United States v. Sheila Harris ( 2020 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-10006
Plaintiff-Appellee,
D.C. No.
v. 1:17-cr-00001-HG-1
SHEILA HARRIS,
Defendant-Appellant. 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
Before: J. Clifford Wallace, Carlos T. Bea, and
Mark J. Bennett, Circuit Judges.
Opinion by Judge Bennett
2 UNITED STATES V. HARRIS
SUMMARY *
Criminal Law
The panel affirmed convictions on two counts of
aggravated identity theft under 18 U.S.C. § 1028A in a case
in which the defendant, the owner and operator of a business
that provided therapeutic services, fraudulently billed a
government health care program for speech therapy services
provided to children of military families.
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 therefore constituted
“use” of another’s identification under § 1028A.
The panel addressed the defendant’s other challenges in
a concurrently filed memorandum disposition.
* This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
UNITED STATES V. HARRIS 3
COUNSEL
Ronald W. Chapman II (argued), Chapman Law Group,
Troy, Michigan, for Defendant-Appellant.
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 aggravated 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 18 U.S.C. § 1028A should
be reversed because her conduct did not amount to “use” of
another’s identification under the statute. 1
We have jurisdiction under 28 U.S.C. § 1291 and affirm.
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. Harris contracted with
1
We address Harris’s other challenges in a concurrently filed
memorandum disposition.
4 UNITED STATES V. HARRIS
TRICARE, a government health care program for military
members, military retirees, and their families, to provide
services to TRICARE beneficiaries.
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 claims 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 counts 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
UNITED STATES V. HARRIS 5
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
Harris 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, 18 U.S.C. § 1028A.
This is a statutory interpretation argument that we review de
novo. United States v. Hong, 938 F.3d 1040, 1050 (9th Cir.
2019).
III. DISCUSSION
Under 18 U.S.C. § 1028A(a)(1), “[w]hoever, during and
in relation to any felony violation enumerated in
subsection (c), knowingly . . . uses, without lawful authority,
a means of identification of another person shall, in addition
to the punishment provided for such felony, be sentenced to
a term of imprisonment of 2 years.” It is undisputed that the
wire fraud Counts 1 and 7 qualify as predicate felonies
“enumerated in subsection (c),” that Spheeris’s name and
NPI number are “a means of identification of another
person,” and that Harris had no “lawful authority” to use
Spheeris’s name and NPI number. Thus, the only issue is
whether Harris used Spheeris’s name and NPI number
“during and in relation to” the commission of wire fraud.
6 UNITED STATES V. HARRIS
We have addressed the meaning of “use” under § 1028A
in two cases. In Hong, we held that the defendant’s actions
fell outside the statute. 938 F.3d at 1049–51. We reached
the opposite conclusion in United States v. Gagarin,
950 F.3d 596, 604 (9th Cir. 2020).
In Hong, the defendant owned several massage and
acupuncture clinics. 938 F.3d at 1044. 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 ambulance 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 § 1028A because the
defendants “did not attempt to pass themselves off as anyone
other than themselves. [They] misrepresented how and why
the beneficiaries were transported, but they did not use those
beneficiaries’ identities to do so.” Medlock, 792 F.3d at 707.
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’
information under the statute because he never “attempted to
UNITED STATES V. HARRIS 7
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 patients 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 Hong’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 § 1028A. 950 F.3d at 603–04. Gagarin
prepared a fraudulent insurance application by twice forging
her cousin’s signature. Id. at 603. We reasoned that, unlike
the defendant in Hong who had “merely misrepresented the
nature of treatment that actual patients of his received,” id.,
“Gagarin ‘attempted to pass herself off’ as her cousin
through forgery and impersonation,” id. at 604 (brackets
omitted) (quoting Hong, 938 F.3d at 1051). And Gagarin’s
“use of [her cousin’s] means of identification was . . . central
to the fraud and ‘furthered and facilitated’ its commission.”
Id.
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
8 UNITED STATES V. HARRIS
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. See
Gagarin, 950 F.3d at 603 & n.1. Michael applied § 1028A
to circumstances nearly identical to those here, and we agree
with its reasoning.
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 § 1028A covered only
impersonation and dismissed the aggravated identity theft
count before trial, and the government appealed. Id. at 626.
The Sixth Circuit reversed, holding that a jury could find that
the defendant “used” the doctor’s and patient’s identifying
information under § 1028A. Id. at 626–27.
The Sixth Circuit first looked 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
UNITED STATES V. HARRIS 9
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
18 U.S.C. § 1028A(a)(1)). Thus, “[t]he salient point is
whether the defendant used the means of identification to
further or facilitate the health care fraud.” Id. Under this
interpretation, the court held that, as alleged, the defendant
used the doctor’s and patient’s “identifying information 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.” Id. at 629.
So too here. By inputting Spheeris’s name and NPI
number in the forms, Harris employed or used Spheeris’s
identification. And that 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 rendered any
services to the patients listed on the claim forms. Like one
2
The Sixth Circuit distinguished the circumstances in Michael from
those in Medlock: “In Medlock, the health care fraud was
‘misrepresent[ing] how and why the [patients] were transported.’ The
defendants did not use patient names ‘during, in relation to, or for the
purpose of helping to commit’ that felony because they really did
transport those patients. They legitimately listed patient names in
rendering the services underlying the submission.” Michael, 882 F.3d
at 628–29 (alterations in original) (citations omitted).
10 UNITED STATES V. HARRIS
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 that Harris’s actions constituted “use” under the
aggravated identity theft statute. 3
IV. CONCLUSION
We AFFIRM Harris’s two aggravated identity theft
convictions.
3
The government also charged Harris with aggravated identity theft
for using the identifications of the patients, J.B. and K.H. Harris signed
the claim forms on behalf of the patients, signifying that the patients had
requested payment of benefits to Harris Therapy. Because neither party
has addressed whether this conduct constitutes “use” under § 1028A,
neither do we.