113 F.4th 1193
9th Cir.2024Background
- Artak Ovsepian was convicted of conspiracy to commit healthcare fraud and aggravated identity theft related to an operation out of a sham medical clinic, Manor Medical Imaging, in Glendale, California.
- The fraud involved using real patients’ information (sometimes without their consent) to obtain and fill prescriptions, which were then resold on the black market, with fraudulent billings to Medicare and Medi-Cal.
- Ovsepian's aggravated identity theft conviction focused on the "possession" of a single victim's (H.T.) personal identifying information found in patient files at Manor.
- The Supreme Court decided Dubin v. United States (2023), clarifying that aggravated identity theft under 18 U.S.C. § 1028A applies only when use or possession of another’s identity is "at the crux" of the criminality of the predicate offense.
- Based on Dubin, Ovsepian argued in a § 2255 motion that he was actually innocent of aggravated identity theft; both the trial evidence and jury instructions were challenged before the Ninth Circuit.
- The Court held that the government failed to prove, under the Dubin standard, that possession of H.T.’s identity was “at the crux” of the healthcare fraud, and jury instructions did not reflect the correct standard.
Issues
| Issue | Ovsepian's Argument | Government's Argument | Held |
|---|---|---|---|
| Scope of Actual Innocence Inquiry | Only must show innocence as to the prong tried—possession | Must show innocence as to all prongs charged, not just those tried | Only prong tried (possession) is relevant in actual innocence inquiry |
| Whether Ovsepian is Actually Innocent | No evidence his possession of ID was "at the crux" | Having/keeping files facilitated the fraud, so possession was enough | Dubin demands "crux"; no evidence possession played key/integral role |
| Defective Jury Instructions | Jury wasn't told about "crux" requirement | Instructions sufficed because just tracked statutory text | Instructions were insufficient post-Dubin; prejudicial error |
| Pinkerton Liability Applicability | Even if co-conspirators possessed ID, not at crux post-Dubin | Pinkerton doesn’t overcome Dubin’s substantive requirement | Did not need to decide—jury could not convict on evidence presented |
Key Cases Cited
- Dubin v. United States, 599 U.S. 110 (2023) (use or possession of another’s identity under § 1028A must be "at the crux" of predicate offense)
- Bousley v. United States, 523 U.S. 614 (1998) (actual innocence is based only on the offense of conviction)
- Schlup v. Delo, 513 U.S. 298 (1995) (actual innocence gateway for procedurally defaulted claims)