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Boston, MA - Criminal defense lawyer represented defendant with health care fraud and conspiracy to commit health care fraud, and aggravated identity theft chargee.

The relevant portion of the indictment at issue
identifies the events and conduct alleged to give rise to a crime
as follows.
Medicare covers a beneficiary's access to reusable DME
that is medically necessary and that is ordered by a licensed
medical doctor or other qualified health care provider. Examples
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of DME are motorized wheelchairs, hospital beds, oxygen
concentrators, nebulizers, and surgical dressings. Medicare also
covers certain DME accessories, such as adjustable wheelchair arm
rests, safety belts, pelvic straps, reclining backs, seat
cushions, and tire pressure tubes.
A DME supplier can submit a claim to Medicare in order
to seek direct reimbursement for DME supplied to a beneficiary,
but only if that beneficiary has assigned his or her right of
payment to the DME supplier. When submitting a claim, the DME
supplier must provide, among other things: (1) the beneficiary's
name and Health Insurance Claim Number; (2) the name and
identification of the physician or provider who ordered the DME;
and (3) a description of the DME provided to the beneficiary.
The defendants are either physicians in Puerto Rico or
employees of Equipomed, a Puerto Rican DME supplier. According to
the indictment, from 2007 to 2013, the defendants engaged in a
scheme to defraud Medicare. The alleged scheme was
straightforward: (1) the defendant doctors wrote fraudulent
prescriptions or medical orders for DME without beneficiaries'
assent or knowledge and without even having examined the
beneficiaries; (2) the Equipomed defendants then submitted
fraudulent DME claims to Medicare; (3) Medicare paid the
fraudulent claims; and (4) the defendants split the proceeds.
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The indictment also identified the specific crimes
alleged to have been committed by each defendant as a result of
that conduct. In particular, it pointed to aggravated identity
theft under 18 U.S.C. § 1028A(a)(1), which criminalizes the
knowing "transfer[], possess[ion], or use[], without lawful
authority, [of] a means of identification of another person" during
and in relation to an enumerated list of felony violations.
18 U.S.C. § 1028A. Tracking the statute, the indictment
explicitly charged the defendants with "knowingly transfer[ing],
possess[ing] and us[ing], without lawful authority, a means of
identification of another person" during and in relation to
violations of 18 U.S.C. §§ 1347 and 1349, health care fraud and
conspiracy to commit health care fraud, respectively.
The defendants moved, presumably under Federal Rule of
Criminal Procedure 12(b)(3)(B), to dismiss the section 1028A
counts. The government responded in opposition. The defendants
argued that dismissal of the counts was warranted because the
conduct alleged in the indictment did not sufficiently describe a
"use" of a means of identification under section 1028A as defined
by this court in United States v. Berroa, 856 F.3d 141, 156 (1st
Cir.) ("In light of § 1028A's legislative history, as well as the
limitless nature of the government's alternative construction, we
read the term 'use' to require that the defendant attempt to pass
him or herself off as another person or purport to take some other
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action on another person's behalf."), cert. denied sub nom. Davila
v. United States, 138 S. Ct. 488 (2017). The government objected
to the idea that the sufficiency of its case should be evaluated
by pretrial motion. It otherwise argued on the merits only that
defendants "used" the means of identification of others.
The district court granted the defendants' motion and
dismissed the section 1028A counts, holding that the defendants
"submitted the reimbursement forms in their own names and for their
own benefit" and did not submit the claim forms "as representatives
of the beneficiaries nor for the benefit of the beneficiaries."
This interlocutory appeal followed.
II.
Federal Rule of Criminal Procedure 12(b) provides that
"[a] party may raise by pretrial motion any defense, objection, or
request that the court can determine without a trial on the
merits." The defense that the indictment "fail[s] to state an
offense" must be raised by pretrial motion when "the basis for the
motion is then reasonably available and the motion can be
determined without a trial on the merits." Fed. R. Crim.
P. 12(b)(3)(B)(v). For this reason, the district court was
certainly correct to entertain such a pretrial motion claiming
that the indictment failed to state a criminal offense.
The indictment, however, is on its face adequate to state
an offense. Unlike a civil complaint that need allege facts that
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"plausibly narrate a claim for relief," Germanowski v. Harris, 854
F.3d 68, 71 (1st Cir. 2017) (quoting Schatz v. Republican State
Leadership Comm., 669 F.3d 50, 55 (1st Cir. 2012), a criminal
indictment need only "apprise the defendant of the charged
offense," United States v. Stepanets, 879 F.3d 367, 372 (1st Cir.
2018) (quoting United States v. Savarese, 686 F.3d 1, 7 (1st Cir.
2012)), "so that the defendant can prepare a defense and plead
double jeopardy in any future prosecution for the same offense,"
id. (quoting United States v. Guerrier, 669 F.3d 1, 3 (1st Cir.
2011)).
Such is just what the government's superseding
indictment did in this case. It fairly identified the defendants'
conduct alleged to be a crime: the submission of specific,
identified claim forms on specified dates falsely stating that a
named beneficiary had received DME entitling that named
beneficiary to reimbursement, and falsely indicating that the
beneficiary had assigned his or her reimbursement right to a
defendant. It also cited and tracked the statutory language said
to make such conduct criminal. As a result, upon reading the
indictment, each defendant knew both the specific offense with
which he or she was charged and the specific conduct said to have
constituted that offense. In this manner, the government
sufficiently enabled the defendants to prepare defenses and
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protect themselves against being twice put in jeopardy for the
same offense.
In nevertheless dismissing the indictment, the district
court did not question that § 1028A is a criminal offense, that
the indictment recited its elements properly, or that the
indictment identified the defendants' conduct said to have
constituted the offense. Instead, at the defendants' behest and
over the government's objection, the district court undertook to
determine whether the conduct identified in the indictment could,
as a matter of law, support a conviction for the charged offense
of aggravated identity theft. Among other things, the district
court ruled that no facts were alleged showing that the defendants
"submit[ted the] claim forms as representatives of the
beneficiaries."
That ruling presumes that a Rule 12(b) motion provides
an occasion to force the government to defend the sufficiency of
its evidence to be marshalled in support of proving the charged
offense. It does not. As we said in Stepanets (issued after the
district court's decision in this case), "the government need not
recite all of its evidence in the indictment." 879 F.3d at 372
(quoting United States v. Innamorati, 996 F.2d 456, 477 (1st Cir.
1993)); see also United States v. DeLaurentis, 230 F.3d 659, 661
(3d Cir. 2000) ("The government is entitled to marshal and present
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its evidence at trial, and have its sufficiency tested by a motion
for acquittal . . . .").
As this court recently held, under Rule 12(b)(1), "a
district court may consider a pretrial motion to dismiss an
indictment where the government does not dispute the ability of
the court to reach the motion and proffers, stipulates, or
otherwise does not dispute the pertinent facts." United States v.
Musso, 914 F.3d 26, 29-30 (1st Cir. 2019) (citing United States v.
Weaver, 659 F.3d 353, 355 n* (4th Cir. 2011)). No circuit, though,
allows such a review on an incomplete or disputed factual record.
Nor do the defendants point us to any case in which a circuit court
blessed a requirement that the government complete the factual
record prior to trial.
The district court in this case apparently regarded the
factual record as complete and undisputed. The government has
never so conceded. The claim forms said to constitute the use of
other persons' names, dates of birth, and claim numbers are not in
the record. Nor is there any evidence concerning how Medicare
interprets such forms. The indictment alleges that the claim form
must be read as a statement that the identified beneficiary has
assigned his or her benefit claim to one of the defendants.
Whether such a transfer of rights somehow also connotes permission
to act on behalf of the assignor is unclear on the limited record
as it now stands, as is whether the conduct alleged constitutes a
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requisite transfer or possession of the beneficiaries' personal
identifying information. We tender no opinion as to whether the
prosecution will turn out to have enough evidence to secure a
conviction. We do hold that the proceedings as they now stand
provide no occasion for determining whether the government's proof
is sufficient to sustain a conviction. And the record here lacks
any agreed upon completeness.

Outcome: For the foregoing reasons, we reverse the district
court's dismissal of the section 1028A aggravated identify theft
counts, and remand for further proceedings in accordance with this
opinion.

Plaintiff's Experts:

Defendant's Experts:

Comments: