NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 16a0080n.06
Case No. 15-3274
FILED
UNITED STATES COURT OF APPEALS Feb 05, 2016
FOR THE SIXTH CIRCUIT DEBORAH S. HUNT, Clerk
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
) ON APPEAL FROM THE UNITED
v. ) STATES DISTRICT COURT FOR
) THE NORTHERN DISTRICT OF
CHARMIN REEVES, ) OHIO
)
Defendant-Appellant. ) OPINION
)
)
BEFORE: BOGGS and DONALD, Circuit Judges; and HOOD, District Judge.*
BERNICE BOUIE DONALD, Circuit Judge. Charmin Reeves appeals her convictions
of four counts of aiding and abetting health-care fraud in violation of 18 U.S.C. §§ 1347(a)(1) or
(2), and four counts of aiding and abetting aggravated identity theft in violation of 18 U.S.C. §
1028A(a)(1) or (2). She alleges that the district court erred in denying her motions for acquittal
and a new trial.
For the reasons set forth below, we AFFIRM the judgment of the district court.
*
The Honorable Joseph M. Hood, United States District Judge for the Eastern District of Kentucky, sitting by
designation.
Case No. 15-3274
United States v. Charmin Reeves
I.
On November 29, 2009, Reeves contacted her cousin Kamille Carter and asked if she
wanted to make some extra money by filling her prescription for OxyContin. The prescription
she provided Carter was written on the stolen prescription pad of Dr. John Bergfeld, a physician
employed by Cleveland Clinic Hospital, which happened to be the same hospital where Reeves
worked as an operating room scheduler. The forged prescription made out to Carter contained
Dr. Bergfeld’s forged signature, and his DEA number. Beyond that, the prescription contained
contradictory abbreviated medical instructions, such as “PO PRN” and “T.T.I.D,” which stands
for “by mouth, as necessary” and “take one tablet three times a day,” respectively.
Carter attempted to fill the prescription at a Walgreens pharmacy. The pharmacist
quickly ascertained that the prescription was likely fraudulent and contacted law enforcement.
Carter was arrested. Upon her release, Carter went home and spoke to Reeves. When Carter
told Reeves that she had been arrested, Reeves responded, “that that hadn’t happened to the
person who did it before.” After making a phone call, she told Carter “don’t worry about it”
because it was her first time being arrested. In exchange for a plea deal, Carter ultimately agreed
to cooperate with law enforcement.
Law enforcement decided to investigate this incident further. During the investigation,
they discovered that not only did Reeves work in such close quarters with Dr. Bergfeld that she
had access to his prescription pad, but they also noticed that the forged prescription looked
remarkably similar to four other fraudulent prescriptions for OxyContin written on the
prescription pad of Dr. Deborah Cook.1 Specifically, three “Cook prescriptions” contained the
same contradictory medical instructions as the “Bergfeld prescription”, and each of them also
1
Reeves’ insurance policy was used to purchase OxyContin at CVS on the following dates: October 9, 2009,
November 8, 2009, December 2, 2009, and January 19, 2010.
-2-
Case No. 15-3274
United States v. Charmin Reeves
prescribed the same strong dosage of OxyContin. More alarming, however, was the fact that all
four of the “Cook prescriptions” were prescribed to Reeves. Not only were they prescribed to
Reeves, whoever picked up the prescriptions also used Reeves’ insurance policy to pay for each
of them. The only differences between the prescriptions were that Carter attempted to fill the
“Bergfeld prescription” at Walgreens under her own name, and the “Cook prescriptions” were
filled at two CVS locations under Reeves’ former married name, “Charmin Wray.”2 In addition,
law enforcement also found it peculiar that the same day Carter attempted to fill the “Bergfeld
prescription” at Walgreens, CVS refused to refill a prescription because not enough time had
elapsed since Reeves’ last OxyContin refill.
On April 2, 2013, Reeves was indicted on one count of conspiracy to possess with the
intent to distribute oxycodone in violation of 21 U.S.C. §§ 841(a) and 846. On August 23, 2013,
Reeves filed a motion to suppress her confession. Her motion was granted on October 29, 2013.
Reeves asserted that her confession was the primary incriminating evidence supporting the
indictment, and moved to dismiss the indictment. Before the district court could rule on Reeves’
motion to dismiss, a federal grand jury issued a nine-count superseding indictment.
On August 11, 2014, Reeves’ jury trial began. The government presented eleven
witnesses. The jury found Reeves guilty on all nine counts. With respect to counts 2-5 (health-
care fraud) and counts 6-9 (aggravated identity theft) she was found guilty as an aider and
abettor. Reeves timely appealed.
On appeal, Reeves does not take issue with her conviction as to count one (conspiracy to
possess with intent to distribute oxycodone). She, however, argues that there was insufficient
2
In 2005, after Reeves’ divorce, she changed her name from “Charmin Wray” back to her maiden name, “Charmin
Reeves.”
-3-
Case No. 15-3274
United States v. Charmin Reeves
evidence to convict her of counts 2-9. Thus, she contends that the district court erred in denying
her motions for acquittal and for a new trial.
II.
“We review de novo a challenge to the sufficiency of the evidence supporting a criminal
conviction.” United States v. Howard, 621 F.3d 433, 459 (6th Cir. 2010) (quoting United States
v. Carson, 560 F.3d 566, 579 (6th Cir.2009)). The relevant inquiry is whether, “viewing the
evidence in the light most favorable to the prosecution, any rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt.” United States v. Fisher, 648
F.3d 442, 450 (6th Cir. 2011) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). Under
this approach, we must not “reweigh the evidence, re-evaluate the credibility of witnesses, or
substitute our judgement for that of the jury.” Id. (citing Brown v. Konteh, 567 F.3d 191, 205
(6th Cir. 2009)). Importantly, “[s]ubstantial and competent circumstantial evidence by itself may
support a verdict.” Id. (citing United States v. Lee, 359 F.3d 412, 418 (6th Cir.2004)). In this
case, since the district court has already thoroughly considered Reeves’ motion for acquittal, we
must be especially hesitant to disturb the jury verdict. Id.
We review for a clear and manifest abuse of discretion, the district court’s decision to
deny a motion for a new trial. United States v. Hughes, 505 F.3d 578, 592 (6th Cir. 2007). A
motion for a new trial is typically premised on the argument that the jury’s verdict was against
the manifest weight of the evidence. Id. When considering a motion for a new trial, district
judges “may act as a thirteenth juror, assessing the credibility of witnesses and the weight of the
evidence.” Id. at 593 (citing United States v. Lutz, 154 F.3d 581, 589 (6th Cir. 1998)). “The role
of the court of appeals, however, is not to sit as a ‘thirteenth juror’ and re-weigh the evidence,
but to examine the evidence to determine whether the district court's ruling that the verdict is not
-4-
Case No. 15-3274
United States v. Charmin Reeves
against the manifest weight of the evidence was “a clear and manifest abuse of discretion.” Lutz,
154 F.3d at 589-90 (citing United States v. Ashworth, 836 F.2d 260, 266 (6th Cir.1988)).
III.
A.
To obtain a conviction for health-care fraud under 18 U.S.C. § 1347, the government
must prove that a defendant: “(1) knowingly devised a scheme or artifice to defraud a health care
benefit program in connection with the delivery of or payment for health care benefits, items, or
services; (2) executed or attempted to execute this scheme or artifice to defraud; and (3) acted
with intent to defraud.” United States v. Hunt, 521 F.3d 636, 645 (6th Cir. 2008) (quoting
United States v. Raithatha, 385 F.3d 1013, 1021 (6th Cir.2004)).
Reeves, however, was convicted as an aider and abettor. Aiding and abetting requires:
(1) an act by a defendant which contributes to the execution of a crime, and (2) the intent to aid
its commission. Id. Therefore, regardless of whether Reeves was actually the person who
devised the fraudulent scheme, her convictions must be affirmed if the evidence is sufficient to
support a finding that she contributed to the execution of the scheme with the intent to defraud.
Id.
B.
On appeal, Reeves contends that the district court erred in denying both her motion for
acquittal and motion for a new trial, arguing that the evidence was insufficient to support her
convictions. For the reasons detailed below, we disagree.
To support her contention that the evidence was insufficient to convict her of aiding and
abetting health-care fraud, Reeves makes two flawed arguments. First, she takes issue with the
fact that no direct evidence was presented that showed that she knew that her insurance policy
-5-
Case No. 15-3274
United States v. Charmin Reeves
was being used in the fraudulent scheme. Second, she argues that any inferences the jury made
from the evidence were unreasonable. In arguing that the jury’s inferences were unreasonable
she attempts to “offer a new spin” on the evidence.
Contrary to Reeves’ assertions, more than enough circumstantial evidence was presented
to allow a reasonable fact finder to conclude that she aided and abetted health-care fraud. As
stated above, we must view all the evidence in the light most favorable to the government. See
Fisher, 648 F.3d at 450. It cannot be forgotten that Reeves does not appeal her conviction for
conspiracy to possess with intent to distribute oxycodone. Nor does she attempt to “explain
away” the evidence that was used to convict her of that charge. That evidence, however, also
supports her four health-care fraud convictions.
The fact that she intentionally recruited her cousin, Carter, to purchase OxyContin with a
forged prescription, albeit from Dr. Bergfeld’s prescription pad, is telling for the following
reasons. First, the “Bergfeld prescription” contained contradictory medical instructions identical
to three of the four prescriptions that accounted for each count of her health care fraud
conviction—the “Cook prescriptions.” Second, when Carter confronted Reeves after her arrest,
Reeves said, “that that hadn’t happened to the person who did it before.” (Page ID # 678.)
Third, two of the “Cook prescriptions” were purchased prior to Carter’s arrest. Fourth, the same
day that Reeves sent Carter to Walgreens with the “Bergfeld prescription,” CVS refused to refill
an OxyContin prescription using Reeves’ policy because not enough time had elapsed since the
last refill.
In addition to the foregoing incriminating evidence, the government also provided a CVS
pharmacist, Bradley Janko, who testified that in order for an individual to purchase prescriptions
using an insured’s policy, that person would have to provide the insured’s insurance card or the
-6-
Case No. 15-3274
United States v. Charmin Reeves
insured’s (1) name, (2) date of birth, (3) address, (4) phone number, and (5) insurance
information. (Page ID # 822-23.) The government also put on Jeffrey Schmitt, the person
responsible for managing the prescription-drug benefits for the Cleveland Clinic Employee
Health Plan. He testified that Reeves likely would have received notice that someone was using
her insurance policy after CVS refused to fill the fraudulent “Cook prescription” on November
29, 2009.
Viewed collectively, in the light most favorable to the government, the foregoing
evidence would have provided a jury with all that it needed to reasonably conclude that not only
was Reeves behind the “Bergfeld prescription,” but that she also furnished other individuals with
either her insurance card or the requisite information needed to use her policy for the purpose of
fraudulently purchasing OxyContin. The fact that she neglected to take corrective action upon
learning about the fraudulent scheme also provided a reasonable basis to disbelieve her claim
that she was ignorant to the fraud being perpetrated using her policy.
Reeves disagrees. To support her argument, Reeves points to the fact that the prosecution
did not provide any direct evidence showing that (1) she knew Dr. Cook or had access to her
prescription pad, (2) she actually received any notice that her policy was being used to pay for
the prescriptions, (3) she recruited someone else to use her policy to purchase the “Cook
prescriptions,” or that (4) the handwriting on the prescriptions was hers. She also contends that
since the “Cook prescriptions” were issued under the name of “Charmin Wray” as opposed to
“Charmin Reeves” no reasonable jury could have convicted her. It cannot be argued that the
points Reeves makes on appeal support her claim of innocence. However, in deciding that she
was guilty, the jury already considered those points and rejected them. Consequently, if we were
to overturn the jury’s verdict based on her arguments, we would have to ignore the reasonable
-7-
Case No. 15-3274
United States v. Charmin Reeves
inferences made by the jury in reaching its verdict, something that we cannot do. Accordingly,
because there was sufficient evidence to support the jury’s verdict, we hold that the district court
did not err or abuse its discretion in denying Reeves’ motion for a new trial or her motion for
acquittal.
IV.
A.
In order to secure a conviction for aggravated identity theft the government would have
to show that a defendant, during a requisite felony, knowingly transferred, possessed, or used,
without lawful authority, a “means of identification” of another person. 18 U.S.C.
§ 1028A(a)(1). A “means of identification” is defined as “any name or number that may be
used, alone or in conjunction with any other information, to identify a specific individual.”
18 U.S.C. § 1028(d)(7). Another person’s name in the form of a fraudulent signature satisfies
the “means of identification” requirement. See United States v. Williams, 553 F. App'x 516, 518
(6th Cir. 2014). Like the health-care conspiracy convictions, Reeves was convicted as an aider
and abettor. Thus, the government was required to prove that Reeves (1) performed an overt act
which contributed to the execution of the identity theft; and (2) had the intent to aid its
commission. Hunt, 521 F.3d at 645.
B.
Like her health-care conspiracy convictions, Reeves argues that the district court erred in
denying both her motion for acquittal and motion for a new trial, arguing that the evidence was
insufficient to support a conviction. We disagree.
The evidence the jury relied upon to convict Reeves of aiding and abetting health-care
fraud also supports her aggravated identity theft convictions. Since we previously analyzed that
-8-
Case No. 15-3274
United States v. Charmin Reeves
evidence and explained why it was sufficient to support Reeves’ convictions for health-care
fraud, we will not belabor the point and repeat ourselves. Suffice it to say that enough evidence
was put on by the government to allow a reasonable jury to conclude that Reeves aided and
abetted the commission of aggravated identity theft by supplying either her insurance card or
personal information to an individual for the purpose that he or she would use it in attempting to
fraudulently secure OxyContin by signing Dr. Cook’s signature on one of her prescription sheets.
Accordingly, we hold that the district court did not err or abuse its discretion in denying Reeves’
motion for a new trial and her motion for acquittal with respect to her aggravated identity theft
convictions.
V.
For these reasons, we AFFIRM the judgment of the district court.
-9-