Circuit Judge:
A jury convicted Sheila Harris of eleven counts of wire fraud, two counts of aggrаvated identity theft, and four counts of making false statements relating to health care matters. She appeals from her convictions, her seventy-month sentence, and the orders of restitution and forfeiture. In this opinion, we address Harris‘s argument that her identity theft convictions under
We have jurisdiction under
I. BACKGROUND
Harris was the owner and operator of a Honolulu business called Harris Therapy, Inc. (Harris Therapy), which provided therapeutic services, including speech, physical, and occupational therapy services.
From 2008 to 2012, Harris fraudulently billed TRICARE for speech therapy services provided to children of military families. Harris‘s scheme included, among other things, a pattern of double billing and submitting clаims to TRICARE that falsely identified Kara Spheeris, a speech pathologist who worked for Harris Therapy, as the rendering provider for dates on which Spheeris provided no services.
The First Superseding Indictment charged Harris with eleven сounts of wire fraud, two counts of aggravated identity theft, and four counts of making false statements relating to health care matters. The aggravated identity theft counts alleged that Harris “knowingly . . . use[d], . . . without lawful authority, the means of identification of another person, [J.B. and K.H. (TRICARE beneficiaries), and Spheeris], who was a speech language pathologist, . . . with the intent to commit . . . the wire fraud offense[s] described in Count 1 [and Count 7].”
The government‘s evidence showed that Harris filled out two claim forms and submitted them to TRICARE—one identified J.B. as the patient and the other identified K.H. as the patient. The forms showed that Spheeris had provided speech therapy services to J.B. and K.H. on certain dates in September 2011. On both forms, Harris entered Spheeris‘s name as the “Billing Provider” and Spheeris‘s unique National Provider Identifier (NPI) number for the “Rendering Provider ID.” Harris signed both forms using her own name.
The government‘s evidence also showed that Spheeris did not know that Harris had used her name and NPI number on the forms, and she never authorized Harris to do so. Spheeris never provided speech therapy services to J.B. or K.H. Indeed, Spheeris did not provide any services to any patients in September 2011 because she was on maternity leave. TRICARE would have denied the claims had it known that Spheeris was not the rendering provider.
After a ten-day trial, the jury convicted Harris on all counts. The district court sentenced Harris to seventy months, and she timely appealed.
II. STANDARD OF REVIEW
Hаrris contends that her use of Spheeris‘s name and NPI number on the claim forms did not amount to “use” under the aggravated identity theft statute,
III. DISCUSSION
Under
We have addressed the meaning of “use” under
In Hong, 938 F.3d at 1044, the defendant owned several massage and acupuncture clinics. Patients, who had received massage and acupuncture treatments, gave the clinics their Medicare identification information believing (incorrectly) that Medicare pays for massages and acupuncture. Id. Hong, employing the patients’ Medicare information, filed Medicare claims falsely stating that the patients had received not massages and acupuncture but rather “a Medicare-eligible physical therapy service.” Id. at 1051.
In determining whether Hong‘s conduct fell within the aggravated identity theft statute, we relied on United States v. Medlock, 792 F.3d 700 (6th Cir. 2015). See Hong, 938 F.3d at 1050–51. We recognized that in Medlock, “[t]he defendants filed Medicare claims falsely stating that stretchers were required [to transport patients], where the use of stretchers would entitle the ambulancе service to Medicare reimbursement.” Hong, 938 F.3d at 1050. The Sixth Circuit held that this conduct was not “use” of another‘s identification under
We determined that Hong‘s actions were analogous to the defendants’ actions in Medlock. Hong, 938 F.3d at 1051. Thus, we held that Hong did not “use” the patients’ informatiоn under the statute because he never “attempted to pass [himself] off as the patients.” Id. at 1051 (brackets omitted) (quoting United States v. Berroa, 856 F.3d 141, 156 (1st Cir. 2017)). Nor did he “purport to take some other action on another person‘s behalf.” Id. (quoting Berroa, 856 F.3d at 156). Rather, “Hong provided massage services to pаtients to treat their pain, and then participated in a scheme where that treatment was misrepresented as a Medicare-eligible physical therapy service.” Id. Thus, as in Medlock, the patients’ identities had little to do with furthering or facilitating Hоng‘s fraudulent scheme. See Gagarin, 950 F.3d at 603 (characterizing Hong‘s conduct as “merely misrepresent[ing] the nature of treatment that actual patients of his received“); see also United States v. Michael, 882 F.3d 624, 629 (6th Cir. 2018) (reasoning that the defendants in Medlock “did not use patient names ‘during, in relation to, or for the purpose of helping to commit’ [the health care fraud] because they really did transport those patients” (quoting Medlock, 792 F.3d at 706)).
In Gagarin, we held that the defendant “used” another‘s identification under
While Hong and Gagarin are instructive, neither directly controls the outcome here. Unlike the defendant in Hong, Harris‘s use of Spheeris‘s identification was central to the wire fraud. And unlike the defendant in Gagarin, Harris did not try to pass herself off as Spheeris through forgery or impersonation. In Gagarin, however, we cited and relied on a recent Sixth Circuit case, Michael, 882 F.3d 624.
In Michael, the defendant, a licensed pharmacist, allegedly submitted a claim for payment to an insurance company showing that a doctor had prescribed a drug to a patient. 882 F.3d at 625. “The submission included the doctor‘s [NPI number] and the patient‘s name and birth date.” Id. In truth, the doctor was not the patient‘s doctor, the doctor had not prescribed the drug, and the patient did not ask the defendant to fill a prescription for the drug. Id. The district court held that
The Sixth Circuit first lookеd at the plain meaning of “use.” Id. at 626. “To ‘use’ a means of identification in this setting is ‘to convert to one‘s service’ or ‘to employ’ the means of identification.” Id. (brackets omitted) (quoting Webster‘s New International Dictionary 2806 (2d ed. 1942)). The court then highlighted that the statutory text does not suggest that “use” “refers only to assuming an identity or passing oneself off as a particular person.” Id. at 627. Finally, after reconciling its interpretation with other Sixth Circuit cases and distinguishing Medlock,2 the court turned back to the statute and reasoned that “[c]onsistent with the words of the statute, the question is whether the defendant used the means of identification ‘during and in relation to’ the predicate felony.” Id. at 628 (quoting
So too here. By inputting Spheeris‘s name and NPI number in the forms, Harris employed or used Spheeris‘s identification. And thаt use was “during and in relation” to the commission of wire fraud, as Harris used Spheeris‘s “identifying information to fashion a fraudulent submission out of whole cloth.” Id. This portion of Harris‘s scheme could not have succeeded otherwise, as Spheeris was not a participant in it. Harris did not merely inflate the scope of services rendered during an otherwise legitimate appointment; Harris manufactured entire appointments that never occurred. Indeed, Spheeris had never rеndered any services to the patients listed on the claim forms. Like one who fraudulently uses another‘s name and physical credit card or credit card number, Harris fraudulently used Spheeris‘s name and her NPI number. For these reasons, we hold thаt Harris‘s actions constituted “use” under the aggravated identity theft statute.3
We AFFIRM Harris‘s two aggravated identity theft convictions.