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United States v. Berroa

United States Court of Appeals, First Circuit

May 5, 2017

UNITED STATES OF AMERICA, Appellee,
v.
CESAR BERROA; JULIO CASTRO; GERALDO CASTRO; RAYSA PACHECO-MEDINA; and GLENDA DAVILA, Defendants, Appellees.

         APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. Carmen Consuelo Cerezo, U.S. District Judge]

          Raymond L. Sanchez Maceira for appellant Cesar Berroa.

          Rosa I. Bonini-Laracuente for appellant Julio Castro.

          Robert C. Andrews, with whom James M. Mason, Kathleen L. Taylor, and Robert C. Andrews Esquire P.C. were on brief, for appellant Geraldo Castro.

          Raul S. Mariani Franco for appellant Raysa Pacheco-Medina.

          David 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, for appellee.

          Before Howard, Chief Judge, Selya and Lipez, Circuit Judges.

          HOWARD, Chief Judge.

         These 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.

         The 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. 2015).[1]

         We 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.

         I. Facts

         All 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.

         The 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.

         On 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.[2] 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.

         After trial, the jury convicted[3] 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 conspiracy;
Geraldo Castro: mail fraud and aggravated identity theft;
Pacheco: honest-services mail fraud conspiracy; and
Davila: honest-services mail fraud conspiracy.

         II. Sufficiency of the Evidence

         The 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. (citation omitted).

         A. Money or Property Mail Fraud

         Berroa, 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.

         The 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 time being.

         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.

         Presumably 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.

         In its 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."[4] 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 years later.

         The 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.

         Our 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).

         The 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.[5]

         The 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 360.

         Adoption 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.

         The 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.[6]

         Contrary 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."

         In 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.

         B. Honest-Services Mail Fraud Conspiracy

         The 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.

         At its 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. 2003).

         Here, 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.

         The 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 cases)).[7]

         Pacheco 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.").

         C. Aggravated Identity Theft

         Berroa 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.

         During 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 person.

         In 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 information.

         The 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.

         We turn 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.

         The 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.

         In 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.[8] 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).

         III. Other ...


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