please correct me everyone should have their name pronounced correctly i'll stick to your honor mr clean and i parsed i want to say it's good that you're here today understand that the weather is quite  odd mr clue argues that the application that enhancement was not appropriate because he did not use a means of identification to produce or obtain yet another means of identification the basis for the enhancement according to the p in mr clues case was that his use of individuals medicare numbers resulted in a unique quote unquote unique medicare claim number being created in house at the medicare system we ever held that intent is required for the use of i d s to make their i d s and handsome and i don't believe you have your honor and i'm not perhaps i wasn't clear my brief i'm not arguing about the intent issue and i'm arguing that he didn't produce and he we specifically identified identified the word identification towns kind of funny but how we defined identify case identification in a way that would help your argument that this wasn't truly a pirating of someone else's identity i'm not aware of the court having specifically defined an identification such as a driver's license or passport i mean to be more specific identity could be  a number that's assigned or it could be a photograph or a a digital system are or swipe card or something of that sort so there is a bunch of things that we could today under today's technology be considered an identifying subsection focuses principally on an aggravated formal identity theft known as affirmative identity theft or breeding in which a defendant uses another individual's name social security number or some other form of identification to breed i e produce or obtain new for additional forms so mr collude did not produce this number i don't think there's any dispute about that it was medicare created number and he didn't obtain the number again medicare use that in house to pay the claims he pleaded guilty to the health care fraud conceivably could be but again he did not produce that number he did not obtain that number so even if if the court decides that this is a means of identification under the statute oh hav said he didn't try to travel with it i don't think that's the testament he had a bank account number be good enough correct you can't travel with a bank account number i was perhaps be able to flip and judge i agree that there are other means  department to report a loss of identity documents an office report is created that has a unique number on it so in that case this isn't enhanced it would apply to every single individual charged under the statute is yet another potential means of identification under the statute and so in every case that is brought before a court a federal district court charging the softens is going to have that case number and therefore the incident would apply as well subsection b eleven c small law of the talks about how defendant who uses a credit card from a stolen wallet to make a purchase does not qualify because that defendant has not used a credit card to obtain another means identification yet that credit card transaction is going to have a unique transaction identifier and so there seems to be some contradiction if the government's position is applied the credit card creates that same unique number in that transaction as the medicare the false medicare claim created in house in the medicare system and so if it doesn't that the enhanced doesn't apply to collude and used a credit card to try to obtain something  value because of the in house number applied in the credit card company i would argue that i do argue that it should not apply for the creation of a claim number in house in the health care insurance industry really just have a hard account is something the defendant obtained the defendant when in use the fake person's identification to open a bank account and thus had use of the bank account i think that's different then a medicare claim number where mr his cohorts had no idea what the number was were not interested in them or just wanted the money that was going to be paid from the number so the bank account is something of value a means of identification that the defendant specifically intended about the medicare beneficiaries identification number i'm talking about the claim number assigned to a particular particular submission for a supposed procedure that obviously wasn't performed in this case that number mr kalu and his cohorts were not aware of the creation of number they never they weren't interested in that number i don't even think they received that number let's assume for the sake of argument that it was forseeable that when he submitted whatever documentation or information he had using the real name of the patient it was certainly forseeable that a number was going to be assigned are we talking about the number of the specific claim which is paid and then not really used or is it a number assigned to the patient and every claim thereafter that submitted will be under that number it's under it's a specific claim number so if the person if the misbegotten submitted submitting the claim waiting for the check one medicare processing center could conceivably assign a number to it another one can assign a different number those are not things that he produced or he obtained those are things that did not he did not use them in other criminal activity the tip of the criminal activity at issue had already started and been completed that except for the pain in the check so the bank account the difference with the bank account is it can be used for a variety of different things including  listing it as an asset on other loan documents a medicare claim number for a specific false claim of a broken arm for example can't be used for anything other than that specific payment of that specific claim what about a mortgage long number said it can't be used for other things it's not you can't trade it on the open market can't go to things with it that's uniquely tied to the mortgage loan but a mortgage loan number conceivably could be used for other purposes again listing that on a financial statement showing that you have received credit from another financial institution could bolster your ability to scam someone else and the medicare i'm sorry can solace case out of the th circuit which appears to be directly on point i agree it's a difficult case i think that was i think the facts of that case are a little different and i do think it was a mistake unless the diff and i'm just going by the plain language of the guidelines commission and unless the defendant  secondary number unless the defendant obtained that secondary number the enhancement should not apply mr kalu did not produce that medicare claim number and he did not obtain that or seat up to that medicare premium and so i would argue that the six circuit decision is yes putting it diplomatically not applicable here but i do think that was incorrectly decided also thank you and if there are no other questions all o that would be a problem to be one point one is quite a broad guideline it covers not just health care fraud it covers fraud globally it covers larceny it covers all sorts of property offenses and it's not unusual for particular provision of a broad guideline to apply across the board to particular offenses indeed in i believe to be three dollars the guideline applies in every instance of bank robbery because i believe there's a two there's a two meant for an offense that involves a an offense that involves a nationally charter financial institution or something like that so any crime that's prosecuted under the federal bank robbery statute would satisfy that guideline so i don't think there's a double counting problem i don't think there's any sort of inher definition means of identification that are of the defendant himself that are of fictitious people or that are of the individuals for whose conduct the defendant would be accountable under the relevant conduct guideline so i don't think it would necessarily apply in every single health care fraud but i do think it would apply in the mine run of health care fraud cases and i don't think that's an inherent problem is there anything about the numbers involved in this case that are unique or correspond necessarily to the individual t patient or any other person or are they just numbers that are either she quencher away or randomly assigned when a claim comes in for payment you are it's the latter the numbers themselves don't have any particular association with the beneficiary but i don't think that makes a may i'd like it like to explain for just a moment why it makes sense that medicare beneficiaries can be treated as victims in a scheme like this where the way the c m a system works i'm happy to go into detail on it but the bottom line is that when a medicare benefits are actually needs that claim is going to bounce if the secondary treatment is incompatible with the original treatment that beneficiaries being billed for so for example in this case this case involves home health services if the defendant beneficiary is fraudulent lee billed for home health services and then later tries to seek say outpatient physical therapy the claim is going to bounce because to receive home health service you have to be certified as home and so then it's not going to be able to receive a patient physical therapy that's precisely the kind of thing they were concerned with if you look at the background it says an additional harm that this guideline is concerned with targeting are the non monetary harms associated with breeding offenses those are the kinds of problems that are created in this case and that's why the government's admits this actually is a sound application  of this guideline one final point if i may of course happy to take any additional questions a colleague on the other side was discussing the fact that i think the i think the heart of his argument before this panel now is mr clue i am just arguing that in the is this particular case the medicare claim number doesn't qualify as the secondary means of identification and that he did not produce or obtain that number i'm not asking the court to craft some sort of broad statement about what does constitute a secondary means of a dedication or what does not i do think the court in this case it is responsible for crafting or at least addressing the produce or obtain element of the institution that's not federally insured but in this case simply because a defendant gets a cause number in the us from the us district clerk this and his men applies it would be impossible for this case for this inherent to not apply but the bars and case does seem to require that those co actors in the crime are actually victims why isn't the p s r recording them that i'm confused about and i don't is that there's no victims and how can the enhancement  be applied i mean the kid that the victim the p s r contra p s o and i will tell you that your colleagues in the district bench are seem to be concerned about this in increasing numbers because the victim section says medicare is the victim of the and that has that been considered in any of our cases in that that is too specific i know there are a number of judges in the southern district texas that are rejecting that enhancement now so they reject it because they're only victimless it is medicare and medicare is cannot be the