FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
PUERTO RICO [Hon. Carmen Consuelo Cerezo, U.S. District
Raymond L. Sanchez Maceira for appellant Cesar Berroa.
I. Bonini-Laracuente for appellant Julio Castro.
C. Andrews, with whom James M. Mason, Kathleen L. Taylor, and
Robert C. Andrews Esquire P.C. were on brief, for appellant
S. Mariani Franco for appellant Raysa Pacheco-Medina.
Shaughnessy for appellant Glenda Davila.
Tiffany V. Monrose, Assistant United States Attorney, with
whom Rosa Emilia Rodríguez-Vélez, United States
Attorney, and Nelson Pérez-Sosa, Assistant United
States Attorney, Chief, Appellate Division, were on brief,
Howard, Chief Judge, Selya and Lipez, Circuit Judges.
HOWARD, Chief Judge.
appeals arise out of a widespread corruption scandal at the
Puerto Rico Board of Medical Examiners (the
"Board"), the former licensing authority for
doctors seeking to practice in Puerto Rico. Cesar Berroa,
Julio Castro, Geraldo Castro, Raysa Pacheco-Medina, and
Glenda Davila all sought medical licenses but failed to pass
the required exams. Undeterred, they attempted to gain
certification by obtaining falsified scores. A federal
indictment and subsequent jury trial led to convictions on
various charges against each defendant.
appeals raise a litany of claims, and "[a]fter carefully
considering each of the defendants' contentions and
extensively reviewing the record, " we address only
those claims that are "worthy of discussion; the
remainder lack arguable merit." United States
v. Rose, 802 F.3d 114, 117 (1st Cir.
affirm the defendants' convictions for honest-services
mail fraud conspiracy, but reverse the convictions for money
or property mail fraud and aggravated identity theft, finding
the government's theories of prosecution on those counts
to be legally deficient.
five defendants sought admission to practice medicine in
Puerto Rico. The admissions process required applicants to
pass a pair of gatekeeping tests: a basic exam and a clinical
written exam. Applicants who achieved a minimum score of 700
on each of the two tests would then move on to a practical
skills exam. Upon passage of the practical skills exam and
completion of the remaining requirements, the Board would
issue a regular medical license.
government presented evidence that each of the defendants
failed to achieve the required 700 score on at least one of
the gatekeeping exams. As a result, they turned to Yolanda
Rodríguez, an employee at the Board who had access to
applicant files and the ability to create fraudulent score
results. The process was decidedly low-tech: Rodríguez
used a photocopier to superimpose passing scores of other
applicants onto the failing students' exam sheets. She
then placed the falsified exam sheets back into the
applicants' files. The trial evidence supported a finding
that each of the defendants' files contained a passing
score sheet falsified by Rodríguez. Armed with passing
scores, the previously unsuccessful applicants completed the
remaining requirements and entered practice as medical
doctors in Puerto Rico.
April 20, 2010, a federal grand jury handed up an omnibus
138-count superseding indictment against the five defendants
who have brought these appeals and a myriad of other
applicants. All five defendants were indicted for
conspiracy to commit honest-services mail fraud, money or
property mail fraud, and aggravated identity theft. The
government proceeded on consistent underlying theories for
all of the defendants: (1) that they joined in a conspiracy
to commit honest-services mail fraud in obtaining their
medical licenses; (2) that they committed mail fraud by using
the resulting licenses to practice medicine for financial
gain; and (3) that they committed aggravated identity theft
by issuing prescriptions to patients.
trial, the jury convicted the defendants as follows:
Berroa: mail fraud, honest-services mail fraud conspiracy,
and aggravated identity theft;
Julio Castro: mail fraud and honest-services mail fraud
Geraldo Castro: mail fraud and aggravated identity theft;
Pacheco: honest-services mail fraud conspiracy; and
Davila: honest-services mail fraud conspiracy.
Sufficiency of the Evidence
defendants now attack the sufficiency of the evidence
supporting their various convictions. These preserved
challenges garner de novo review. United States
v. Ridolfi, 768 F.3d 57, 61 (1st Cir.
2014). "Applying a familiar standard, we consider
whether any rational factfinder could have found that the
evidence presented at trial, together with all reasonable
inferences, viewed in the light most favorable to the
government, established each element of the particular
offense beyond a reasonable doubt." Id.
Money or Property Mail Fraud
Julio Castro, and Geraldo Castro appeal their convictions for
mail fraud in violation of 18 U.S.C. § 1341. This
provision proscribes use of the mails in furtherance of
"any scheme or artifice to defraud, or for obtaining
money or property by means of false or fraudulent
pretenses." Because we find insufficient evidence to
support the conclusion that the defendants obtained money or
property "by means of" their alleged fraud, we
reverse these convictions.
Supreme Court has squarely held that the mail fraud statute
is "limited in scope to the protection of property
rights." McNally v. United
States, 483 U.S. 350, 360 (1987). Before this ruling,
the statute had been used to prosecute "various forms of
corruption that deprived victims of 'intangible
rights' unrelated to money or property."
Cleveland v. United States, 531
U.S. 12, 18 (2000). McNally expressly curtailed this
use of § 1341. Congress later passed a new statute, 18
U.S.C. § 1346, designed to cover one of the intangible
rights recognized in the pre-McNally caselaw,
namely, "the intangible right of honest services."
Cleveland, 531 U.S. at 19-20 (quoting 18 U.S.C.
§ 1346). Here, the relevant counts of the indictment
allege a scheme to deprive the victims of money or property.
Accordingly, we restrict our inquiry to § 1341 for the
Supreme Court has broadly and unequivocally instructed that
"[s]tate and municipal licenses" generally "do
not rank as 'property, '" sufficient to support
a conviction under § 1341. Id. at 15. In
Cleveland, the defendants were alleged to have made
false statements in applications for state gaming licenses.
The Court began its analysis by explaining that any interest
the state had in the licenses was "regulatory, " as
opposed to proprietary, in nature. Id. at 20. It
noted the government's concession that many other state
licenses, including "medical licenses, " are
"purely regulatory." Id. at 22. But the
Court did not rest solely on the fact that the
government's theory of prosecution "stray[ed] from
traditional concepts of property." Id. at 24.
Rather, it went on to note that the government's
preferred reading of the statute would result in "a
sweeping expansion of federal criminal jurisdiction in the
absence of a clear statement by Congress." Id.
Indeed, "[e]quating issuance of licenses . . . with
deprivation of property would subject to federal mail fraud
prosecution a wide range of conduct traditionally regulated
by state and local authorities." Id. In short,
Cleveland squarely precluded the government from
seeking mail fraud convictions on the theory that the
defendants defrauded the Board out of some property interest
in the medical licenses.
cognizant of this restriction, the government charged a
scheme to "depriv[e] unsuspecting consumers of health
care services, health care benefit programs and health care
providers, of property and money through the
defendant[s'] knowing use of [their] fraudulently
obtained medical license[s]." More specifically, the
defendants allegedly used their fraudulent licenses to obtain
payment for medical services and issue prescriptions. They
continued to write prescriptions at least until about two to
three years after receiving their licenses.
effort to circumvent Cleveland, the government runs
headlong into another Supreme Court precedent.
Loughrin v. United States, 134
S.Ct. 2384 (2014), involved a prosecution under the bank
fraud statute, which prohibits schemes to obtain bank
property "by means of false or fraudulent
pretenses." 18 U.S.C. § 1344(2). The Court
described the statute's "by means of" language,
also present in § 1341, as a "textual
limitation" on its scope. Loughrin, 134 S.Ct.
at 2393. This limitation assuaged federalism concerns about
infringing on state criminal jurisdiction. Id. at
2392-93. The Court explained that "by means of"
"typically indicates that the given result (the
'end') is achieved, at least in part,
through the specified action, instrument, or method
(the 'means'), such that the connection between the
two is something more than oblique, indirect, and
incidental." Id. at 2393 (citing Webster's
Third New International Dictionary 1399 (2002); 9 Oxford
English Dictionary 516 (2d ed. 1989)). Accordingly, "not
every but-for cause will do." Id. Rather, the
"by means of" language requires that the
defendant's fraud be "the mechanism naturally
inducing a bank . . . to part with money." Id.
Here, the defendants' alleged fraud in obtaining their
medical licenses cannot be said to have "naturally
induc[ed]" healthcare consumers to part with their money
government correctly points out that Loughrin
interpreted the bank fraud statute, while this case involves
the separate prohibition on mail fraud. But, for aught that
appears, this is a distinction without a difference. To be
sure, these two provisions are not identical. See
id. at 2391 (holding that the bank fraud statute, unlike
the mail fraud statute, may be violated in two distinct
ways). The government, however, offers no explanation at all
for why the same "by means of" language should be
read differently in these two contexts. See Smith
v. City of Jackson, 544 U.S. 228, 233
(2005) ("[W]hen Congress uses the same language in two
statutes having similar purposes, . . . it is appropriate to
presume that Congress intended that text to have the same
meaning in both statutes."). In fact, to the contrary,
the very same federalism concerns underlying this
"textual limitation" in the bank fraud statute are
equally applicable to mail fraud. See Cleveland, 531
U.S. at 24 (noting resistance to reading which would effect
"a sweeping expansion of federal criminal jurisdiction
in the absence of a clear statement by Congress").
Indeed, the issuance of licenses and permits is
"traditionally regulated by state and local
authorities." Id. And medical licenses, much
like the gaming licenses at issue in Cleveland,
almost invariably are sought and obtained in an effort to
realize some monetary profit. Accordingly, under the
government's theory, virtually any false statement in an
application for a medical license could constitute a federal
crime. Such a broad reading of the statute would
impermissibly infringe on the states' "distinctively
sovereign authority to impose criminal penalties for
violations of" licensing schemes, "including making
false statements in a license application." Id.
at 23. Just as in Loughrin, the phrase "by
means of" serves as a textual limitation preventing such
a usurpation of state criminal jurisdiction.
dissenting colleague disagrees, suggesting that
Loughrin's reading of "by means of" in
the context of the bank fraud statute should not inform our
interpretation of the identical language in § 1341. But,
as the dissent readily concedes, the bank fraud statute was
expressly "modeled on" the pre-existing prohibition
on mail fraud. S. Rep. No. 98-225, at 378 (1983),
reprinted in 1984 U.S.C.C.A.N. 3182, 3519. Both
provisions "proscribe the conduct of executing or
attempting to execute 'a scheme or artifice to
defraud' or to take the property of another 'by
means of false or fraudulent pretenses, representations,
or promises.'" Id. (emphasis added).
Perhaps unsurprisingly in light of this legislative history,
other circuits have consistently applied precedents
construing § 1341 to the bank fraud statute. See,
e.g., United States v. Saks,
964 F.2d 1514, 1520 (5th Cir. 1992) ("It is well settled
that Congress modelled § 1344 on the mail and wire fraud
statutes, and that the usual practice is to look to
precedents under those statutes to determine its scope and
proper interpretation."); United States
v. Young, 952 F.2d 1252, 1255 (10th Cir.
1991) (noting that the two statutes contain "virtually
the same language"); United States v.
Mason, 902 F.2d 1434, 1441 (9th Cir. 1990)
("[T]he bank fraud statute directly tracks or is
parallel to the mail and wire fraud statutes."),
abrogated on other grounds by Dixon v.
United States, 548 U.S. 1 (2006).
dissent rejects this longstanding consensus, reasoning that,
while the mail fraud and bank fraud statutes employ
"equivalent language, " the lack of
"contemporaneous drafting" undermines any
presumption that Congress intended the phrase "by means
of" to have a similar meaning in both contexts. But we
have never imposed any requirement of "contemporaneous
drafting" to give rise to a presumption of similar
meaning where two statutes employ identical language and one
is expressly modeled on the other. We have, for example, held
that the wire fraud statute should be construed according to
our mail fraud precedents. See United States
v. Fermin Castillo, 829 F.2d 1194, 1198
(1st Cir. 1987). We reached this result despite recognizing
that the mail fraud statute was significantly
"older" than its wire fraud counterpart.
Id. Indeed, the substance of the federal prohibition
on mail fraud has been in place since 1909. See Act
of Mar. 4, 1909, ch. 321, § 215, 35 Stat. 1088, 1130-31;
see also Jed S. Rakoff, The Federal Mail Fraud
Statute (Part I), 18 Duq. L. Rev. 771, 821 n.225 (1980)
(characterizing post-1909 amendments as "chiefly
designed to remove 'surplus' language from the
statute"). The wire fraud statute was not enacted until
more than four decades later. See Communications Act
Amendments, 1952, ch. 879, § 18(a), 66 Stat. 711, 722.
In Fermin Castillo, rather than treating chronology
as dispositive, we noted that the wire fraud statute
"tracks" the language of § 1341. 829 F.2d at
1198. We also cited legislative history indicating that the
former provision was "patterned on" the latter.
Id. Each of these considerations applies equally to
the bank fraud statute.
dissent next takes the position that the federalism concerns
underlying Loughrin are not transferrable to the
mail fraud context. We disagree. Of course, the mail fraud
and bank fraud statutes are predicated on different
jurisdictional bases, but that does not mean that the scope
of the former provision is unlimited. Indeed, the Supreme
Court has expressly recognized that § 1341 "does
not purport to reach all frauds." Schmuck
v. United States, 489 U.S. 705, 710 (1989)
(citation omitted). Rather, it targets "only those
limited instances in which the use of the mails is a part of
the execution of the fraud." Id. (citation
omitted). The mail fraud statute also requires that the
fraudulent scheme seek to obtain money or property. See
Cleveland, 531 U.S. at 18; McNally, 483 U.S. at
of the dissent's preferred construction of "by means
of" would work "a sweeping expansion of federal
criminal jurisdiction." Loughrin, 134 S.Ct. at
2392 (quoting Cleveland, 531 U.S. at 24). The
present appeals provide a case in point. The government's
mail fraud allegations are entirely predicated upon the
falsification of test scores. With these falsified scores in
hand, and after completing certain other requirements, the
defendants received medical licenses. The Board mailed
letters indicating that the licenses were ready for pick-up.
Under Cleveland, the defendants had not yet
committed mail fraud. The government, however, contends that
the mail fraud charges are salvaged by evidence that, in the
ensuing years after becoming licensed, the defendants
practiced medicine for profit. The government points to no
additional instances of fraudulent conduct, instead falling
back on the defendants' "use of [their] fraudulently
obtained medical license[s]." Endorsing such a
prosecution theory would extend the scope of federal
jurisdiction to cover cases where the underlying fraudulent
scheme, and the mailing in furtherance thereof, is far
removed from any money or property. The Loughrin
Court's citation to Cleveland in discussing
these federalism concerns makes clear that they remain
relevant in the mail fraud context.
dissent relies in large part on a string of cases refusing to
read a so-called "convergence" requirement into the
mail fraud statute. But this is a distinct issue from the
causal nexus required under Loughrin. Our decision
in United States v. Christopher,
142 F.3d 46 (1st Cir. 1998), illustrates the point. In that
case, the defendant argued that, in order to constitute wire
fraud, the alleged scheme had to "deceive the same
person whom it deprive[d] of money or property."
Id. at 52-53. We rejected this reading of the
statute in Christopher, and we impose no such
requirement in these appeals. Rather, our reversal of the
money or property mail fraud convictions is based on the lack
of a sufficiently direct causal nexus to satisfy
Loughrin. In Christopher, after disposing
of the convergence argument, we proceeded to address the
separate issue of causation. See id. at 54; see
also United States v. Frost, 125 F.3d
346, 360 (6th Cir. 1997) ("[E]ven the cases which have
held that convictions may rest upon the deceit of a person
other than the ultimate victim contemplated that the
deception was causally related to the scheme to obtain
property from the victim."). In that case, we found
"the causal connection between the deception and the
loss of property" to be "obvious."
Christopher, 142 F.3d at 54. This characterization
was justified by the facts of the case at hand, which were
very different from those at issue here. The defendant was
convicted for making misrepresentations to insurance
regulators in connection with his acquisition of two
companies. More specifically, he assured regulators
"that the collateral liens would be paid off by the time
of closing, and that assets of the acquired companies would
not be used for the purchase." Id. at 49. But,
after closing, the acquired companies "loaned"
money to satisfy the liens. Id. Similarly, cash
belonging to one company was used to pay its purchaser.
Id. The wire fraud charges were predicated on these
two categories of payments. See id. at 50-51. Thus,
the transfers through which the defendant realized the
required monetary benefit directly contradicted his prior
statements to regulators. In the parlance of
Loughrin, the defendant's lies "naturally
induc[ed]" the resulting benefit. 134 S.Ct. at 2393. As
discussed above, the causal connection is much more
attenuated in the present case. The other precedents cited by
the dissent on this point, like Christopher, deal
primarily with the convergence issue, not the required causal
connection between the fraud and the obtainment of money or
property. In any event, to the extent that these
out-of-circuit decisions could be read to be inconsistent
with Loughrin, we are bound to follow the standard
imposed by the Supreme Court.
to the dissent's suggestion, Loughrin's
interpretation of "by means of" did not impose a
convergence requirement like the one we rejected in
Christopher. Indeed, the Court expressly recognized
the possibility of bank fraud convictions in cases where the
fraud never actually reaches a bank. It explained that
"the clause covers property 'owned by' the bank
but in someone else's custody and control . . .; thus, a
person violates § 1344(2)'s plain text by deceiving
a non-bank custodian into giving up bank property that it
holds." Loughrin, 134 S.Ct. at 2389. To be
sure, the Loughrin Court ultimately held that, in
the specific context of bank fraud, "by means of"
requires a "false statement [that] will naturally reach
[a federally insured] bank (or a custodian of the bank's
property)." Id. at 2394 n.8. But, in contending
that our application of Loughrin to § 1341
imposes a convergence requirement, the dissent overlooks its
own warning that "what relationships count as close
enough to satisfy the phrase 'by means of' will
depend almost entirely on context." Id.
Generally speaking, "by means of" requires "an
inquiry into the directness of the relationship between means
and ends." Id. In its initial discussion of the
phrase, the Loughrin Court relied upon dictionary
definitions. After citing these generally applicable sources
of meaning, the Court concluded that, in order to satisfy the
bank fraud statute, the false statement must be "the
mechanism naturally inducing a bank (or custodian of bank
property) to part with money in its control."
Id. at 2393. It is the specification that the fraud
target bank property, not the widely applicable
"naturally inducing" standard, that makes context
relevant. The Court's rejection of the "Little
Bobby" hypothetical posited by Justice Scalia
illustrates the point. In the hypothetical, "Bobbly
falsely tells his mother that he got an A on his weekly
spelling test and so deserves an extra cookie after
dinner." Id. at 2396 (Scalia, J., concurring).
Bobby's mother, who will not be home for dinner, leaves a
note for Bobby's father indicating that Bobby should get
an extra cookie. According to Justice Scalia, when Bobby
receives his cookie, he has done so "by means of the fib
to his mother." Id. We agree that, in these
circumstances, Bobby's false statement "naturally
induc[ed]" his father to give him an extra cookie. And
the Loughrin majority did not dispute the point.
Rather, it responded by citing the importance of context and
concluded that, in the bank fraud statute, "by means
of" is "best read" to include only those
frauds in which the false statement will reach a bank, either
directly or indirectly. Id. at 2394 n.8. Of course,
this specific application could not possibly apply to all
uses of the phrase "by means of."
light of the above analysis, there was insufficient evidence
to support the defendants' convictions for money or
property mail fraud. Because we find the government's
theory legally deficient, we must reverse these convictions.
Honest-Services Mail Fraud Conspiracy
government also charged the defendants with conspiracy to
commit honest-services mail fraud. See 18 U.S.C.
§§ 371, 1341, 1346. The four defendants convicted
on these counts now appeal. Because we find sufficient
evidence to support the convictions, we affirm.
core, a conspiracy is "an agreement between two or more
persons to accomplish an unlawful purpose." United
States v. Dellosantos, 649 F.3d 109, 115 (1st Cir.
2011). A conviction for general conspiracy, 18 U.S.C. §
371, "requires proof that the defendant agreed to commit
an unlawful act and voluntarily participated in the
conspiracy, and that an overt act was committed in
furtherance of the conspiracy." United States
v. McDonough, 727 F.3d 143, 156 (1st Cir.
2013). While we have described the presence of an agreement
as the "sine qua non of a conspiracy, "
Dellosantos, 649 F.3d at 115, "[t]he agreement
itself need not be express, but may consist of no more than a
tacit understanding, " United States
v. Echeverri, 982 F.2d 675, 679 (1st Cir.
1993) (citation omitted). And to meet its burden, "[t]he
government need not show that each conspirator knew of or had
contact with all other members. Nor need it show that the
conspirators knew all of the details of the conspiracy or
participated in every act in furtherance of the
conspiracy." United States v.
Soto-Beníquez, 356 F.3d 1, 19 (1st Cir.
the government charged a conspiracy to commit honest-services
mail fraud, a specific type of mail fraud involving a scheme
"to deprive another of the intangible right of honest
services." 18 U.S.C. § 1346. The Supreme Court has
held that this statute only criminalizes schemes involving
bribes or kickbacks. Skilling v. United
States, 561 U.S. 358, 412 (2010); see also United
States v. Urciuoli, 613 F.3d 11, 17
(1st Cir. 2010) ("[T]hose who bribe public officials
take part in a scheme to deprive the public of the honest
services of those they attempt to influence."). In the
case at hand, the government specifically alleged that the
defendants conspired to deprive the Board of
Rodríguez's honest services.
defendants' sufficiency of the evidence challenges to the
honest-services fraud convictions need not detain us long.
The trial evidence was sufficient for the jury to find the
following facts. Julio Castro, Pacheco, and Davila all failed
at least one of the required admissions exams. They later
knowingly provided something of value to Rodríguez
(through an intermediary) in exchange for falsified passing
scores. Finally, use of the mails (e.g., mailing of letters
indicating that the licenses were ready for pick-up) was a
foreseeable element of the scheme. See, e.g.,
United States v. Pimental, 380
F.3d 575, 589 (1st Cir. 2004) (holding that a defendant need
not personally mail anything, so long as the "'use
of the mails' in the course of the scheme" is
"reasonably foreseeable" (collecting
argues that the alleged overt act, namely, the act of
physically receiving medical licenses from the Board, fell
outside the scope of the conspiracy. This argument fails
because "[a] conspiracy endures as long as the
co-conspirators endeavor to attain the 'central criminal
purposes' of the conspiracy." United States
v. Upton, 559 F.3d 3, 10 (1st Cir. 2009)
(quoting Grunewald v. United States, 353 U.S. 391,
401 (1957)). The government maintained throughout trial that
the conspiratorial object of each defendant was fraudulently
to gain a medical license, not merely to obtain a passing
exam score. This is hardly a stretch, as a passing score on
the threshold tests alone has only incremental value. We
decline to overturn the jury's finding that Pacheco's
receipt of her medical license was an act within the scope
and timeframe of the conspiracy. See id. at 11
("Determining the contours of the conspiracy ordinarily
is a factual matter entrusted largely to the jury.").
Aggravated Identity Theft
and Geraldo Castro also challenge their convictions for
aggravated identity theft. In order to meet its burden on
this charge, the government was required to show that each
defendant "knowingly transfer[red], possesse[d], or
use[d], without lawful authority, a means of identification
of another person" and did so "in relation" to
one or more specified crimes, including mail fraud. 18 U.S.C.
§ 1028A(a)(1), (c). The term "means of
identification" is defined broadly to include names.
Id. § 1028(d)(7). Where the necessary showing
is made, "a term of imprisonment of 2 years" is
added to the punishment for the underlying offense.
Id. § 1028A(a)(1). In the present case, because
we find insufficient evidence that the defendants
"used" a means of identification within the meaning
of the statute, we reverse the identity theft convictions.
the course of their medical practices (utilizing fraudulently
obtained licenses), both defendants issued prescriptions that
their patients would then fill at various pharmacies in
Puerto Rico. The government alleges that the use of patient
names and addresses on the prescriptions constituted use
without lawful authority of the identification of another
support of this argument, the government focuses on the
absence of "lawful authority." We have held that
this statutory element does not "require that the means
of identification be stolen, or otherwise taken without
permission of the owner." United States
v. Ozuna-Cabrera, 663 F.3d 496, 498 (1st
Cir. 2011). In reaching this result, we drew a distinction
between the terms "authorized" and
"lawful" to conclude that "regardless of how
the means of identification is actually obtained, if its
subsequent use breaks the law . . . it is violative of §
1028A(a)(1)." Id. at 499. Here, the government
reasons, the patients' consent to the inclusion of their
names in the prescriptions is not dispositive. Such use was
rendered unlawful by the fact that the defendants'
medical licenses were obtained by fraud. Moreover, the
patients could not provide knowing consent because they were
unaware of the underlying fraud. Ultimately, we need not
resolve these issues. The government's proof was
insufficient to satisfy the separate requirement that the
defendants knowingly "used" the patient
Supreme Court has recognized that the word "use" is
fraught with "interpretational difficulties because of
the different meanings attributable to it."
Bailey v. United States, 516 U.S.
137, 143 (1995), superseded by statute on other
grounds, 18 U.S.C. § 924(c)(1). "Use" has
been "variously defined as '[t]o convert to
one's service, ' 'to employ, ' 'to avail
oneself of, ' and 'to carry out a purpose or action
by means of.'" Id. at 145 (alteration in
original). The statute at issue here fails to provide a
specific definition. And, in context, "use" cannot
be given its broadest possible meaning, which would subsume
the separate statutory terms "transfer" and
"possess." See United States v.
Miller, 734 F.3d 530, 541 (6th Cir. 2013).
Accordingly, we find the statutory language ambiguous. The
Sixth Circuit has reached the same conclusion. See
id. at 540-41.
next to legislative history. The relevant House Report makes
clear that the legislation was intended to address "the
growing problem of identity theft." See H.R.
Rep. No. 108-528, at 3, reprinted in 2004
U.S.C.C.A.N. 779. The report goes on to provide several
examples of identity theft. Notably, each of these examples
involved the defendant's use of personal information to
pass him or herself off as another person, or the transfer of
such information to a third party for use in a similar
manner. See id. at 5-6, 2004 U.S.C.C.A.N. at 781-82
(e.g., submission of "bogus Federal income tax
returns" in others' names; use of "stolen
identity to apply for and receive Social Security
benefits" and "establish credit"). The facts
of Ozuna-Cabrera, where the defendant presented
another person's expired passport in an attempt to obtain
a valid passport under that person's name, falls
comfortably within this understanding of identity theft.
See 663 F.3d at 497. By contrast, the purported
"use" of patient information alleged here strays
far afield from the conduct targeted by Congress. While, in a
colloquial sense, Berroa and Castro could be said to have
"used" their patients' names in writing
prescriptions, they certainly did not attempt to pass
themselves off as the patients.
government's reading of the statute is virtually
unlimited in scope. Indeed, if, as the government implies,
"use" of a "means of identification" is
to be given its broadest possible meaning, it could encompass
every instance of specified criminal misconduct in which the
defendant speaks or writes a third party's name. See
United States v. Spears, 729 F.3d 753,
756 (7th Cir. 2013) (warning, in interpreting the statutory
language "another person, " that the
government's reading would "require a mandatory
two-year consecutive sentence every time a tax-return
preparer claims an improper deduction"). We will not
lightly presume that Congress intended this extreme result.
light of § 1028A's legislative history, as well as
the limitless nature of the government's alternative
construction, we read the term "use" to require
that the defendant attempt to pass him or herself off as
another person or purport to take some other action on
another person's behalf. Our holding on this point is
consistent with that of the only other circuit to have
addressed the issue. See Miller, 734 F.3d at 541
(reversing convictions where the defendant "did not
steal or possess [others'] identities, impersonate them
or pass himself off as one of them, act on their behalf, or
obtain anything of value in one of their names"
(footnote omitted)); United States v.
Medlock, 792 F.3d 700, 705 (6th Cir. 2015)
(rejecting the government's argument that the defendants
"'used' the name and Medicare Identification
Numbers of Medicare beneficiaries" when they submitted
claims containing false statements).