Opposition Brief — David Fox Dubin, Petitioner v. United States

No. 22-10

In the Supreme Court of the United States

DAVID FOX DUBIN, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

ELIZABETH B. PRELOGAR

Solicitor General

Counsel of Record

KENNETH A. POLITE, JR.

Assistant Attorney General

DANIEL N. LERMAN

Attorney

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

QUESTION PRESENTED

Whether sufficient evidence supported the jury’s

finding that petitioner “use[d]” the means of identification of another person to commit fraud, in violation of 18

U.S.C. 1028A(a)(1), by submitting a Medicaid claim invoking a specific patient’s right to reimbursement for a

fictitious three-hour examination by a licensed psychologist on a date when that patient would have been

eligible for the reimbursement.

(I)

TABLE OF CONTENTS

Page

Opinions below .............................................................................. 1

Jurisdiction .................................................................................... 1

Statement ...................................................................................... 1

Argument....................................................................................... 6

Conclusion ................................................................................... 17

TABLE OF AUTHORITIES

Cases:

Bercovich v. United States, 577 U.S. 1062 (2016) ................ 7

City of Springfield v. Kibbe, 480 U.S. 257 (1987) ............... 17

Collett, Ex parte, 337 U.S. 55 (1949) .................................... 10

Gagarin v. United States, 141 S. Ct. 2729 (2021) ................. 7

Gatwas v. United States, 140 S. Ct. 149 (2019) .................... 7

Munksgard v. United States, 140 S. Ct. 939 (2020) ............. 7

Muscarello v. United States, 524 U.S. 125 (1998) .............. 11

Musacchio v. United States, 577 U.S. 237 (2016)............... 16

Osuna-Alvarez v. United States,

577 U.S. 913 (2015)................................................................ 7

Otuya v. United States, 571 U.S. 1205 (2014) ....................... 7

Pennsylvania Dep’t of Corr. v. Yeskey,

524 U.S. 206 (1998).............................................................. 11

Perry v. United States, 137 S. Ct. 2239 (2017) ..................... 7

Rodriguez-Ayala v. United States,

577 U.S. 843 (2015)................................................................ 7

Santana v. United States, 139 S. Ct. 1446 (2019) ................. 7

Smith v. United States, 508 U.S. 223 (1993) ......................... 8

United States v. Abdelshafi, 592 F.3d 602

(4th Cir.), cert. denied, 562 U.S. 874 (2010) ..................... 11

United States v. Berroa, 856 F.3d 141 (1st Cir.),

cert. denied, 138 S. Ct. 488 (2017) ..................................... 12

(III)

IV

Cases—Continued:

Page

United States v. Dixon, 347 U.S. 381 (1954) ....................... 10

United States v. Gatwas, 910 F.3d 362

(8th Cir. 2018), cert. denied,

140 S. Ct. 149 (2019) ..................................................... 13, 14

United States v. Harris, 983 F.3d 1125

(9th Cir. 2020)...................................................................... 13

United States v. Hong, 938 F.3d 1040

(9th Cir. 2019)...................................................................... 13

United States v. Johnston, 268 U.S. 220 (1925).................. 17

United States v. Kelly-Tuorila,

759 Fed. Appx. 236 (5th Cir. 2019) ...................................... 4

United States v. Lumbard, 706 F.3d 716

(6th Cir. 2013)...................................................................... 11

United States v. Mahmood, 820 F.3d 177

(5th Cir. 2016)........................................................................ 5

United States v. Medlock, 792 F.3d 700 (6th Cir.),

cert. denied, 577 U.S. 1037 (2015) ..................................... 12

United States v. Michael, 882 F.3d 624

(6th Cir. 2018)................................................................ 13, 14

United States v. Munksgard, 913 F.3d 1327

(11th Cir. 2019), cert. denied,

140 S. Ct. 939 (2020) ........................................................... 14

United States v. Olano, 507 U.S. 725 (1993) ....................... 15

United States v. Osuna-Alvarez, 788 F.3d 1183

(9th Cir.), cert. denied, 577 U.S. 913 (2015) ............... 11, 13

United States v. Ozuna-Cabrera, 663 F.3d 496

(1st Cir. 2011), cert. denied, 566 U.S. 950 (2012) ............. 11

United States v. Retana, 641 F.3d 272

(8th Cir. 2011)...................................................................... 11

United States v. Reynolds, 710 F.3d 434

(D.C. Cir. 2013) ............................................................... 9, 11

V

Cases—Continued:

Page

United States v. Spears, 729 F.3d 753

(7th Cir. 2013)...................................................................... 14

United States v. Tull-Abreu, 921 F.3d 294

(5th Cir.), cert. denied, 140 S. Ct. 424 (2019) ................... 13

United States v. Wedd, 993 F.3d 104 (2d Cir. 2021) ..... 13, 14

United States v. Wells, 519 U.S. 482 (1997) ........................ 16

United States v. Zheng, 762 F.3d 605

(7th Cir. 2014)...................................................................... 14

United States v. Zitron, 810 F.3d 1253

(11th Cir. 2016) .................................................................... 11

Wisniewski v. United States, 353 U.S. 901 (1957) ............. 13

Statutes and rules:

Act of June 25, 1948, ch. 645, § 19, 62 Stat. 862 .................. 10

18 U.S.C. 2 ............................................................................ 2, 3

18 U.S.C. 371 ............................................................................ 3

18 U.S.C. 1028A ............................................................ passim

18 U.S.C. 1028A(a)(1) ................................................... passim

18 U.S.C. 1347 ...................................................................... 2, 3

18 U.S.C. 1349 ...................................................................... 2, 3

42 U.S.C. 1320a-7b(b)(2) ......................................................... 3

Fed. R. Crim. P.:

Rule 29 .............................................................................. 15

Rule 29(c)(1) ..................................................................... 15

Sup. Ct. R. 10 ......................................................................... 17

Miscellaneous:

Black’s Law Dictionary (10th ed. 2014) ............................... 4

Antonin Scalia & Bryan A. Garner, Reading Law:

The Interpretation of Legal Texts (2012) ......................... 10

In the Supreme Court of the United States

No. 22-10

DAVID FOX DUBIN, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the en banc court of appeals (Pet. App.

1a-55a) is reported at 27 F.4th 1021. The opinion of the

court of appeals panel (Pet. App. 56a-81a) is reported at

982 F.3d 318.

JURISDICTION

The judgment of the court of appeals was entered on

March 3, 2022. On May 11, 2022, Justice Alito extended

the time within which to file a petition for a writ of certiorari to and including July 1, 2022. The petition was

filed on June 30, 2022. The jurisdiction of this Court is

invoked under 28 U.S.C. 1254(1).

STATEMENT

Following a jury trial in the United States District

Court for the Western District of Texas, petitioner was

convicted of conspiring to commit healthcare fraud, in

(1)

2

violation of 18 U.S.C. 1349; healthcare fraud, in violation

of 18 U.S.C. 1347 and 2; and using a means of identification of another during and in relation to a listed felony,

in violation of 18 U.S.C. 1028A. Judgment 1. He was

sentenced to 36 months and one day of imprisonment,

to be followed by three years of supervised release.

Judgment 2-3. The court of appeals affirmed. Pet. App.

56a-81a. The court granted rehearing en banc and

again affirmed. Id. at 1a-55a.

1. Petitioner was the managing partner of PARTS,

a psychology practice in Texas. Pet. App. 57a; Gov’t

C.A. En Banc Br. 1. PARTS is an enrolled Medicaid

provider, and petitioner’s role in the company included

managing its Medicaid billing. Ibid.

In April 2013, a treatment facility in San Antonio

asked PARTS to evaluate a child known as Patient L.

Gov’t C.A. En Banc Br. 4. PARTS sent one of its associates to the facility, and the associate spent about two

and a half hours evaluating Patient L. Ibid. In the middle of the evaluation, petitioner’s father (the founder of

PARTS) directed the associate to stop the evaluation

because Patient L had already exhausted Medicaid benefits for the applicable benefits period, meaning that

Medicaid would not pay for more testing. Ibid.

Petitioner later directed an employee to submit a

fraudulent reimbursement claim to Medicaid that invoked Patient L’s name and Medicaid identification

number. See Gov’t C.A. En Banc Br. 5; Pet. App. 70a.

The actual two-and-a-half-hour associate evaluation in

April 2013, however, would not have been reimbursable

at all. See Gov’t C.A. En Banc Br. 4-5. The claim instead asserted Patient L’s right to reimbursement for

an evaluation in May 2013, by which time Patient L’s

benefits had been renewed, that lasted three hours, and

3

that was conducted by a licensed psychologist (who

would be reimbursed at a higher rate than an associate

would have been. Id. at 5.

2. A grand jury in the Western District of Texas indicted petitioner on one count of conspiring to receive

healthcare kickbacks, in violation of 18 U.S.C. 371; five

counts of offering to pay and paying illegal kickbacks,

in violation of 42 U.S.C. 1320a-7b(b)(2); one count of

conspiring to commit healthcare fraud, in violation of 18

U.S.C. 1349; seven counts of healthcare fraud, in violation of 18 U.S.C. 1347 and 2; and six counts of using a

means of identification of another during and in relation

to a listed felony, in violation of 18 U.S.C. 1028A and 2.

Superseding Indictment 1-24. One of the Section 1347

counts and one of the Section 1028A counts concerned

the false claim about Patient L. Id. at 22-23.

Section 1028A provides:

Whoever, during and in relation to [certain felonies,

including healthcare fraud], 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). The district court instructed the

jury that “the statute criminalizes a situation in which a

defendant gains access to a person’s identifying information lawfully but then, proceeds to use that information unlawfully and in excess of that person’s permission.” 10/25/2018 Tr. 173. Petitioner did not object to

that instruction.

The jury found petitioner guilty of one count of conspiring to commit healthcare fraud, as well as the one

count of healthcare fraud and the one count of using a

means of identification of another during and in relation

4

to a felony that related to Patient L. Judgment 1. It

found petitioner not guilty on the remaining counts,

which concerned other conduct. Ibid.

3. Petitioner moved for a judgment of acquittal,

making arguments that the evidence supporting the

jury’s verdict was insufficient in multiple ways. See D.

Ct. Doc. 208 (Nov. 9, 2018). The district court denied

the motion. See D. Ct. Doc. 221 (Feb. 19, 2019).

Petitioner subsequently moved for reconsideration

of that denial, arguing for the first time that Patient L’s

name and Medicaid identification number “were not

‘used’ within the scope required by Section 1028A, nor

submitted ‘during and in relation to’ the healthcare

fraud alleged as to this billing.” D. Ct. Doc. 239, at 43

(Aug. 26, 2019). The court denied the motion for reconsideration, observing that petitioner’s argument was

contrary to a circuit decision applying Section 1028A in

another case of health care fraud. 9/16/2019 Tr. 3-4 (citing United States v. Kelly-Tuorila, 759 Fed. Appx. 236

(5th Cir. 2019) (per curiam)).

The court later sentenced petitioner to 36 months

and one day of imprisonment, to be followed by three

years of supervised release. Judgment 2-3.

4. The court of appeals affirmed. Pet. App. 56a-78a.

The court of appeals rejected petitioner’s contention

that he did not “use” Patient L’s identifying information. See Pet. App. 66a-71a. The court observed that

the “plain meaning” of the word “ ‘use,’ ” id. at 67a (citation omitted), is “to employ for the accomplishment of

some purpose” or “ ‘to avail oneself of,” id. at 68a (quoting Black’s Law Dictionary 1776 (10th ed. 2014)). And

the court determined that, in this case, petitioner had

“used” Patient L’s means of identification “when he

took the affirmative acts in the health-care fraud, such

5

as his submission for reimbursement of Patient L’s incomplete testing.” Id. at 71a.

Judge Elrod concurred. Pet. App. 79a-81a. She

stated that, if she “were writing on a blank slate,” she

would conclude that petitioner had not used Patient L’s

means of identification, id. at 81a, but read the Fifth

Circuit’s earlier decision in United States v. Mahmood,

820 F.3d 177 (2016), to foreclose petitioner’s argument,

see Pet. App. 79a.

4. The court of appeals granted rehearing en banc.

Pet. App. 1a-55a. In a per curiam order, the court

stated that it “affirm[ed] the district court’s judgment

for the reasons set forth in the panel’s majority opinion.” Id. at 2a. The court added that it “need not resolve

whether [its] review of the § 1028A issue is de novo or

for plain error because the conviction stands regardless

of which standard of review applies.” Ibid.

Chief Judge Richman (Chief Judge Owen at the time

of the opinion below) filed a concurrence, which was

joined by four other judges. Pet. App. 3a-28a. She considered it “beyond debate that [petitioner] ‘used’ Patient L’s identifying information ‘during and in relation

to’ the offenses for which he was convicted.” Id. at 10a

(footnote omitted). She reasoned that the focus should

thus be on whether, as Section 1028A requires, that

“use[]” occurred “without lawful authority.” Id. at 11a.

And she explained that petitioner “had no ‘lawful’ authority to use the information in the manner he did

when he committed the felonies for which he was convicted.” Id. at 12a. She also observed that, although the

dissents focused on whether petitioner had engaged in

“identity theft,” the statutory text “does not contain the

words ‘identity theft’ or even ‘theft.’ ” Id. at 3a.

6

Judge Oldham also filed a concurring opinion, which

was joined by the same four judges. Pet. App. 29a-37a.

He reasoned that the question whether petitioner had

“use[d]” Patient L’s identifying information was “not

properly before” the court of appeals, because petitioner had forfeited that issue in two different ways. Id.

at 29a. First, petitioner had failed to raise his “use” argument in his initial motion for a judgment of acquittal,

instead raising it for the first time only in a later motion

for reconsideration. Id. at 29a-33a. Second, petitioner

had failed to object to the district court’s jury instructions. Id. at 33a-37a. Judge Oldham accordingly explained that petitioner’s claim was reviewable only for

plain error, a standard that petitioner could not satisfy.

Id. at 36a.

Judge Elrod issued a dissent, joined by six other

judges, in which she concluded that petitioner did not

violate Section 1028A because he did not “lie about Patient L’s identity” or “pretend to be Patient L.” Pet.

App. 41a; see id. at 38a-46a. Judge Haynes issued a

brief solo dissent stating that she agreed with Judge Elrod’s dissent in part. Id. at 47a. And Judge Costa issued a dissent, joined by Judge Elrod and the other

judges who had joined her concurrence, in which he concluded that Section is limited “to what ordinary people

understand identity theft to be,” even if a “textual case

can be made” that the statutory text differs from that

understanding. Id. at 49a-50a; see id. at 48a-55a.

ARGUMENT

Petitioner contends (Pet. 25-32) that insufficient evidence supported the finding that he had “use[d]” a

means of identification of another person within the

meaning of 18 U.S.C. 1028A(a)(1). The court of appeals

correctly affirmed his Section 1028A(a)(1) conviction,

7

and its decision does not implicate any split of authority

among the courts of appeals. This case also would be a

poor vehicle for reviewing the question presented. This

Court has recently and repeatedly denied many petitions for writs of certiorari presenting similar contentions about the meaning of Section 1028A(a)(1). See Gagarin v. United States, 141 S. Ct. 2729 (2021) (No. 207359); Munksgard v. United States, 140 S. Ct. 939

(2020) (No. 19-5457); Gatwas v. United States, 140 S. Ct.

149 (2019) (No. 18-9019); Santana v. United States, 139

S. Ct. 1446 (2019) (No. 18-682); Perry v. United States,

137 S. Ct. 2239 (2017) (No. 16-7763); Bercovich v.

United States, 577 U.S. 1062 (2016) (No. 15-370);

Osuna-Alvarez v. United States, 577 U.S. 913 (2015)

(No. 15-5812); Rodriguez-Ayala v. United States, 577

U.S. 843 (2015) (No. 14-10013); Otuya v. United States,

571 U.S. 1205 (2014) (No. 13-6874). It should follow the

same course here.

1. Section 1028A prescribes a sentence enhancement for any person who, “during and in relation to

[certain felonies], knowingly transfers, possesses, or

uses, without lawful authority, a means of identification

of another person.” 18 U.S.C. 1028A(a)(1). Petitioner’s

conduct here—submitting a Medicaid claim seeking reimbursement owed to a specific patient, identified by

name and number, for a service that patient never

received—qualified for that enhancement.

Petitioner submitted a Medicaid claim asserting Patient L’s right to reimbursement for an evaluation in

May 2013, lasting three hours, by a licensed psychologist. See Gov’t C.A. En Banc Br. 5. No such examination occurred. Patient L had received an examination

in April 2013, of a shorter duration, by an associate. See

id. at 4. But that examination was not reimbursable,

8

and petitioner’s Medicaid claim here did not seek reimbursement for it. Petitioner instead sought reimbursement for a different service that Patient L never

received—a three-hour exam by a licensed psychologist

in May 2013.

In doing so, petitioner “use[d]” Patient L’s “means

of identification,” 18 U.S.C. 1028A(a)(1), by including

Patient L's name and identification number in the claim.

See Pet. App. 70a. He did so “during and in relation to”

healthcare fraud, 18 U.S.C. 1028A(a)(1), by invoking Patient L’s individual right to reimbursement. And he did

so “without lawful authority,” ibid., by disregarding the

actual relationship with Patient L, inventing a fictitious

service, and invoking Patient L without Patient L’s consent for personal profit. Accordingly, the plain text of

Section 1028A(a)(1) specifies that his conduct was subject to a sentence enhancement.

2. Petitioner criticizes (Pet. 31) the decision below

for not “adopt[ing] a narrower construction” that petitioner does not precisely describe. But whatever the

limits of Section 1028A’s scope, petitioner’s conduct fits

squarely within its compass.

In ordinary English, the verb “use” means “employ,”

“derive service from,” “avail oneself of,” “utilize,” or

“carry out a purpose or action by means of.” Smith v.

United States, 508 U.S. 223, 229 (1993) (citations omitted); see, e.g., id. at 228 (holding that a person can “use”

a firearm without firing it, such as by trading it for

drugs). Petitioner’s conduct here—in which he invoked

Patient L’s name and identification number in a Medicaid bill to claim Patient L’s right to reimbursement for

services that Patient L did not in fact received—satisfied

any and all of those definitions. It should therefore “be

beyond debate that [petitioner] ‘used’ Patient L’s

9

identifying information” in the course of committing

healthcare fraud. Pet. App. 10a (Richman, C.J., concurring). And petitioner appears now to acknowledge

(Pet. 24 n.6) that he indeed “may have used Patient L’s

means of identification as part of a fraud.”

Petitioner errs in suggesting (Pet. 28-29) that his use

of Patient L’s identifying information was not “without

lawful authority,” 18 U.S.C. 1028A(a)(1), because he had

“permission to use Patient L’s means of identification

on this Medicaid bill,” Pet. 24 n.6 (citation omitted). But

in the court of appeals, petitioner “d[id] not claim he had

lawful authority to use” Patient L’s identifying information. Pet. App. 67a (emphasis altered). In any event,

the term “without lawful authority,” 18 U.S.C.

1028A(a)(1), “easily encompasses situations in which a

defendant gains access to identity information legitimately but then uses it illegitimately—in excess of the

authority granted.” United States v. Reynolds, 710

F.3d 434, 436 (D.C. Cir. 2013). Here, although petitioner had authority to use Patient L’s identifying information to present Patient L as the recipient of the services that PARTS in fact provided, he did not have authority (let alone “lawful” authority) to use Patient L’s

information to represent Patient L as the recipient of

services that PARTS did not provide.

Petitioner also errs in contending that his use of Patient L’s means of identification did not occur “during

and in relation to” the predicate healthcare fraud. Pet.

28 (citations omitted). Petitioner’s presentation of Patient L, in particular, as the recipient of nonexistent services was not “merely incidental” (Pet. 27) to the fraud.

A random identity, or a wholly fictional one, would have

been unsuitable. The fraud depended on casting a real

Medicaid-eligible child—Patient L—as the recipient of

10

services that, if actually provided to the patient, would

warrant reimbursement. See, e.g., Pet. App. 11a (Richman, C.J., concurring) (observing that petitioner “could

not have effectuated the health care fraud * * * without

using Patient L’s identifying information”); see also,

e.g., Gov’t C.A. En Banc Br. 37; C.A. ROA 2600, 35003501, 3652. Patient L’s own specific medical history in

fact informed petitioner’s fictitious claim, which falsely

represented that Patient L had received an examination

at a time when Patient L would be eligible for reimbursement. See Gov’t C.A. En Banc. Br. 4-5. The use

of the means of identification was therefore “during and

in relation to” petitioner’s predicate offense. 18 U.S.C.

1028A(a)(1).

Petitioner further errs in contending that, because

Section 1028A bears the heading “Aggravated identity

theft,” 18 U.S.C. 1028A (emphasis omitted), the statute

applies only “to what ordinary people understand identity theft to be,” Pet. 31 (citation omitted). Congress

has provided that “[n]o inference of a legislative construction is to be drawn * * * by reason of the catchlines used in” Title 18 of the U.S. Code. Act of June 25,

1948, ch. 645, § 19, 62 Stat. 862. That provision makes

Title 18’s section headings (its “catchlines”) irrelevant

to the interpretation of Title 18’s text. See United

States v. Dixon, 347 U.S. 381, 385-386 (1954) (applying

a similar disclaimer in Title 26); Ex parte Collett, 337

U.S. 55, 59 (1949) (applying a similar disclaimer in Title

28); Antonin Scalia & Bryan A. Garner, Reading Law:

The Interpretation of Legal Texts § 35 (2012) (“Be sure

to check your text or code or compilation for such a disclaimer.”).

Even putting aside that disclaimer, “the title of a

statute . . . cannot limit the plain meaning of the text.”

11

Pennsylvania Dep’t of Corr. v. Yeskey, 524 U.S. 206, 212

(1998) (brackets and citation omitted). And “the text of

18 U.S.C. § 1028A(a)(1) does not contain the words

‘identity theft’ or even ‘theft.’ ” Pet. App. 3a (Richman,

C.J., concurring). Courts of appeals have thus “universally rejected” the argument that Section 1028A “require[s] actual theft or misappropriation of the means

of identification.” United States v. Osuna-Alvarez, 788

F.3d 1183, 1185 (9th Cir.) (per curiam), cert. denied, 577

U.S. 913 (2015); see United States v. Ozuna-Cabrera,

663 F.3d 496, 498-501 (1st Cir. 2011), cert. denied, 566

U.S. 950 (2012); United States v. Abdelshafi, 592 F.3d

602, 606-610 (4th Cir. 2010), cert. denied, 562 U.S. 874

(2010); United States v. Lumbard, 706 F.3d 716, 721-725

(6th Cir. 2013); United States v. Retana, 641 F.3d 272,

274-275 (8th Cir. 2011); United States v. Zitron, 810

F.3d 1253, 1260 (11th Cir. 2016) (per curiam); Reynolds,

710 F.3d at 436 (D.C. Cir.).

Finally, petitioner errs in contending (Pet. 31) that

the application of Section 1028A(a)(1) in this case would

violate the rule of lenity. The rule of lenity comes into

play only if, even after the application of the ordinary

tools of statutory interpretation, there remains a

“grievous ambiguity” in the statute. Muscarello v.

United States, 524 U.S. 125, 139 (1998). Application of

the plain meaning of the statutory terms here produces

no such grievous ambiguity. And contrary to petitioner’s contention (Pet. 2), the court of appeals’ decision does not mean that “a defendant violates the statute any time he mentions or otherwise recites someone

else’s name while committing a predicate offense.” The

court did not hold that, and if any future case were in

fact to arise involving one of petitioner’s hypothesized

scenarios, one or more of the elements of Section 1028A

12

might not be satisfied. Indeed, in a case unobscured by

the preservation issues here, the court of appeals might

well review such an issue en banc. See Pet. App. 29a37a (Oldham, J., concurring) (explaining vote to deny

rehearing on plain-error grounds).

3. Contrary to petitioner’s contention (Pet. 14-20),

this case does not implicate any circuit conflict. The

cases that petitioner cites do not demonstrate that another circuit would have granted him appellate relief.

To begin, the decision below does not conflict with

United States v. Medlock, 792 F.3d 700 (6th Cir.), cert.

denied, 577 U.S. 1037 (2015). There, the Sixth Circuit

concluded that the defendants had not violated Section

1028A(a)(1) by lying “about their own eligibility” to receive reimbursement for transporting Medicare beneficiaries. Id. at 706. The court emphasized that “[t]here

was nothing about those particular beneficiaries, rather

than some other lawful beneficiaries of Medicare, that

entitled them to reimbursed rides.” Ibid. As the court

of appeals observed here, however, the “facts of this

case do not fit squarely into the holding or facts of Medlock.” Pet. App. 68a. In this case, unlike in Medlock,

petitioner’s fraud was predicated on his false claim that

Patient L in particular had received the specified services, and had a right to reimbursement for them. See

pp. 9-10, supra.

The decision below also does not conflict with United

States v. Berroa, 856 F.3d 141 (1st Cir.), cert. denied,

138 S. Ct. 488 (2017). In that case, the First Circuit

“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 action on another person’s

behalf.” Id. at 156-157. The First Circuit later clarified,

however, that a person can use the means of

13

identification of another by submitting a fraudulent

form containing the person’s identifying information.

See United States v. Tull-Abreu, 921 F.3d 294, 300, cert.

denied, 140 S. Ct. 424 (2019); see ibid. (explaining that

a person who submits such a form satisfies Berroa’s requirement of taking action on another person’s behalf);

id. at 300 n.3 (explaining that decisions upholding Section 1028A convictions “ ‘where the defendant neither

stole nor assumed the identity of the other person’ ” are

“[i]n accord with Berroa”) (citation omitted).

Petitioner’s reliance (Pet. 18) on Ninth Circuit decisions is likewise misplaced. Petitioner emphasizes

United States v. Hong, 938 F.3d 1040 (2019), where the

Ninth Circuit concluded that the defendant “did not

‘use’ the patients’ identities within the meaning of ” Section 1028A(a)(1) where neither he nor others had “ ‘attempted to pass themselves off as the patients.’ ” Id. at

1050-1051 (brackets and citation omitted). But the

Ninth Circuit has recognized both before and after

Hong that “the statutory text does not suggest that

‘use’ ‘refers only to assuming an identity or passing oneself off as a particular person.’ ” United States v. Harris, 983 F.3d 1125, 1128 (9th Cir. 2020) (citation omitted); see, e.g., Osuna-Alvarez, 788 F.3d at 1185. To the

extent that Hong conflicts with those other Ninth Circuit decisions, such an intra-circuit conflict would not

warrant this Court’s review. See Wisniewski v. United

States, 353 U.S. 901, 902 (1957) (per curiam) (“It is primarily the task of a Court of Appeals to reconcile its internal difficulties.”).

Petitioner also errs in arguing (Pet. 17, 19-20) that

the decision below conflicts with United States v. Wedd,

993 F.3d 104 (2d Cir. 2021), United States v. Michael,

882 F.3d 624 (6th Cir. 2018); United States v. Gatwas,

14

910 F.3d 362 (8th Cir. 2018), cert. denied, 140 S. Ct. 149

(2019), and United States v. Munksgard, 913 F.3d 1327

(11th Cir. 2019), cert. denied, 140 S. Ct. 939 (2020). As

a threshold matter, Wedd, Gatwas, and Munksgard all

affirmed the defendants’ Section 1028A(a)(1) convictions. See Wedd, 993 F.3d at 125; Gatwas, 910 F.3d at

368; Munksgard, 913 F.3d at 1336. The results of those

cases accordingly do not conflict with the corresponding

affirmance of petitioner’s Section 1028A(a)(1) conviction here. In any event, those decisions simply emphasize that Section 1028A requires the use of another person’s means of identification to occur “during and in relation to” the predicate offense. 18 U.S.C. 1028A(a)(1);

see Wedd, 993 F.3d at 123; Michael, 882 F.3d at 628;

Gatwas, 910 F.3d at 368; Munksgard, 913 F.3d at 13341335. As discussed above, petitioner’s conduct—which

relied on Patient L’s individual and circumstancespecific right to a Medicaid reimbursement—satisfied

that requirement. See pp. 9-10, supra.

Finally, the decision below does not conflict with

United States v. Spears, 729 F.3d 753 (7th Cir. 2013) (en

banc). Spears involved an unusual fact pattern, in which

the defendant had transferred the means of identification (a counterfeit handgun permit) to the very person

being identified. See id. at 756-758. As the Seventh Circuit has since explained, Spears held only that “manufacturing a false means of identification for a customer

using the customer’s own identifying information does

not violate [Section] 1028A.” United States v. Zheng,

762 F.3d 605, 609 (2014); see ibid. (describing the question presented in Spears as “whether a defendant who

makes a fake document containing a person’s identifying information and transfers the counterfeit document

to that person commits aggravated identity theft”).

15

This case does not involve any such fact pattern; petitioner used Patient L’s means of identification in a claim

submitted to Medicaid, not in a claim submitted to Patient L. In addition, petitioner acknowledges that

Spears did not rely “on ‘use’ or the statute’s causation

requirement,” but instead construed the term “another

person.” Pet. 20 (citation omitted). Petitioner did not

dispute below, and he does not dispute here, that Patient L is “another person” within the meaning of Section 1028A(a)(1).

4. This case would in all events be a poor vehicle for

reviewing the question presented.

First, petitioner has forfeited his current contentions. Under Federal Rule of Criminal Procedure 29, a

motion for a judgment of acquittal must be made

“within 14 days after a guilty verdict or after the court

discharges the jury, whichever is later.” Fed. R. Crim.

P. 29(c)(1). In this case, petitioner filed a motion for

judgment of acquittal within that 14-day deadline, but

he did not raise his current arguments in that motion.

See Pet. App. 30a (Oldham, J., concurring). Petitioner

instead raised his argument—which at that time was

limited to the “use” element of the statute—for the first

time in another motion filed “[m]ore than six months after the verdict,” long after Rule 29’s deadline had expired. Ibid. (emphasis omitted). Because petitioner did

not timely raise that contention in the district court, it

is subject to review only for plain error—a standard

that petitioner cannot satisfy. Id. at 33a, 36a.

Petitioner notes (Pet. 24) that the government did

not raise that objection in the district court. But the

plain-error rule governs appellate review, see United

States v. Olano, 507 U.S. 725, 732-737 (1993), and the

government invoked that rule in its en banc brief, see

16

Gov’t C.A. En Banc Br. 11 n.3. Further, Judge Oldham

stated that, because “[a] party cannot waive, concede,

or abandon the applicable standard of review,” the government’s position on the applicability of plain-error review “is irrelevant.” Pet. App. 32a (citation omitted).

Whether or not Judge Oldham was correct, threshold

questions about the applicable standard of review would

make this case a poor vehicle for considering the question presented.

Second, petitioner’s current position is “directly adverse to” the jury instructions in which he acquiesced in

district court. Pet. App. 34a (Oldham, J., concurring)

(citation omitted). Petitioner argues that Section

1028A(a)(1) applies only “to what ordinary people understand identity theft to be.” Pet. 26 (citation omitted). But petitioner acquiesced in the district court’s

instruction that, “[t]o be found guilty of this crime, the

defendant does not have to actually steal a means of

identification. Rather, the statute criminalizes a situation in which a defendant gains access to a person’s

identifying information lawfully but then, proceeds to

use that information unlawfully and in excess of that

person’s permission.” Pet. App. 34a (Oldham, J., concurring).

Although petitioner’s position on the jury instructions does not itself foreclose his challenges to the sufficiency of the indictment and the evidence, see Musacchio v. United States, 577 U.S. 237, 243-244 (2016), it

does make this case an inappropriate vehicle for reviewing the question presented. This Court has “treated an

inconsistency between a party’s request for a jury instruction and its position before this Court” as a relevant “consideration[] bearing on” whether to grant a

writ of certiorari. United States v. Wells, 519 U.S. 482,

17

488 (1997). “[T]here would be considerable prudential

objection to reversing a judgment because of instructions that petitioner accepted, and indeed itself requested.” City of Springfield v. Kibbe, 480 U.S. 257, 259

(1987) (per curiam).

Petitioner’s suggestion (Pet. 25 n.6) that the instructions were, in fact, proper even under the reading of the

statute that he would favor reinforces that review of the

question presented in the petition presents highly factbound questions regarding the inferences that could

properly be drawn from the allegations and evidence, as

opposed to purely legal questions. This Court “do[es]

not grant a certiorari to review evidence and discuss

specific facts.” United States v. Johnston, 268 U.S. 220,

227 (1925); see Sup. Ct. R. 10. A writ of certiorari

should accordingly be denied here. And the need to review this case through the lens of a challenge to the sufficiency of the evidence, rather than a challenge to an

instruction, would make this case a poor vehicle for considering the question presented.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

ELIZABETH B. PRELOGAR

Solicitor General

KENNETH A. POLITE, JR.

Assistant Attorney General

DANIEL N. LERMAN

Attorney

SEPTEMBER 2022