918 F.3d 32
1st Cir.2019Background
- Six defendants (three doctors, three DME supplier employees) were indicted for Medicare-related health-care fraud (18 U.S.C. §§ 1347, 1349) and aggravated identity theft (18 U.S.C. § 1028A) based on alleged scheme (2007–2013) submitting DME claims without beneficiaries' knowledge.
- Indictment alleged doctors wrote fraudulent orders without examining beneficiaries, Equipomed employees submitted claims listing beneficiaries' names, HICNs, and assignment of benefits, Medicare paid, proceeds were split.
- The §1028A counts tracked the statute, charging defendants with knowingly "transfer[ring], possess[ing] and us[ing], without lawful authority, a means of identification of another person" in relation to the health-care fraud offenses.
- Defendants moved to dismiss the §1028A counts (Rule 12(b)(3)(B)), arguing the indictment did not allege a statutory "use" of a means of identification under this Court's Berroa construction (i.e., an attempt to impersonate or act on another's behalf).
- The district court dismissed the §1028A counts, reasoning the defendants submitted claims in their own names and not as representatives of beneficiaries; the government appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the indictment sufficiently alleges an offense under §1028A | Indictment tracks statutory language and alleges submission of claim forms containing beneficiaries' identifying information; suffices to apprise defendants | Charges fail because alleged conduct does not constitute a §1028A "use" as interpreted in Berroa (no impersonation or acting on behalf of beneficiaries) | Indictment is facially adequate; court did not decide whether evidence proves §1028A elements on the merits |
| Whether a district court may resolve factual sufficiency of an indictment on pretrial Rule 12 motion | Gov: Rule 12 does not permit resolving disputed factual sufficiency; sufficiency of evidence is for trial and Rule 29 motion | Defendants: Court can decide as matter of law that alleged conduct cannot constitute offense and dismiss | Court: A Rule 12 motion may be decided pretrial only when facts are undisputed or stipulated; not appropriate here because government did not concede facts |
| Whether the district court may require the government to present its evidence in the indictment | Gov: Government need not recite all evidence in indictment; evidence sufficiency is tested at trial/acquittal motion | Defendants: The indictment must show legal sufficiency under Berroa to proceed on §1028A counts | Court: Indictment need only apprise defendant of charged offense; government not required to include full evidentiary record in indictment |
| Effect of Berroa interpretation of "use" on pretrial dismissal | Gov: Berroa is a merits argument; whether it applies depends on evidence developed at trial | Defendants: Berroa precludes §1028A liability on the alleged conduct as a matter of law | Court: Did not resolve Berroa applicability on merits; reversed dismissal and remanded for further proceedings where evidence can be developed |
Key Cases Cited
- United States v. Berroa, 856 F.3d 141 (1st Cir.) (construed §1028A "use" to require impersonation or acting on another's behalf)
- United States v. Stepanets, 879 F.3d 367 (1st Cir.) (indictment need only apprise defendant of charged offense; government need not recite all evidence)
- United States v. Savarese, 686 F.3d 1 (1st Cir.) (indictment adequacy standard)
- United States v. Innamorati, 996 F.2d 456 (1st Cir.) (government may present evidence at trial; indictment not exhaustive evidence list)
- United States v. DeLaurentis, 230 F.3d 659 (3d Cir.) (evidence sufficiency is tested at trial or by motion for acquittal)
- United States v. Musso, 914 F.3d 26 (1st Cir.) (Rule 12 pretrial dismissal proper only when government does not dispute pertinent facts)
- United States v. Guerrier, 669 F.3d 1 (1st Cir.) (purpose of indictment: enable defense preparation and double jeopardy protection)