USA v. Huping Zhou

Filing

FILED OPINION (ANDREW J. KLEINFELD, MILAN D. SMITH, JR. and JANIS L. SAMMARTINO) AFFIRMED. Judge: AJK , Judge: MDS Authoring, Judge: JLS . FILED AND ENTERED JUDGMENT. [8172519]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
HUPING ZHOU,
Defendant-Appellant.

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


No. 10-50231
D.C. No.
2:08-cr-01356AJW-1
OPINION

Appeal from the United States District Court
for the Central District of California
Andrew J. Wistrich, Magistrate Judge, Presiding
Argued and Submitted
April 13, 2012—Pasadena, California
Filed May 10, 2012
Before: Andrew J. Kleinfeld and Milan D. Smith, Jr.,
Circuit Judges, and Janis L. Sammartino, District Judge.*
Opinion by Judge Milan D. Smith, Jr.

*The Honorable Janis L. Sammartino, District Judge for the U.S. District Court for the Southern District of California, sitting by designation.

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COUNSEL
Amy Fan (argued), Saint Martin & Fan, Los Angeles, California, for the defendant-appellant.
Consuelo S. Woodhead (argued), Robert E. Dugdale, and
Andrè Birotte, Jr., United States Department of Justice, Los
Angeles, California, for the plaintiff-appellee.

OPINION
M. SMITH, Circuit Judge:
Defendant-Appellant Huping Zhou, a former research
assistant at the University of California at Los Angeles Health
System (UHS), accessed patient records without authorization
after his employment was terminated. In an information, the
government charged him with violating the Health Insurance
Portability and Accountability Act of 1996 (HIPAA), which
imposes a misdemeanor penalty on “[a] person who knowingly and in violation of this part . . . obtains individually
identifiable health information relating to an individual[.]” 42
U.S.C. § 1320d-6(a)(2) (emphasis added). Zhou moved to dismiss the information because it did not allege that Zhou knew

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that the statute prohibited him from obtaining the health information. The district court denied the motion to dismiss. Zhou
entered a conditional guilty plea, reserving the right to appeal
the denial of his motion to dismiss.
We have jurisdiction under 28 U.S.C. § 1291, and we
affirm the district court because the plain text of Section
1320d-6(a)(2) is not limited to defendants who knew that their
actions were illegal. Rather, the misdemeanor applies to
defendants who knowingly obtained individually identifiable
health information relating to an individual, and obtained that
information in violation of HIPAA.
FACTUAL AND PROCEDURAL BACKGROUND
Zhou was hired as a research assistant in rheumatology at
UHS on February 2, 2003. On October 29, 2003, UHS issued
Zhou a notice of intent to dismiss due to “continued serious
job deficiencies and poor judgment.” On November 12, 2003,
after a formal internal grievance hearing, Zhou received a dismissal letter effective November 14, 2003.
After his termination on November 14, 2003, there were at
least four instances, on November 17 and 19, in which Zhou
accessed patient records without authorization. The information charged Zhou with crimes only for accessing patients’
medical information after he was terminated and no longer
treating patients at the hospital.
HIPAA provides that: “[a] person who knowingly and in
violation of this part — (1) uses or causes to be used a unique
health identifier; (2) obtains individually identifiable health
information relating to an individual; or (3) discloses individually identifiable health information to another person, shall
be punished as provided in subsection (b).” 42 U.S.C.
§ 1320d-6(a).
On November 17, 2008, Zhou was charged by information
under subsection 2 of that HIPAA provision. The four misde-

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meanor counts in the information stated that Zhou “knowingly
and for reasons other than permitted by Title 42 United States
Code Chapter 7, Subchapter XI, Part C, obtained and caused
to be obtained individually identifiable health information
relating to an individual. . . .” Each count alleged access to a
patient record after Zhou’s termination.
On October 19, 2009, Zhou moved to dismiss the information, arguing that the information did not allege that he knew
that it was illegal to obtain the health information. On
November 12, 2009, the magistrate judge denied the motion
in a ruling from the bench.
In pretrial filings, the government proposed a jury instruction that defined the elements of the crime as:
(1) That the defendant knowingly obtained individually identifiable health information relating to
another individual; and
(2) That the defendant obtained this individually
identifiable health information for a purpose other
than permitted by Title 42, United States Code,
Chapter 7, Subchapter XI, Part C.
Zhou proposed a jury instruction that defined the elements as:
First: That the Defendant obtained individually identifiable health information relating to another individual.
Second: That the Defendant obtained the information
for a purpose other than permitted by Title 42,
U.S.C. Chapter 7, Subchapter XI, Part C.
Third: That the Defendant obtained the information
knowing that his obtaining this information was in
violation of the criminal laws as set forth in statute[.]

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On December 14, 2009, during a pretrial conference, the
court stated that it planned to adopt the government’s proposed jury instruction, although it would be open to changing
its mind.
On January 8, 2010, Zhou entered a conditional guilty plea,
reserving his right to appeal the court’s denial of his motion
to dismiss the information. Zhou was sentenced to four
months in prison, followed by a year of supervised release, a
$2,000 fine, and a $100 special assessment. Zhou filed a
timely notice of appeal.
STANDARD OF REVIEW
We review de novo the denial of a motion to dismiss the
information. United States v. Marcucci, 299 F.3d 1156, 1158
(9th Cir. 2002).
DISCUSSION
An indictment or information must meet the requirements
of both the Due Process Clause and Federal Rule of Criminal
Procedure 7. Under the Due Process Clause, an indictment or
information is sufficient if it “first, contains the elements of
the offense charged and fairly informs a defendant of the
charge against which he must defend, and, second, enables
him to plead an acquittal or conviction in bar of future prosecutions for the same offense.” Hamling v. United States, 418
U.S. 87, 117 (1974). Federal Rule of Criminal Procedure 7
requires that an indictment or information “be a plain, concise, and definite written statement of the essential facts constituting the offense charged.” Fed. R. Crim. P. 7(c)(1). “An
indictment is sufficient if it contains the elements of the
charged crime in adequate detail to inform the defendant of
the charge and to enable him to plead double jeopardy.”
United States v. Buckley, 689 F.2d 893, 896 (9th Cir. 1982).
Zhou contends that the information failed to meet these
requirements because it did not explicitly state that Zhou

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knew that obtaining the health information was illegal. He
argues that “knowingly,” as used in 42 U.S.C. § 1320d-6(a),
modifies “in violation of this part.” Under Zhou’s interpretation of the statute, a defendant is guilty only if he knew that
obtaining the personal healthcare information was illegal.
[1] We reject Zhou’s argument because it contradicts the
plain language of HIPAA. The statute’s misdemeanor criminal penalty applies to an individual who “knowingly and in
violation of this part . . . obtains individually identifiable
health information relating to an individual.” 42 U.S.C.
§ 1320d-6(a)(2) (emphasis added). The word “and” unambiguously indicates that there are two elements of a Section
1320d-6(a)(2) violation: 1) knowingly obtaining individually
identifiable health information relating to an individual; and
2) obtaining that information in violation of Title 42 United
States Code Chapter 7, Subchapter XI, Part C. Thus, the term
“knowingly” applies only to the act of obtaining the health
information.
If the statute did not contain “and,” then Zhou’s argument
might be more persuasive. However, we cannot ignore “and”
because its presence often dramatically alters the meaning of
a phrase. Without “and,” the Second Amendment would guarantee “the right of the people to keep bear arms,” Leo Tolstoy
would have published “War Peace,” and James Taylor would
have confusingly crooned about “Fire Rain.” To overlook
“and” would be to violate “an important rule of statutory construction — that every word and clause in a statute be given
effect.” United States v. Williams, 659 F.3d 1223, 1227 (9th
Cir. 2011).
When the plain language of a statute is clear, it is unnecessary to consider legislative history. Botosan v. Paul McNally
Realty, 216 F. 3d 827, 831 (9th Cir. 2000) (“Where the statutory language is clear and consistent with the statutory
scheme at issue, the plain language of the statute is conclusive

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and the judicial inquiry is at an end.”). If we were to consider
it, the legislative history would make no difference.
HIPAA’s legislative history indicates that Congress
intended broadly to apply this misdemeanor criminal penalty.
The House Ways and Means Committee report on this section
states that “[p]rotecting the privacy of individuals is paramount” and that “[t]his section reflects the Committee’s concern that an individual’s privacy be protected.” H.R. Rep. No.
104-496(I), reprinted in 1996 U.S.C.C.A.N. 1865, 1900,
1903. Nothing in the Committee Report suggests that Congress intended to confine this criminal penalty to those who
knew that their actions were illegal.
[2] Moreover, our conclusion is supported by Congress’s
decision not to require willfulness as an element of the crime.
Section 1320d-6(a)(2) uses only the term “knowingly,” but
other criminal statutes require the crime be committed both
“knowingly” and “willfully.” See, e.g., 18 U.S.C. § 1347
(criminal health care fraud statute that applies to defendants
who act “knowingly and willfully”). In Bryan v. United
States, 524 U.S. 184 (1998), the Supreme Court distinguished
“knowingly” and “willfully,” concluding that “the knowledge
requisite to knowing violation of a statute is factual knowledge as distinguished from knowledge of the law.” Id. at 192.
(citation omitted); see also Dixon v. United States, 548 U.S.
1, 5 (2006) (“[U]nless the text of the statute dictates a different result, the term ‘knowingly’ merely requires proof of
knowledge of the facts that constitute the offense, not a culpable state of mind or knowledge of the law.”) (internal quotation marks and citations omitted). Accordingly, had Congress
intended to require a higher level of intent, it would have
included “willfully” in Section 1320d-6(a)(2). See Choe v.
INS, 11 F.3d 925, 944, n.29 (9th Cir. 1993) (“As has occasionally been said about congressional silence in similar contexts, the dog did not bark.”).
Similarly, Section 1320d-6’s title indicates a broad scope.
See Christensen v. Comm’r of Internal Revenue, 523 F.3d

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957, 960 (9th Cir. 2008) (“[O]ur first indication of the statute’s scope is set forth in the title.”). The section is titled
“Wrongful disclosure of individually identifiable health information.” 42 U.S.C. § 1320d-6. Had Congress intended to confine this penalty to people who knew that the disclosure was
illegal, the title likely would have limited the scope to knowingly illegal conduct.
Zhou primarily relies on three cases in which the Supreme
Court held that other criminal statutes apply only to “knowing” actions.1 In those statutes, “knowingly” is immediately
followed by a series of verbs. The statutes in those cases are
ambiguous because “it is not at all clear how far down the
sentence the word ‘knowingly’ is intended to travel.” Liparota, 471 U.S. at 424 n.7. Those cases are inapposite because
the HIPAA provision at issue here clearly limits “knowingly”
to the act of obtaining the information. The placement of
“and” eliminates any possible ambiguity.
1

In Liparota v. United States, 471 U.S. 419, 420-21 (1985), the defendant was convicted under the federal food stamp statute, 7 U.S.C.
§ 2024(b)(1), which provides that “whoever knowingly uses, transfers,
acquires, alters, or possesses coupons or authorization cards in any manner
not authorized” by statute or regulation was subject to fine or imprisonment. The Supreme Court reversed the conviction because the indictment
failed to allege that the defendant knew his action was in violation of the
law. Id. at 433. Flores-Figueroa v. United States, 556 U.S. 646, 647
(2009), involved a criminal statute, 18 U.S.C. § 1028A, which applied to
any individual who “knowingly transfers, possesses or uses, without lawful authority, a means of identification of another person.” The Supreme
Court rejected the government’s argument that the defendant need not
know that the identification belonged to another person. Id. at 657.
Finally, United States v. X-Citement Video, Inc., 513 U.S. 64 (1994),
involved a child pornography statute that made it a crime to “knowingly
receive[ ], or distribute[ ], any visual depiction . . . which contains materials which have been mailed or so shipped or transported, by any means
including by computer, or knowingly reproduces any visual depiction for
distribution . . . if . . . the producing of such visual depiction involves the
use of a minor engaging in sexually explicit conduct; and . . . such visual
depiction is of such conduct.” Id. at 68. The Supreme Court held that statute requires knowledge that the person depicted was a minor. Id. at 70.

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Zhou also cites HIPAA’s civil penalties provision in support of his argument. HIPAA provides an exception to civil
liability if “it is established that the person did not know (and
by exercising reasonable diligence would have not known)
that such person violated such provision.” 42 U.S.C. § 1320d5(a)(1)(A). This argument is unavailing because civil sanctions are entirely separate from the criminal HIPAA provision
at issue in this case. Indeed, the presence of this exception in
another portion of HIPAA demonstrates that Congress explicitly chose to not include such an exception in Section 1320d6(a)(2). See SEC v. McCarthy, 322 F.3d 650, 656 (9th Cir.
2003) (recognizing the “well-established canon of statutory
interpretation that the use of different words or terms within
a statute demonstrates that Congress intended to convey a different meaning for those words”).
Finally, Zhou contends that the rule of lenity requires the
court to impute a requirement that the defendant knowingly
violated the law. The rule of lenity “requires ambiguous criminal laws to be interpreted in favor of the defendants subjected
to them.” United States v. Santos, 553 U.S. 507, 514 (2008).
The rule of lenity does not apply here because the statute is
unambiguous.
[3] In sum, we hold that 42 U.S.C. § 1320d-6(a)(2) is not
limited to defendants who knew that their actions were illegal.
Rather, the defendant need only know that he obtained individually identifiable health information relating to an individual. Therefore, the information satisfies the requirements of
both the Due Process Clause and Federal Rule of Criminal
Procedure 7.2
2

The government argued that the information, which tracks the language
of the statute in its use and placement of the words “knowingly and,” was
sufficient even under Zhou’s proposed statutory interpretation. We decline
to address this argument. Faced with a similar challenge to the decision
not to dismiss an indictment under a statute with disputed interpretations,
we declined to rule on statutory construction grounds where we found the

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CONCLUSION
For the foregoing reasons, the district court’s denial of the
motion to dismiss the information is affirmed.
AFFIRMED.

indictment independently sufficient. United States v. Davis, 336 F.3d 920,
923 n.1, 924 (9th Cir. 2003). However, Davis does not bind us to a specific sequence of reasoning. Indeed, we may affirm a district court’s denial
of a motion to dismiss an information on any basis supported by the
record. United States v. Reyes-Bonilla, 671 F.3d 1036, 1042 (9th Cir.
2012) (citing Davis, 336 F.3d at 922).