                   NOT RECOMMENDED FOR FULL-TEXT PUBLICATION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.

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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.”

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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


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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


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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


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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


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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


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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.




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