United States v. Motley

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 23-3971

D.C. No.

Plaintiff - Appellee,

2:17-cr-00774-

FMO-1

v.

TAMARA YVONNE MOTLEY,

AKA Tamara Ogembe, AKA Tamara OPINION

Motley-Ogembe,

Defendant - Appellant.

Appeal from the United States District Court

for the Central District of California

Stanley Blumenfeld, Jr., District Judge, Presiding

Argued and Submitted September 17, 2025

Pasadena, California

Filed February 24, 2026

Before: Richard R. Clifton, Jay S. Bybee, and Kenneth K.

Lee, Circuit Judges.

Opinion by Judge Bybee

2 USA V. MOTLEY

SUMMARY*

Criminal Law

The panel vacated a portion of Tamara Motley’s

sentence and remanded for resentencing in a case in which a

jury convicted Motley of defrauding Medicare by submitting

millions of dollars in false and fraudulent claims for durable

medical equipment and related services.

Motley’s underlying healthcare fraud was not in

dispute. The sole question was whether Motley also

committed aggravated identity theft under 18 U.S.C.

§ 1028A(a)(1) because the companies Motley used to submit

the false claims were enrolled in Medicare under her

relatives’ names, not her own. Aggravated identity theft

carries a mandatory, consecutive two-year prison term if

“during and in relation to” a predicate offense, a defendant

“uses, without lawful authority, a means of identification of

another person.”

On the eve of trial, the Supreme Court decided Dubin v.

United States, 599 U.S. 110 (2023). Dubin significantly

narrowed § 1028A(a)(1) by holding that a “defendant’s

misuse of another person’s means of identification” must be

“at the crux of what makes the underlying offense criminal,

rather than merely an ancillary feature of a billing

method.” The panel held that Motley’s § 1028A(a)(1)

conviction cannot stand because the government failed to

advance a theory at trial that the use of her relatives’ names

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

USA V. MOTLEY 3

was “critical to the success” of the scheme and that the use

itself was fraudulent or deceitful.

COUNSEL

Kristen A. Williams (argued), Assistant United States

Attorney, Chief, Major Frauds Section; Julian L. Andre,

David H. Chao, Assistant United States Attorneys; Lindsey

G. Dotson, Assistant United States Attorney, Chief,

Criminal Division; Joseph T. McNally, Acting United States

Attorney; Office of the United States Attorney, United States

Department of Justice, Los Angeles, California; for Plaintiff-

Appellee.

Ellis M. Johnston III (argued), Clarke Johnston Thorp &

Rice PC, San Diego, California, for Defendant-Appellant.

4 USA V. MOTLEY

OPINION

BYBEE, Circuit Judge:

Appellant Tamara Motley was convicted after a jury trial

for defrauding Medicare by submitting millions of dollars in

false and fraudulent claims for durable medical equipment

and related services. Motley’s underlying healthcare fraud

is not in dispute. The sole question is whether Motley also

committed aggravated identity theft under 18 U.S.C.

§ 1028A(a)(1) because the companies Motley used to submit

the false claims were enrolled in Medicare under her

relatives’ names, not her own. Aggravated identity theft

carries a mandatory, consecutive two-year prison term if

“during and in relation to” a predicate offense, a defendant

“uses, without lawful authority, a means of identification of

another person.” 18 U.S.C. § 1028A(a)(1). On the eve of

trial, the Supreme Court decided Dubin v. United States, 599

U.S. 110 (2023). Dubin significantly narrowed

§ 1028A(a)(1) by holding that a “defendant’s misuse of

another person’s means of identification” must be “at the

crux of what makes the underlying offense criminal, rather

than merely an ancillary feature of a billing method.” Id. at

114. We hold that Motley’s § 1028A(a)(1) conviction

cannot stand because the government failed to advance a

theory at trial that the use of her relatives’ names was

“critical to the success” of the scheme and that the use itself

was fraudulent or deceitful. United States v. Parviz, 131

F.4th 966, 972 (9th Cir. 2025). We vacate that portion of her

sentence and remand to the district court for resentencing.

USA V. MOTLEY 5

I. BACKGROUND

A. Factual Background

Tamara Motley operated Action Medical Equipment and

Supply, Inc. (Action) and Kaja Medical Equipment &

Supply, Inc. (Kaja), two durable medical equipment (DME)

companies enrolled as Medicare providers. Action was

incorporated in the name of her mother, Beverly Muntz,

while Kaja was incorporated in the name of her nephew,

Bryant Brown. Neither played an active role in the

management of the companies, nor was either implicated in

the fraudulent scheme we describe below.

Medicare permits DME supply companies, physicians,

and other healthcare providers to seek reimbursement for

covered services provided to eligible beneficiaries, typically

individuals aged 65 or older or those with disabilities. To

receive reimbursement, a DME supplier must enroll in

Medicare and certify that it will comply with all rules and

regulations, including not submitting false or fraudulent

claims. Once enrolled, Electronic Data Interchange (EDI)

and Electronic Funds Transfer (EFT) agreements allow

suppliers to submit claims electronically and to receive

payment directly to their business bank account. Electronic

claims include, among other things, the beneficiary’s name

and identifier, the billed item or service, the date of service,

and the supplier’s identifying numbers.

With the help of co-defendants Cynthia Marquez, the

office manager, and Juan Murillo, a repair technician,

Motley orchestrated a scheme to exploit the reimbursement

system. The gist of the scheme was simple: Use patient

information to submit claims for DME and related services

for patients who did not need those items and services and

often did not even receive them.

6 USA V. MOTLEY

The scheme worked as follows. Motley recruited and

paid illegal kickbacks to marketers who brought in patients.

Using lists of eligible Medicare beneficiaries, marketers

solicited patients, referred them to Action and Kaja, and

collected their patient information. Many of these

beneficiaries were elderly or non-English speakers. The

marketers transported beneficiaries not to their regular

physicians, but to complicit physicians who, after cursory

examinations, would write prescriptions for medically

unnecessary DME, including power wheelchairs and

orthotics. At times, the physicians prescribed DME without

even examining the beneficiaries; at other times, they simply

wrote and signed blank prescriptions to be filled in later by

Motley and others. The schemers would then deliver the

medically unnecessary DME, whose value was often falsely

inflated on delivery tickets and claims, to beneficiaries’

homes, where it would collect dust. If no DME was

delivered, delivery tickets were created out of whole cloth.

Motley and others, acting at her direction, would pick up

these prescriptions from the physicians or marketers and,

along with fake delivery tickets they generated, create

documentation supporting the medical necessity and billing

of the DME. Motley then directed Action and Kaja

employees to bill Medicare for the medically unnecessary or

wholly unprovided DME, and to “max out” the amount

Medicare would cover.

When Medicare switched from lump-sum

reimbursements for power wheelchairs to a less lucrative

monthly rental model in 2011, Motley adjusted her scheme.

She transitioned to billing for unnecessary repair and

replacement services. Drawing on the ready-made patient

base, Action and Kaja employees cold-called prior recipients

of wheelchairs, offered free maintenance or equipment, and

USA V. MOTLEY 7

persuaded beneficiaries to undergo unnecessary repairs or

replacements for their power wheelchairs. To the extent that

any services were provided, Action and Kaja technicians

made only brief house calls, typically doing little or no work

beyond replacing a battery. During the house calls, it was

evident that many beneficiaries did not use the wheelchairs

or kept them outside their homes or in the garage. Even so,

the beneficiaries would sign documents—often in English,

despite speaking only Spanish—falsely stating that

additional repair and replacement services had been

performed. Using this documentation and beneficiary

information, the schemers fabricated documentation to make

it appear as if the services had been requested, were

necessary, and had been performed.

The cash poured in. In total, Action and Kaja submitted

more than $24 million in Medicare claims between

November 2006 and November 2016. Medicare paid about

$13.1 million. To cash out, Motley wrote checks from the

Action and Kaja bank accounts, payable to Marquez,

Murillo, and others, with false memo lines purporting to

cover legitimate business expenses.

B. Indictment

For this scheme, the government charged Motley,

Marquez, and Murillo with one count of conspiracy to

launder monetary instruments, 18 U.S.C. § 1956, and twenty

counts of healthcare fraud, id. § 1347. The healthcare fraud

counts corresponded to distinct fraudulent claims submitted

by Action between February 2013 and July 2014 or by Kaja

between March 2014 and May 2016. Motley and Marquez

were also charged with two counts of aggravated identity

theft, id. § 1028A, based on the use of the names of Beverly

Muntz and Bryant Brown—the owners of Action and Kaja,

8 USA V. MOTLEY

respectively—“during and in relation to” the healthcare

fraud. Both co-defendants pled guilty before Motley’s trial;

Marquez’s plea deal excluded the aggravated identity theft

charge.1 Motley’s first trial ended in a mistrial;2 the second

trial, at issue on appeal, began on June 20, 2023.

C. Trial

During a five-day trial, the government called twenty-

eight witnesses, including investigators, former Action and

Kaja employees, Medicare patients and their physicians, and

members of the Medicare Compliance Team. The

government also introduced documentary evidence,

including Action’s and Kaja’s Medicare enrollment

applications, EFT agreements, incorporation documents,

claims records, financial records, and patient files.

Extensive former employee testimony established that

Motley was the effective manager and CEO at Action and

Kaja, responsible for spearheading the fraud scheme. Four

Medicare patients, one patient’s relative, and five physicians

testified that the DME provided was not medically

necessary, and that any repairs or replacement parts provided

years later were likewise unnecessary. For example, one

beneficiary testified that after receiving a power wheelchair

he never used and did not need, two repairmen arrived

1

Marquez pleaded guilty to a two-count superseding indictment, which

charged her with two counts of false statements affecting health care

programs in violation of 18 U.S.C. § 1035(a)(2). Murillo pleaded guilty

to conspiracy to launder monetary instruments in violation of 18 U.S.C.

§ 1956(h).

2

A jury trial was held from February 7 to February 16, 2023. Due to a

dangerous and uncooperative juror, a hung jury resulted, and the district

court declared a mistrial.

USA V. MOTLEY 9

unannounced, and he signed several forms he did not

understand.

The evidence of the underlying fraud scheme and

Motley’s central role in it is not disputed on appeal. At trial,

the government sought to support the § 1028A(a)(1) charge

through Motley’s use of the names of Muntz, her mother,

and Brown, her nephew.

A Medicare expert testified that to obtain a Medicare

provider number and submit claims, the named owners must

agree to comply with Medicare rules and regulations. The

named owners—here, Muntz and Brown—certified, among

other things, that they would “not submit claims for payment

to Medicare knowing they were false or fraudulent or with

deliberate ignorance or reckless disregard of their truth or

falsity.” The expert further explained that Medicare operates

largely on an “honor system” and relies on provider numbers

to match claims with registered providers.

Although Motley effectively managed Action and Kaja,

and Muntz and Brown had minimal involvement, the

Medicare enrollment paperwork listed only Muntz and

Brown as having any official ownership or managerial roles

in the companies. Neither enrollment application identified

Motley, nor did she appear in any supplemental applications

updating ownership and managerial information.

Documentary evidence established that Muntz

incorporated Action in April 2006, and Brown incorporated

Kaja in March 2011. Both Muntz and Brown had signed

EFT authorization agreements, directing Medicare’s

reimbursements to business bank accounts, both of which

listed Motley as an authorized signatory. Finally, powers of

attorney showed that Muntz and Brown had granted Motley

full authority to run the companies.

10 USA V. MOTLEY

In short, the government’s trial evidence supporting the

aggravated identity theft count rested on the fact that

although Action and Kaja were legally owned, incorporated

by, and enrolled in Medicare through Muntz and Brown,

Motley effectively ran the companies. The government also

emphasized that both powers of attorney and Medicare

enrollment agreements require lawful use. There was no

evidence before the jury, however, that Motley lacked

permission or authorization from Muntz or Brown to submit

claims or operate the companies; no evidence that Motley,

rather than Muntz or Brown, was responsible for enrollment;

no evidence as to why the companies were enrolled under

her relatives’ names; and no evidence that Motley could not

have enrolled in her own name or needed their names to

submit claims.

D. Jury Verdict and Sentence

The jury convicted Motley on all counts. The district

court sentenced Motley to 180 months in custody, including

24 consecutive months, the statutory minimum, on the

aggravated identity theft counts. The court also ordered

Motley to pay restitution of $13,097,237.10 to Medicare and

$10,185.70 to Medi-Cal. Motley timely appealed her

convictions on the aggravated identity theft counts only.

II. DISCUSSION

Motley submits that the government presented

insufficient evidence to show that the use of her relatives’

names was at the “crux” of the underlying healthcare fraud.

We agree.

A. Standard of Review

The parties dispute the standard of review for this appeal.

A Rule 29 sufficiency-of-the-evidence claim is typically

USA V. MOTLEY 11

reviewed de novo. United States v. Grovo, 826 F.3d 1207,

1213 (9th Cir. 2016); United States v. Sullivan, 522 F.3d

967, 974 (9th Cir. 2008) (per curiam). But a Rule 29 motion

that is not made or not properly preserved is reviewed for

plain error. United States v. Pelisamen, 641 F.3d 399, 409

& n.6 (9th Cir. 2011). Generally, a Rule 29 motion made at

the close of the government’s evidence must be renewed if

the defense presents additional evidence, or else plain-error

review applies. Id. at 409 n.6. But we have also applied de

novo review where the defendant moves for acquittal at the

close of the government’s evidence and does not renew the

motion after presenting additional evidence. United States

v. Stewart, 420 F.3d 1007, 1012, 1014 (9th Cir. 2005);

United States v. Carranza, 289 F.3d 634, 641 (9th Cir.

2002). In United States v. Esquivel-Ortega, 484 F.3d 1221

(9th Cir. 2007), we established a futility exception to the

renewal requirement. There, after moving for judgment of

acquittal at the close of the government’s case, the defendant

introduced minimal additional evidence, including a voice

exemplar and an audio tape, which were played for the jury.

Id. at 1224. The defense did not then renew the motion at

the close of all evidence; even so, we applied de novo review

because: “Given the nature of the evidence, and the fact that

the court had denied Esquivel’s motion for acquittal only a

few moments earlier, requiring Esquivel to renew his motion

at that point would have been ‘an empty ritual.’” Id. at 1225

(citation omitted).

Here, after the government rested its case on the final day

of trial, defense counsel moved for a judgment of acquittal

and confirmed that the record reflected the Rule 29 motion.

Defense counsel then presented a final witness related to

handwriting analysis. Defense counsel did not renew its

motion for judgment of acquittal after its last witness. A

12 USA V. MOTLEY

renewed motion would have been the better practice,

eliminating any question whether the motion was preserved.

Nonetheless, as in Esquivel-Ortega, we think Motley did

enough to preserve her objection. After making the Rule 29

motion, the defense’s additional evidence was minor and

almost certainly would not have altered the district court’s

assessment of the sufficiency of the evidence. Because “it

would have been futile for” Motley “to renew h[er] motion

following” the final testimony, we review de novo. Id. “In

any event, the distinction is largely academic, given that,

whether review is de novo or for plain error, we must give

great deference to the jury verdict and ‘must affirm if any

rational trier of fact could have found the evidence

sufficient.’” Pelisamen, 641 F.3d 409 n.6 (citation omitted).

In this context, plain error review is only “theoretically more

stringent than the standard for a preserved claim.” United

States v. Flyer, 633 F.3d 911, 917 (9th Cir. 2011) (internal

quotation marks omitted).

Review of a sufficiency-of-the-evidence challenge

requires us “to determine whether ‘after 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.

Nevils, 598 F.3d 1158, 1163–64 (9th Cir. 2010) (en banc)

(quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). To

the extent any questions of statutory interpretation are

disguised as sufficiency-of-the-evidence arguments, we

review them de novo. United States v. Hong, 938 F.3d 1040,

1050 (9th Cir. 2019); United States v. Osuna-Alvarez, 788

F.3d 1183, 1185 (9th Cir. 2015) (per curiam).

USA V. MOTLEY 13

B. Section 1028A(a)(1) and Dubin’s Crux Test

The aggravated identity theft statute provides that

“[w]hoever, during and in relation to” certain enumerated

felonies, “knowingly transfers, possesses, or uses, without

lawful authority, a means of identification of another person

shall, in addition to the punishment provided for such felony,

be sentenced to a term of imprisonment of 2 years.” 18

U.S.C. § 1028A(a)(1). Healthcare fraud—for which Motley

was convicted—is a qualifying predicate felony. See id.

§ 1028A(c)(4). The only element of the § 1028A(a)(1)

offense challenged on appeal is whether, in light of Dubin,

Motley “use[d]” her relatives’ names (a means of

identification) “during and in relation to” her healthcare

fraud.

The Supreme Court in Dubin established a new operative

test for § 1028A(a)(1). 599 U.S. at 114. Recognizing that

§ 1028A(a)(1)’s broad statutory language could sweep in

“virtually all cases where a defendant employs a means of

identification to facilitate a crime,” the Supreme Court

sought to cabin such expansive readings. Id. at 127. The

defendant, David Dubin, submitted falsely elevated claims

for reimbursement to Medicaid by overstating the

qualifications of an employee who performed psychological

testing on patients. Id. at 114. The government charged

Dubin not only with healthcare fraud, 18 U.S.C. § 1347, but

also with aggravated identity theft, § 1028A(a)(1), because

the fraudulent bills included patients’ names and Medicaid

reimbursement numbers. Id. at 114–15. The issue before

the Court was whether Dubin “used” his patients’ means of

identification “during and in relation to” his healthcare

fraud. Id. at 116–17.

14 USA V. MOTLEY

1. Dubin’s Statutory and Contextual Analysis

Dubin started with the statute’s text. Recognizing the

elasticity of the terms “use” and “in relation to,” the Court

noted that “[r]esort to context” would be “especially

necessary” to determine their proper scope. Id. at 119. The

Court first looked to the statute’s title: “Aggravated identity

theft.” Id. at 120. The title, the Court observed, was not only

“far more targeted” than neighboring statutes but was also

set apart from the “identity fraud” statute. Id. at 121. From

these contextual clues, the Court concluded that § 1028A

must be “focused on identity theft specifically, rather than

all fraud involving means of identification.” Id. The

ordinary understanding of “identity theft,” not “garden-

variety overbilling,” lies “at the core of § 1028A.” Id. at 122.

The Court then applied the interpretative canon noscitur

a sociis to § 1028A(a)(1)’s trio of operative verbs—

“transfers,” “possesses,” and “uses.” See id. at 126.

“Because ‘transfer’ and ‘possess’ channel ordinary identity

theft . . . ‘uses’ should be read in a similar manner . . . .” Id.

Drawing from dictionaries, the Court observed that “identity

theft covers both when ‘someone steals personal information

about and belonging to another . . . and uses the information

to deceive others.’” Id. (second emphasis added) (quoting

Identity theft, Black’s Law Dictionary 894 (11th ed. 2019)).

The three verbs “capture various aspects of ‘classic identity

theft.’” Id. (citation omitted). “Possess” and “transfer”

connote theft, while “use” captures a different aspect of

classic identity theft: that “involving fraud or deceit about

identity.” Id.

Finally, the Court sought guidance from § 1028A(a)(1)’s

list of predicate offenses. Id. at 127–29. Some predicate

crimes lack any statutory minimum, whereas § 1028A(a)(1)

USA V. MOTLEY 15

carries a particularly harsh two-year minimum. Id. at 127.

The government’s “boundless reading” risked “collaps[ing]

the enhancement into the enhanced.” Id. at 128. Because

almost any healthcare fraud involves some form of using

another’s name, the Court cautioned against sweeping all

these into § 1028A(a)(1) “independent of whether the name

itself had anything to do with the fraudulent aspect of the

offense.” Id. Instead, § 1028A(a)(1) “targets situations

where the means of identification itself plays a key role—

one that warrants a 2-year mandatory minimum.” Id. at 129

(emphasis added).

Based on its contextual and statutory analysis, the Court

concluded that to “use” another person’s means of

identification “during and in relation to” a predicate offense

under § 1028A(a)(1), a “defendant’s misuse of another

person’s means of identification” must be “at the crux of

what makes the underlying offense criminal, rather than

merely an ancillary feature of a billing method.” Id. at 114.

Dubin failed to meet this bar through the inclusion of a

patient’s name on a Medicare reimbursement claim because

that use “was not at the crux of what made the underlying

overbilling fraudulent.” Id. at 132. Instead, “[t]he crux of

the healthcare fraud was a misrepresentation about the

qualifications of petitioner’s employee” and “[t]he patient’s

name was an ancillary feature of the billing method

employed.” Id.

Two requirements animate Dubin’s crux test. First,

Dubin equates the statutory term “use” with “misuse.” Id. at

114. This captures the Court’s repeated requirement that the

“use” itself be “fraudulent” or “deceitful.” See, e.g., id. at

123, 126, 132. “When the underlying crime involves fraud

or deceit,” the Court specified, the means of identification

must be used “specifically in a fraudulent or deceitful

16 USA V. MOTLEY

manner.” Id. at 117 (summarizing the petitioner’s “more

targeted reading”). The Court likewise maintained that

“identity theft is committed when a defendant uses the

means of identification itself to defraud or deceive.” Id. at

123 (emphasis added). Read together, the Court’s warning

against collapsing § 1028A(a)(1)’s enhancement into the

predicate offense and its insistence that the use itself be

fraudulent or deceitful make clear that the fraudulent or

deceitful aspect of the identity use must be distinct from—

and not duplicative of—the fraud in the underlying

healthcare crime. The use of identifiers, in other words,

must stand on its own as fraudulent or deceitful; it cannot be

so considered simply because it is part of a broader

fraudulent scheme. Otherwise, the enhancement would fail

to meaningfully distinguish the aggravated-identity-theft

charge.

Second, for this misuse to be “at the crux of the

criminality,” the means of identification specifically must be

a “key mover” that carries out the fraud. Id. at 123. In causal

terms, there must be “more than a causal relationship, such

as ‘facilitation’ of the offense or being a but-for cause of its

‘success.’” Id. at 131 (citation omitted). Although the Court

did not explicitly state how strong of a causal nexus is

required for § 1028A(a)(1) liability to attach, we have

acknowledged that the misuse of identity must be “critical to

the success” of the underlying fraud. Parviz, 131 F.4th at

972.

2. Caselaw Pre-Dubin

Before Dubin, our caselaw interpreting § 1028A(a)(1)

pulled in two directions; Dubin disapproved of one in favor

of the other. We first addressed the term “use” in

§ 1028A(a)(1) in United States v. Hong, 938 F.3d 1040 (9th

USA V. MOTLEY 17

Cir. 2019). There, the defendant falsely claimed his massage

treatments as Medicare-eligible physical therapy. Id. at

1043. We adopted the First and Sixth Circuit’s “narrow[]

constru[ction]” of “use” in United States v. Berroa, 856 F.3d

141 (1st Cir. 2017) and United States v. Medlock, 792 F.3d

700 (6th Cir. 2015). Hong, 938 F.3d at 1050. In Berroa, the

First Circuit held that physicians with fraudulent licenses

who filled prescriptions had not “used” the patients’

identities under § 1028A(a)(1) because they had not

“attempt[ed] to pass themselves off as the patients.” Berroa,

856 F.3d at 156. In Medlock, the Sixth Circuit established a

similar rule. An ambulance service mischaracterized the

medical necessity of stretchers on Medicare claims to obtain

reimbursement. 792 F.3d at 703–04. The Sixth Circuit

reversed the § 1028A(a)(1) convictions, finding that the

defendants had not “use[d]” the names and Medicare

identification numbers of beneficiaries by including them on

the fraudulent claims. Id. at 708, 712. The defendants did

not “attempt to pass themselves off as anyone other than

themselves” and had only “misrepresented how and why the

beneficiaries were transported.” Id. at 707.

Hong drew from the First Circuit’s legislative-history

analysis showing that identity theft always “involved the

defendant’s use of personal information to pass him or

herself off as another person, or the transfer of such

information to a third party for use in a similar manner.” 938

F.3d at 1051 (quoting Berroa, 856 F.3d at 156). We then

adopted the First Circuit’s rule that “use” under

§ 1028A(a)(1) “require[s] that the defendant attempt to pass

him or herself off as another person or purport to take some

other action on another person’s behalf.” Hong, 938 F.3d at

1051 (quoting Berroa, 856 F.3d at 156). Applying that rule

to the facts in Hong, we held that because “[n]either Hong

18 USA V. MOTLEY

nor the physical therapists ‘attempt[ed] to pass themselves

off as the patients,’” “Hong did not ‘use’ the patients’

identities within the meaning of the aggravated identity theft

statute.” 938 F.3d at 1051 (quoting Berroa, 856 F.3d at

156); see also id. at 1051 n.8 (noting that our sister circuits

have affirmed § 1028A(a)(1) convictions of defendants that

“purport[ed] to take some other action on another person’s

behalf through impersonation or forgery” (alteration in

original) (quotation marks and citations omitted)).

Later that term, we applied Hong’s newly articulated

standard in United States v. Gagarin, 950 F.3d 596 (9th Cir.

2020). The defendant had “purported to take action on

behalf of her cousin” by forging her cousin’s signature to

open a fraudulent life insurance policy as part of a scheme to

collect advances. Id. at 603. We upheld the § 1028A(a)(1)

conviction and distinguished the facts from Hong: By

submitting the insurance application in her cousin’s name,

the defendant had “‘attempt[ed] to pass [herself] off’ as her

cousin through forgery and impersonation.” Id. at 604

(alteration in original) (quoting Hong, 938 F.3d at 1051).

The defendant’s use of the signature “obscure[ed] her own

role in the fraudulent application” and “was thus central to

the fraud.” Id.

Finally, in yet a third case that term, we confronted facts

between Hong and Gagarin; the middle path we carved

broadened Hong’s targeted rule. United States v. Harris,

983 F.3d 1125 (9th Cir. 2020). In Harris, the defendant

submitted fraudulent claims to TRICARE. Id. at 1126. The

defendant signed the claims in her own name but listed a

speech pathologist as the provider even though no services

were performed, and the pathologist had not authorized her

to do so. Id. We found that neither Hong nor Gagarin

“directly control[led] the outcome here”; instead, we

USA V. MOTLEY 19

concluded that the defendant’s actions fell within the ambit

of § 1028A(a)(1) even though she “did not try to pass herself

off as [the speech pathologist] through forgery or

impersonation.” Id. at 1127. To reach beyond Hong’s rule,

we reasoned that “the statutory text does not suggest that

‘use’ ‘refers only to assuming an identity or passing oneself

off as a particular person.’” Id. at 1128 (quoting United

States v. Michael, 882 F.3d 624, 627 (6th Cir. 2018)).

Instead, “[t]he salient point is whether the defendant used the

means of identification to further or facilitate the health care

fraud.” Id. (quoting Michael, 882 F.3d at 628) (internal

quotation marks omitted).

The broadened standard that Harris adopted—that to

“use” means to “further or facilitate the health care fraud”—

was the government’s position that the Supreme Court

rejected in Dubin. See Dubin, 599 U.S. at 117, 131 (noting

the government’s position as “use of [a] means of

identification [that] ‘facilitates or furthers’ the predicate

offense in some way” and holding that “being at the crux of

the criminality requires more than . . . ‘facilitation’ of the

offense”); see also id. at 118 (characterizing the

government’s reading as “near limitless” and announcing “a

narrower reading”). Thus, Dubin requires us to abandon the

more sweeping standard we relied on in Harris.

At the same time that Dubin rejected the broad

furthering-or-facilitating standard, it approved of “more

restrained readings” and cited our decision in Hong as one

example. See id. at 116 & n.2. Thus, Hong’s original rule—

that “use” entails purporting “to pass [oneself] off as another

person” or “tak[ing] some other action on another person’s

behalf through impersonation or forgery”—still stands.

Hong, 938 F.3d at 1051 & n.8 (quotation marks and citation

omitted). We will therefore rely on Hong rather than Harris.

20 USA V. MOTLEY

3. Caselaw Post-Dubin

We have interpreted and applied Dubin’s test in two

published decisions. First, in United States v. Ovsepian, 113

F.4th 1193 (9th Cir. 2024), we applied Dubin’s “crux” test

to a “possession” theory § 1028A charge. Id. at 1208. The

defendant engaged in a “prescription mill” conspiracy that

generated thousands of prescriptions for expensive anti-

psychotic medications. Id. at 1197. With the help of

complicit doctors and pharmacists writing and filling scripts,

conspirators billed Medi-Cal and Medicare for fraudulent

prescriptions before diverting the drugs to the black market

for resale to the pharmacies. Id. at 1197–98. The

government’s narrow argument on appeal was that

§ 1028A(a)(1) liability attached because the defendant had

retained and possessed a patient’s file onsite at the clinic “so

that they would appear to be compliant with the rules” in

case of an audit. Id. at 1207. We held that although

possessing the patient’s means of identification might have

facilitated the scheme by giving the medical clinic an “air of

legitimacy” sufficient to pass an audit, under Dubin’s “crux”

test, “merely facilitating a predicate offense is not enough.”

Id. at 1207–08; see also id. at 1208 (observing that retaining

a “patient file to protect against a possible audit did not play

a ‘key’ or ‘integral’ role in the conspiracy to commit

healthcare fraud”).

We then addressed a § 1028A(a)(1) “use” theory in

Parviz, 131 F.4th 966. The defendant was convicted of

passport fraud and aggravated identity theft after she

submitted a fraudulent passport application on behalf of her

minor daughter, over whom she had no parental rights. Id.

at 968–70. To circumvent the requirement that her daughter

appear in person for the application, the defendant submitted

a false letter with a forged signature from a nurse practitioner

USA V. MOTLEY 21

describing the need for a medical exemption. Id. at 968.

We upheld the conviction on appeal, finding that the

defendant’s actions constituted an “impersonating use” of

the identifying information and “involved fraud as to ‘who’

was making the false representations in the letter.” Id. at

972. We also held that a rational juror could find that the use

of the nurse’s name, registered nursing number, and

signature on the letter “was central to the fraudulent letter’s

objective of establishing a medical excuse,” which was in

turn “critical to the success of the fraudulent passport

application.” Id. at 971–72. Thus, the misuse of the nurse

practitioner’s identity lay at the crux because the defendant

could not otherwise have presented a successful medical

exemption, which was necessary for her fraudulent scheme.

***

The throughline that emerges is that when the predicate

offense involves fraud or deceit, Dubin requires that the

manner through which the underlying offense is carried out

also involve the “fraudulent or deceitful” use of another’s

means of identification. Dubin held that the “fraudulent or

deceitful” use of another’s identification must be in addition

to, and not duplicative of, the fraud or deception of the

underlying crime; the use of another’s identity cannot just

form part of (or be used in) the scheme, as this is inevitable

in almost all healthcare fraud. Instead, a “fraudulent or

deceitful” use requires the means of identification itself to be

used as the vehicle of misrepresentation in the predicate

offense. After all, Dubin directed courts to focus on

“offenses built around what the defendant does with the

means of identification in particular.” 599 U.S. at 122.

We will observe here that it is easy to conflate the fraud

and deception in the underlying scheme with the fraudulent

22 USA V. MOTLEY

and deceitful misuse of another’s identity. So a

counterfactual may help us separate the strands of ordinary

fraud from a fraudulent use of another’s identity: If, after

removing the underlying predicate criminal behavior from

the equation, the use of the means of identification is still

considered fraudulent or deceitful, then the use stands on its

own as a fraudulent or deceitful use. If, however, the use of

the means of identification, considered apart from the

predicate offense, is no longer fraudulent or deceptive, then

the use falls outside the ambit of § 1028A(a)(1) because any

fraud or deceit was merely residual to the fraud and deceit

inherent in the predicate crime.

Let’s consider how this mode of analysis worked in

Dubin and our pre- and post-Dubin cases. In Dubin, without

the predicate criminal conduct of inflating Medicare claims

by misrepresenting the psychologist’s qualifications, there is

nothing wrong with using real patients’ identifiers on claims;

the overall scheme is Medicare fraud, but there has been no

fraudulent use of the patients’ names. Similarly, in

Ovsepian, absent the fraudulent prescription mill, keeping a

patient’s records in an onsite file in case of an audit is not

fraudulent or deceitful. The same is true in Hong: without

the fraud of the predicate healthcare offense—

misrepresenting massages as medically necessary physical

therapy—the inclusion of a patient’s identifiers on Medicare

claims is not fraudulent or deceitful. In Dubin, Ovsepian,

and Hong, the Supreme Court and we reversed the

aggravated identity theft enhancement. By contrast, in

Parviz, apart from the criminal act of applying for a

fraudulent passport, forging a medical professional’s

signature on a false letter is still a fraudulent and deceptive

use of another’s identity. Likewise, in Gagarin, even apart

from the criminal scheme to receive bonuses on fraudulent

USA V. MOTLEY 23

life insurance policies, the defendant pretended to be her

cousin by forging her signature and submitting a life

insurance policy application in her name, which constitutes

a separate form of fraud. In both of these cases, we affirmed

the aggravated identity theft enhancement.

In short, the predicate offense must be accomplished

through the deployment of a fraudulent or deceptive use of

means of identification—most often by impersonating or

passing oneself off as someone else. And the fraudulent

aspect of using the means of identification must stand on its

own, separate from the fraud of the underlying crime.

We turn to whether the government presented sufficient

evidence here.

C. The Government’s Theories

At trial, the government presented several theories as to

how Motley’s use of her relatives’ names was at the crux of

the underlying healthcare fraud. We address each in turn.

1. Enablement Theory

The government’s first theory is that Motley’s use of her

relatives’ names was at the crux because it enabled her to bill

Medicare and receive payments. According to the

government, Medicare “trusted” in the representations from

Muntz and Brown “about who owned and controlled the

companies and in the certifications those individuals

purportedly made.”

To support this theory, the government presented

testimony from a Medicare expert that the owner of a

medical supply company must be listed on its enrollment

application. The enrollment applications request

information about anyone with ownership or management

24 USA V. MOTLEY

interests in the company and require an authorized official to

certify compliance with Medicare regulations. The

government then introduced Action’s and Kaja’s Medicare

enrollment applications. Action’s application, dated July 10,

2006, listed Muntz as the owner and authorized official.

Kaja’s application, dated November 7, 2012, listed Brown

as the owner, CEO, and authorized official. Muntz and

Brown also signed the applications, indicating their intent to

ensure that the provider complies with “all applicable

statutes, regulations, and program instructions.” 42 C.F.R.

§ 424.510(d)(3). Neither application identified Motley.

But this evidence, even viewed in the light most

favorable to the prosecution, fails to establish § 1028A(a)(1)

liability under Dubin. First, the government did not present

evidence that this omission somehow enabled the fraud.

Nothing was offered at trial to suggest that Motley was

ineligible to register as a provider. To be sure, the claims

were approved because they came from providers enrolled

in Medicare, but the government failed to show that Muntz’s

and Brown’s specific identities had any bearing on the

scheme, much less that they were used in a fraudulent or

deceitful manner. In other words, Motley could have signed

the enrollment forms herself and still “successfully”

completed the fraud scheme.

No evidence showed that Muntz’s and Brown’s names

on the enrollment applications played any role in convincing

Medicare to accept the fraudulent claims. In fact, the

electronic claims in evidence include only the provider

numbers linked to Action and Kaja, not the names of Muntz

or Brown. The government offered no evidence at trial that

Motley would have been unable to obtain a provider number

USA V. MOTLEY 25

on her own or that Medicare would have rejected the claims

if the companies had been enrolled under Motley’s name. 3

Parviz is an illustrative comparison. 131 F.4th 966. As

Parviz was not a medical professional, she could not have

written the fraudulent medical excuse without using

someone else’s means of identification. Id. at 972 (noting

that Parviz “attach[ed] his name and medical position to the

particular false assertions that were critical to the success of

the fraudulent passport application”). A government

employee testified that he approved the passport application

specifically because he believed the note was written by a

licensed medical professional on the letterhead of a

legitimate medical facility. Id. at 971. In stark contrast, the

jury in this case heard nothing suggesting that Motley

needed to operate through companies incorporated and

enrolled in someone else’s name to carry out the fraud.

Furthermore, in Parviz, the government showed that the

particular identity used—a licensed medical professional

with no relation to the child—was both a key mover and

critical to the crime’s success. Here, by contrast, no

government witness testified that Motley’s claims were

accepted because of the enroller’s identity—specifically,

that it was Muntz’s and Brown’s names and not Motley’s on

the forms that opened the door for the claims’ approval. And

because the jury was not presented with any evidence about

how Medicare would have reacted had Motley’s name been

3

In its answering brief on appeal, the government contends that Motley

may have been ineligible to enroll the companies as Medicare providers

herself due to her criminal record. But these past convictions were not

presented at trial, and it is unclear whether they would have barred

Motley from applying herself. On appeal, we cannot affirm a criminal

conviction on the basis of a theory not presented to the jury. Chiarella

v. United States, 445 U.S. 222, 236 (1980).

26 USA V. MOTLEY

on the enrollment documents instead, the government did

not show that the use of Muntz’s and Brown’s names was

“critical to the success.” Id. at 972.

The Medicare expert added that providers must submit

supplemental enrollment applications whenever there is new

“information about who owns or controls or manages the

business.” Given Motley’s managerial role in the

companies, it may have violated Medicare regulations to

omit her, but this does not establish a fraudulent or deceitful

“use” under Dubin. The government presented no evidence

that the omission was purposeful or fraudulent or that it

played a critical role in the fraud. Thus, even with the

omission, Motley could have run Action and Kaja in an

honest fashion; any misdirection in who ran Action and Kaja

was not integral to the fraudulent scheme she perpetrated on

Medicare. Further, even if we thought the omission was

relevant, as the original enrollers and authorized officials, it

was Muntz and Brown—not Motley—who were responsible

for updating the enrollment applications. See 42 C.F.R.

§ 424.510(d)(3)(ii) (“[T]he only acceptable signature on the

enrollment application to report updates or changes to the

enrollment information is that of the authorized official

currently on file with Medicare.”).

2. Concealment Theory

The government’s next theory at trial was that the use of

her relatives’ names was at the crux of the fraud by allowing

Motley to conceal her involvement. In closing argument to

the jury, the prosecutor stated: “[Motley] hid behind her

relatives on the Medicare enrollment documentation from

the very start. She tried to put them out front as the

responsible parties, the ones that Medicare would come

looking for if it had any question about what was going or

USA V. MOTLEY 27

any problems with what was going on at Action and

Kaja . . . .” But this theory fails on multiple fronts.

There was no evidence before the jury that Motley’s use

of her relatives’ names concealed her role or that she

intended it to. First, it was no secret that Motley controlled

the companies. Multiple government witnesses, including

investigators, testified that Motley would hold herself out as

the “manager in charge” or the “owner.” At trial, Special

Agent Rochelle Wong testified that she had never

interviewed Muntz and had no intention to do so, as it was

apparent who was in charge. The jury saw a business

agreement between Kaja and Motley, as well as

organizational charts listing Motley as holding various

officer positions. In short, if Motley sought to conceal her

ties to the companies, she failed, and she did not do so by

using her relatives’ names.

The strongest trial evidence for the concealment theory

was a former employee’s testimony that during a 2015 audit

of Kaja, co-schemer Marquez instructed her to characterize

both Motley and her as “consultants.” But even viewing this

evidence in the light most favorable to the prosecution, it

merely reveals that Marquez—not Motley—wanted to

minimize their roles. More importantly, because the

employee was not instructed to shift blame to Muntz and

Brown, any attempted concealment was unrelated to the use

of their names. Therefore, no rational juror could find that

the fact that Motley ran Action and Kaja was at the crux of

the fraud.

The government also contended that Motley’s use of her

relatives’ names concealed that the same person controlled

both companies. But this theory also fails. First, it is unclear

how or why hiding the two companies’ joint operation had

28 USA V. MOTLEY

anything to do with enabling the ongoing fraud. Second,

trial evidence shows that this joint ownership was no secret.

At trial, Agent Wong testified that she knew that “some

of . . . the employees were shared between Action and Kaja.”

Even if the government showed that the use concealed

Motley’s role from the government, the concealment theory

fails for a more fundamental reason: Motley’s use of

Muntz’s and Brown’s names was not itself deceptive toward

Medicare. The government’s trial evidence—Action’s and

Kaja’s enrollment applications and incorporation

documents—do not support the claim that Motley’s use was

“in a manner that is fraudulent or deceptive.” Dubin, 599

U.S. at 132. First, although the Medicare enrollment

applications and supplemental enrollment forms listed only

Muntz and Brown, the articles of incorporation showed that

Action and Kaja were incorporated by, and legally owned

by, Muntz and Brown, not by Motley. As the legal owners,

Muntz and Brown—not Motley—were required to be listed

on the enrollment applications. See 42 C.F.R.

§ 424.510(d)(3)(ii). And given that ownership, it is not

unusual that they certified compliance with Medicare’s

rules. It is also not unusual—and certainly not illegal—that

Motley ran a company owned by a relative.

Second, the government introduced only the enrollment

applications; it offered no evidence that Motley personally

submitted or signed them on behalf of Muntz or Brown.

Without evidence that Motley, rather than Muntz and

Brown, incorporated the companies or enrolled them in

Medicare, Motley’s “use” cannot be premised on the

enrollment paperwork and extends, at most, to the

submission of fraudulent claims through the companies. But

Muntz’s and Brown’s names do not even appear on the

USA V. MOTLEY 29

fraudulent claims; only Action’s and Kaja’s provider

numbers do.

Third, the fact that Motley submitted claims on behalf of

the companies, when viewed in isolation, was not deceptive.

Medicare does not require the person who enrolls the

provider to be the person who submits electronic claims.

The jury saw the Medicare EDI enrollment agreements

signed by Brown and Muntz stating that the provider “will

be responsible for all Medicare claims submitted . . . by

itself, its employees, or its agents.” (emphasis added). As

an employee of Action and Kaja, Motley was authorized to

submit claims on behalf of the companies, even if her name

was not on the enrollment application. Because it was

perfectly lawful, ordinary, and expected that she, as an

employee, submit claims for the companies, Motley did not

“purport[] to take some . . . action on another person’s behalf

through impersonation or forgery.” Hong, 938 F.3d at 1051

& n.8 (citation and quotation marks omitted). Thus,

Motley’s use of her relatives’ names in conjunction with the

submission of claims did not stand on its own as fraudulent

or deceptive toward Medicare. The claims themselves were,

of course, fraudulent or deceptive, but the fraud had nothing

to do with Brown’s and Muntz’s names.

The government also failed to show that Motley’s use of

her relatives’ identities was fraudulent or deceptive toward

Muntz and Brown. No evidence was presented that Motley

had stolen or taken them without permission, or that she was

“concealing” the use of her relatives’ identities from them.

In fact, the trial evidence suggested that Muntz and Brown

knew that Motley was operating the companies in their

names: Both had executed powers of attorney authorizing

Motley to act on their behalf. Indeed, the government’s

theory at trial was that the fraudulent or deceitful aspect of

30 USA V. MOTLEY

Motley’s use derived from a use within an unlawful scheme,

not that it was unauthorized by Muntz or Brown. The

prosecutor stated to the jury that the powers of attorney

“permit[] defendant to participate in any legal business of

any sort. But, . . . this business was anything but legal.”

Motley certainly used Muntz’s and Brown’s companies to

facilitate illegal Medicare fraud, but she did not steal their

identities or use them without permission. As explained

above, mere use of another’s identity within an unlawful

scheme—without more—is not a use “in a manner that is

fraudulent or deceptive” under Dubin. 599 U.S. at 132. By

failing to show that the use “involv[ed] fraud or deceit about

identity,” id. at 126, independent of the underlying scheme,

the government’s theory “collapses the enhancement into the

enhanced,” id. at 128. The government’s theory in this case

would permit a nearly “limitless” reading of § 1028A, which

is precisely the reading the Supreme Court rejected in Dubin.

See id. at 118.

And even if Muntz and Brown were unaware of Motley’s

criminal use of their companies, their grievance would be

that she betrayed their trust and their companies, not that she

stole their identities. The Supreme Court cautioned that the

two-year mandatory sentence is meant for a “particularly

serious form of identity theft” and that § 1028A(a)(1) should

not be read in a manner that turns the “core” of this serious

identity theft offense “into something the ordinary user of

the English language would not consider identity theft at

all.” Id. at 124. On these facts, a reasonable person may find

it unseemly that Motley mismanaged her relatives’

companies, but they would not label Motley’s conduct as

“identity theft.” This is especially true considering Muntz

and Brown had executed powers of attorney to Motley. The

government’s theory to the contrary would turn nearly every

USA V. MOTLEY 31

employee who commits fraud in the course of their

employment into an aggravated identity thief. The Supreme

Court plainly rejected “such a boundless interpretation.” Id.

at 114.

3. Audit Theory

Finally, the government’s “audit” theory fares no better.

As the government sees it, Medicare conducts regular

unannounced visits to the facilities of enrolled providers, and

having Action and Kaja enrolled in another’s name

permitted Motley to pass these inspections and continue the

fraud. At closing, the prosecutor contended that the use of

Muntz’s and Brown’s names played “a central role in

passing inspections that let the defendant’s companies keep

billing and getting paid.”

But this theory is unsupported by the evidence and

foreclosed by the law. On this record, no rational juror could

find that Motley fraudulently or deceptively used her

relatives’ names to pass inspections. At trial, the compliance

officers testified to receiving and reviewing documents,

personnel charts, and training materials during visits. When

compliance officers or other investigators visited Action and

Kaja, Motley conducted the exit interviews, signed the

compliance forms, and provided the records. During these

visits, Motley was perfectly honest regarding the

absenteeism of owners Muntz and Brown. For example, on

one occasion, she told a compliance officer that although she

was the manager in charge, her nephew was the owner but

“travels and does not come into the business during the

week.”

There was no evidence that this ownership structure

allowed, or even facilitated, Action and Kaja to pass

inspections. To the contrary, the record suggests that

32 USA V. MOTLEY

Motley’s transparency about the idiosyncratic bipartite

ownership–control structure and the titular owners’ minimal

involvement and absence during inspections only raised

suspicions, contributing to Kaja’s failing score in 2016.

Motley indeed deceived compliance officers into giving

passing scores in 2010 and 2012, but this had nothing to do

with the use of Muntz’s and Brown’s names. Instead, the

record suggests the fraud went undetected for as long as it

did due to the elaborate ghost apparatus, including a

compliant procedures and policies manual; patient and

personnel files; delivery logs maintained and provided to

compliance officers; and even employees pretending to be

patients on follow-up phone calls to compliance officers.

Even if a rational juror could find that Motley’s use of

her relatives’ names helped pass inspections, that theory is

foreclosed by the law. In Ovsepian, we rejected a nearly

identical legal argument from the government. There, the

defendant maintained a copy of a patient’s identifying

information without authorization in a “patient file onsite so

that they would appear to be compliant with the rules in the

event [the company] was audited.” 113 F.4th at 1207. We

held that even though keeping the patient’s file “could have,

and perhaps did, allow the conspiracy to continue

undetected,” it was not “at the ‘crux’ of the conspiracy to

commit healthcare fraud.” Id. at 1207–08. We found that

possessing the file “onsite may have lent” “the air of

legitimacy” and helped “to survive an audit,” but it was

ancillary to the healthcare fraud conspiracy because it

“merely facilitated its commission.” Id. at 1208. Motley’s

case is even weaker because there is no evidence that

identifying Brown and Muntz on the enrollment forms

helped the companies pass inspections.

USA V. MOTLEY 33

D. The Trial Record Fails to Establish that Motley’s Use

Was at the Crux.

On this record, no rational juror could find that Motley’s

use of Muntz’s and Brown’s names was “at the crux” of the

healthcare fraud. Viewed in the light most favorable to the

prosecution, the evidence presented at trial was insufficient

to allow any rational juror to find, beyond a reasonable

doubt, that Motley’s use of her relatives’ names was the

“specifically . . . fraudulent or deceitful manner” through

which the scheme was carried out, such that it went to “the

crux” of the healthcare fraud. Dubin, 599 U.S. at 117. The

crux of the underlying healthcare fraud was billing for

medically unnecessary DME and for repairs that never took

place. The fact that the companies were incorporated and

enrolled in Medicare under names other than that of the

defendant was “merely an ancillary feature of a billing

method.” Id. at 114.

The government failed to present a theory at trial

showing that Motley “use[d] the means of identification

itself to defraud or deceive,” id. at 123 (emphasis added), and

did so “in a manner that is fraudulent or deceptive,” id. at

132. Although the government showed that Motley’s use

occurred within an unlawful and fraudulent scheme, it did

not show that the use itself was fraudulent or deceptive,

either toward the identity holders or toward Medicare.

Motley did not steal or use the means of identification

without permission, nor did the use induce Medicare to pay

claims it otherwise would have denied, nor did it shift

apparent responsibility from Motley to Muntz and Brown.

This is further illustrated by the fact that when

considered in isolation, there is nothing deceptive or

fraudulent about Motley’s use of Muntz’s and Brown’s

34 USA V. MOTLEY

names. Without the scheme submitting fraudulent claims for

unprovided or unnecessary services, Motley’s claims

submissions on behalf of Action and Kaja were perfectly

lawful. Medicare does not require the individual who enrolls

the supplier to be the same person who submits electronic

claims. Action and Kaja were enrolled in Medicare, and, as

a lawful employee of those companies, Motley was

authorized to submit claims on their behalf, even if her name

was not on the enrollment forms. Thus, in vacuo, Motley’s

use of her relatives’ names was not fraudulent or deceptive.

The government also failed to show that the appearance

of Muntz’s and Brown’s names on the enrollment and

supplemental applications was “a key mover,” id. at 123, or

“critical to the success” of the fraud, Parviz, 131 F.4th at

972. The Supreme Court in Dubin wanted “[t]o be clear”

that “being at the crux of the criminality requires more than

a causal relationship, such as . . . being a but-for cause of its

‘success.’” 599 U.S. at 131 (emphasis added). Here, the

government has failed to demonstrate that Motley would

have been unable to successfully submit claims and

complete the fraud without using her relatives’ names.

Motley could have signed the paperwork herself; the

companies could have been incorporated in Motley’s name;

the applications could have listed Motley. Thus, the

government did not show that, absent the use of the relatives’

names on the Medicare enrollment and supplemental

applications, the scheme’s intended outcome would have

changed.

To further illustrate the lack of a viable claim linking

Motley’s use of her relatives’ names to the crux of what

made the underlying scheme criminal, consider Motley’s

underlying offense. The healthcare fraud for which Motley

was convicted criminalizes, in relevant part, “obtain[ing], by

USA V. MOTLEY 35

means of false or fraudulent pretenses, representations, or

promises, . . . money or property . . . of[] any health care

benefit program.” 18 U.S.C. § 1347(a)(2). As charged in

the indictment and as presented at trial, the healthcare fraud

involved obtaining payments from Medicare, a healthcare

benefit program, by falsely billing for DME and services that

were not medically necessary and for power wheelchair

repairs and supplies that were not provided. The deceit thus

lay in misrepresenting the medical necessity of, or the

performance of, services and supplies on Action’s and

Kaja’s claims. The use of her relatives’ names on the

Medicare enrollment applications may have facilitated the

fraud, but it was too attenuated from the falsification to be

“at the crux.” The crux of her crime was falsifying the

services and supplies. Put differently, the fraud was a lie

about what services were performed, not about who received

or provided them. See Dubin, 599 U.S. at 131–32 (endorsing

a Sixth Circuit heuristic that asks whether the fraud or deceit

about identity “go[es] to ‘who’ is involved” rather than

“misrepresenting how and when services were provided”

(first emphasis added)).

Thus, on this record, no rational juror could find that the

use of Muntz’s and Brown’s names on the Medicare

enrollment applications was at the crux of the fraudulent

claims’ objective of obtaining payments from Medicare for

services and DME that were either not provided or medically

unnecessary.

III. CONCLUSION

Although we do not lightly set aside a jury’s verdict, the

record here leaves us with no choice. No evidence showed

that Motley’s use of her relatives’ names was “critical to the

success” of the scheme and that the use itself was fraudulent

36 USA V. MOTLEY

or deceitful—only that the names were part of a broader

scheme to defraud, for which Motley will serve her time.

Because the government failed to show that Motley’s use

of her mother’s and nephew’s names was “specifically in a

fraudulent or deceitful manner” and “at the crux” of the

criminality of the underlying fraudulent billing, we vacate

her § 1028A(a)(1) sentence and remand to the district court

for further proceedings consistent with this opinion.

SENTENCE VACATED AND REMANDED.