written on that question but here the district court got it a little bit wrong we've the court has not ever adopted the broadest definition of the word used in that statute but by the same token the court has never adopted the most narrow view of the word use which is the view that the district court took in this case this court adopted the definition of the pattern jury instruction in united states versus medlock and that instruction says that use means active employment of someone else's identity this court says has said that the defendant can act on someone's b half can impersonate the person but doesn't have to can act on their behalf or do something to get something of value in that person's name in this case we have a pharmacist who presented  completely false claim to an insurance company for a prescription the doctor did not authorize the prescription the patient did not request the prescription and did not request that an insurance claim be made on his behalf the pharmacist here but what do we do about you know some of our cases maybe it's medlock maybe it's miller maybe even white too says well it doesn't apply when you lie about what someone did right you  didn't happen so i'm just saying if you look at our cases and that that analytical point appears in them and i think they're trying to use that in a little point here so what do we do about that there that's the very mistake the district court made here ok that is not the law that's not what this court has adopted in this court made perfectly clear and medlock that that is not the law the court said it doesn't matter whether you act on somebody else's behalf or act on your birth behalf or lie about what someone else did the question is did you use their identity to get something that you wouldn't have been entitled to without using their identity isn't that exactly what happened in the law it is not wrong in that case patients were being carried on stretchers in order to get the plane and that was what the bark were nevertheless held that that was not a violation of the statute that's because that they were already using the identifications in a legal manner they were already the identities were on the forms for the transportation that the this company provided for those patients what they did with those forms is they then inflated the of their services that they provided to get more of a recovery than they would have gotten the prostate it was but this court made that distinction that their names are already on the they didn't have to use their names to inflate the claim they hadn't submitted the names they wouldn't have gotten the claims they would know they wouldn't have but by the same token in medlock this court affirmed account where the defendant submitted a completely false conny they had transported this patient at all a doctor had not authorized the transportation which is in contrast to the other  was found not to be aggravated identity theft instead the claim was completely false and mrs medlock having bad luck i think it was forged the doctor signature in this case michael used the doctor's physician's national provider identification number in place of a signature everything's done on computers these days you don't need a signature you need to type in that number and that's as much an identification of that dr as the forge signature was in mid lock similarly in miller when a claim was made for plane tickets at a discounted rate way i'm sorry that was the ticket for that person in just lied about the discount they were entitled to when she tried to show up that law with creating a completely false identification military identification is what it was that was the aggravated identity theft in here we've got that situation the situation of the fan count matlock the situation of your firm  in white where this doctor the pharmacist excuse me presented a completely false claim for a prescription using the doctor's identification using the patien identification and was completely for what i've these cases are very hard to read a bit terms of pulling them all together whether you focus on the analytics or you focus on outcomes in fact patterns let me try one out on you for both of you as a way to think about it in one sense every one of the cases involves means of identification in every case involves a lie and yet they don't all allow these things to be established agonize about claims what about focusing not on use in means of identification but focusing on during and in relation to so for example you know you could say if you go back to med lock in that case the the lie and you're kind of pointing this out the law isn't about these people being transported the law isn't about you know who they were that they whether they were transported or not the lie was about whether it was an emergency and that has nothing to do that's not during and in relation to use of means of identification for the fraud is that i guess the point i'm getting at words in why you kind of can say the same thing and i like the way you put it initially you would not have a claim you wouldn't have a cognizable claim by the application for the reduced fare it's just like matlock at that point there are real people they really are asking for airfare you just had to lie about what kind of airfare they deserve it only becomes use of the means of identification during and in relation to a fraud when they doctor the id but the point is it's it's not used to focus on it's not even means of identification it's stirring in a relationship so it's almost a causation point how does that does that reconcile the cases or not i think it's a good start let me try to if i can your lots of judgment if you're familiar with me you think i'm setting a trap for you i can already tell i'm not at all just not enough i think that may be dovetailed nicely into this course adoption of the pattern jury instruction in med lock in the during in relation to here the was the entire claim was false so this wasn't i'm submitting a claim for fifty pills and i'm going to inflate it to one hundred exactly that's the analogy to mad luck and that's what i want to hear from your side that if it were if it were if it were like mad luck it would be initially it's fifty pills the right doctor it's the right patients the right pharmacist and the fraud becomes the taking it two thousand pills or higher a better identity of a patient used his identification birth date and other identification you know insurance number that kind of thing took the identity of the doctor his name and his national provider identification number to submit this false claim so he enduring in relation to this completely false claim he used these identities and that is our  argument in a nutshell so that's we asked the court to reverse a district over here my locker tells me there's not a lot of these cases around the rest of the country the sixth circuit it seems as if why do we have all these cases and no one else does i mean what's happening with this type of problem elsewhere do you know are people just not challenging it as far as i mean i didn't do extensive research on that and ask others i was i mean this is completely out of the records  on the use like this court has the two cases that we cited in our opening brief focused more on theft stolen identity did they have to steal it but those fact patterns were similar to ours at least the case and then in our reply brief we cited that unpublished nation the eleventh circuit jones that dubbed directly with this question of whether the defendant  perpetrated the crime must pass himself off or impersonate the person whose identity was stolen and the eleventh circuit said no that is not required proof or say use only means and person nation no is actually the defendant's definition in terms of three different ways to to use someone's identification only one of which was actually personating the person so one note that isn't an element of the crime even if it was you can make an argument here that michael impersonated he had to impersonate the patient the doctor and then present himself so he was representing self as all three people start by giving the court a little bit of context of what's what the government is alleging in this case it was a single claim in which mr mike dahl submitted to humana a request for reimbursement for a cholesterol medicine and non controlled essentially prescription fish oil medication the reimbursement amount was for one hundred ninety nine dollars and fifty seven cents so just for a little context about what the issue is we're talking here like in miller mr michael didn't impersonate anybody he didn't pretend to be somebody he was not the claim was submitted as mr michael pharmacist for any type says as any case besides the lower court in this case use all means impersonation i think miller well miller  miller argues adopts the fact that the use is ambiguous and kind of adopts the defendant's position in that case where but it doesn't hold that on behalf of acting on behalf of is a matter what miller halts is that as a matter simply submitting a piece of paper with individuals names on it signed by the defendant doesn't constitute use under the aggravated identity statute in the way i w was trying to think about it is it really is helpful to think of during in relation i mean so medlock to me is the key case right i mean they vary the the people were transported they really were transported there and the fraud was lying about what the service was in upgrading the service which doesn't relate to use of means of identification because they were really transported and so here what would make this like med lock would be a case where there really were prescriptions for a certain drug by real people and real doctors and the fraud was to change it for a different drug that has a higher reimbursement that would be a fraud but like my block it would be using means of identification for the fraud because the fraud would be upgrading the drug or service you want reimbursement for but that strikes me is what med locks insight is you've got a connect the misuse of means of identification to the fraud that's where during in relation come to but here this is fraud from the beginning and fraud with the doctor's id and fraud with the patient's name birthday to cetera that's what i'm that's why i thought my med luck is the best case for you from my perspective but that's how i see it here which it does hurt would hurt you that we're right men like should be looked at as an authorization case and so in this case we're out looking at what the government has argued is that the submission of the claim entirely false claim that's the underlying that's the predicate offense that's the health care fraud that's counted  count seven there needs to be something more there needs to be a use of an identity in furtherance of that underlying crime that what they did the identity was the doctor's i d and the use of the patient's name  but i think those i'm sorry to me were no no i'm just saying they use them to commit a fraud but without those there would have been no claim that's part of the claim i think the authorization i think it's important because it's an authorization case i think what the what the individuals in med locker lied about was the authorization what they were entitled to what benefits they were entitled to for the service that they provided in this case mr michael lied about whether he was entitle to reimbursement for distributing or for dispensing in medication i think maybe another way to put it is if i understand your theory of the case correctly you would say the statute does cover this fact pattern but just change one thing he says he's the doctor right because then i would be in person a ship right if it were but you say you say the wine is authorization that's still an authorization case well no i don't i just don't know what that means i did in that instance he would be a person aiding i think the definition of use and if you look at the three cases together really what use means is to impersonate somebody else to pass yourself off to somebody else or to create a false persona for yourself or for somebody else which was why and in medal actress just establish what something that i think we all agree what shows it's not just in person ation right because that was that was not a person ation case right but she created in white defending created false identifications created military i d s for her clients and submitted them as accurate on behalf of her clients submitted false information and the court under had not seven white the court specifically noted that just her lying about whether whether her or what they did right wasn't enough that line doesn't work for me everybody is lying about what someone did in these cases including the cases you think are covered by the statute right they all lies about what you did or someone else did right so it's just not a useful it doesn't tell me what's on one side of the line when that proposition applies to all cases well and i think what's important is that the underlying predicate offense i think it's significant that the health care fraud claim  the government has has said that argument the government has argued that the there's a false claim that was submitted there has to be for aggravated identity theft there has to be something more there has to be  e somebody is individual either impersonating or creating a false persona and if you look at the context of the statute use it should be read pretty narrowly because of the words that are around it and transfer over possess a relatively narrow verne's use of my own is a big i get that point and it's in the cases but what i would say there is why isn't that just a function of transfer possess is dealing with physical means of identification and use is dealing with it when it's intangible so that that's how i see that but the let's go back to why in what exactly we're trying to do here the falsity with the means of identification is putting on it that this person's of that right that was the lie and it's a means of identification john smith everything is accurate john smith was born this day john smith wants airfare rye in the means of identification is that they were of that so if i take that cut nice of a y and put it here what i would say the law is did you prescribe a medication or for the patient did you ask for a medication so it's very similar you using a real person real birth date or are i d d the doctor and then you're just adding a lie to it so why isn't that the same because in it was a completely it was creation of a completely false percent of it white in this case you have a real patient that person existed and that they were real people that were getting the airfares they were real people but if the bank to say that that drug isn't that like whether they're military or i don't think so i think it i think there's a distinction there and i think the distinction is is that it was a signature count in met life that was affirmed the forgery and in that case signatures a means of identification and in that case signing as someone else is creating a false identification in this case there was nothing  just seems really funny that one is covered because it happens to be on paper and the other is not is an electronic presumptively sign not trying to say which i would beat would be valid but in i think it goes back to authorization what is i think is what is important here and i think this case is up par with miller in which in and in by using your example that you used earlier he cemented in connection with or in relation to getting a submitted in his own name signed by his own person and or in his own name the name of the patient the name of the doctor and without submitting those names there would have been a claim and that's the underlying health care fraud kind of acknowledges that he was acting on behalf of the energy as opposed to the individuals and in this case mr he was a pharmacist and the government has has argued it has means of identification with respect and these but that the names the i that he was using were individual names of and i don't remember my head what those gentleman's name is omar but he had two specific names that were handwritten on a piece of paper that were submitted giving basically misleading that those individuals had given him authority to pledge collateral for that entity of which they were members another important point is to consider the context of the statute what the statute was intended to punish in this case this is one of the only white collar statutes that i can think of that has a mandatory minimum of two years and in looking at the legislative history like they did like the court did in miller it's really intended to punish the most serious crimes and the concern was is that individuals were stealing identities and going out and committing more serious crimes and in this case this this this instance this  submission is not what the aggravated identity that statute was intended to punish there is an underlying health care fraud claim and while of course we dispute liability but not all health care fraud involves government is alleging is not going to challenge so it's not to say that i think that nothing is wrong here perhaps that is health care fraud and that's for another day for another argument but the issue is whether that constitutes aggravated i actually think my colleague on the other side here hit the nail on the head without you probably think so too without these identities there would have that said the partnership or the the internet he had approved this and just listed names he didn't forge signatures he didn't use any other means of identification and as my colleague also acknowledged in footnote five of that case this court said he was acting on behalf of the entity not on behalf of the individuals and that is that should not apply to entities lies about the identification of ya should know that and i don't off the top of my head i'd be happy to submit a letter later on but i don't believe that that matters here because the way it was charged in miller was that the identities that were stolen or that aggravated any that's had to do with the identities of the individuals it didn't charge the theft of the identity of the entity i don't think it does reach but i don't want to say that for sure because i so that's the that's the issue here we got a completely false claim submitted that would not have been possible without using the identification that means of identification of the patient and the doctor honor is based on that the district court erred here in dismissing count eight you said it was a good start and i did my during and in relation point you're still nervous about the proposition are you willing to embrace it i'm willing to embrace it judg been possible at all and so that shows that he was using it in relation to the health care fraud if we had dropped the definition that the district judge used here in that my opponent advocates then she's knowledged given white but it goes beyond impersonate so i think we have to be fair there i agree judging my time as only i conclude so but my point was that health care