Tamara Motley Medicare Fraud Conviction Vacated on Identity Theft

FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NIN TH CIRCUIT UNITED STATES OF AMERICA, Plaintiff - Appellee, v. TAMARA YVONNE MOTLEY, AKA Tamara Ogembe, AKA Tamara Motley-Ogembe, Defendant - Appellant. No. 23-3971 D. C. No. 2:17- cr -00774- FMO-1 OPINION 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. M OTLEY SUMMARY * Criminal Law The panel vacated a portion of Tamara Motley’s sentence and re manded for resentencing in a case in which a jury convicted Motley of defrauding Medicare by submitting millions of dollars in false and fra udulent claims for dura ble medical equipment and related services. Motley’s underlying healthcare fraud was not in dispute. The sole qu estion was whether Motley also committed aggravated identity theft under 18 U.S.C. § 1028A(a)(1) because the companie s Motley used to submit the false claims were enrolled in Medicare und er 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 la wful authority, a means of identification of another per son.” On the eve of trial, th e Supreme Court decided D ubin v. United Stat es, 599 U.S. 110 (2023). Dubin significantly narrowed § 1028A(a)(1) by holding that a “de fendant’s misuse of another person’s means of identification” must be “at the crux o f what makes the underlying offense criminal, rather than merely an ancillary feature of a billing method.” The p anel he ld 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 * Th is summar y co nstitutes n o p art of the opinion of the court. It has been prepared b y court staff for the convenience o f the reader.

USA V. M OTLEY 3 was “critical to the success” of the sch eme and th at the use itself was fraudulent or deceitful. COUNSEL Kristen A. Williams (argued), Assistant United States Attorney, Chief, Major Frauds Section; Julian L. Andr e, David H. C hao, Assistant United S tates Attorneys; Lindsey G. Dotson, Assistant United States Attorney, Chief, Criminal Division; Joseph T. Mc Nally, A cting United States Attorney; Office of th e Unit ed States Attorney, Unit ed States Department of Justice, Lo s Angeles, California; for Plainti ff- Appellee. Ellis M. Johnston III (argued), Clarke Johnston Thorp & Rice PC, San Diego, California, for Defendant-Appellant.

4 USA V. M OTLEY OPINION BYBEE, Circuit Judge: Appellant Tamara Motley was convicted after a jury trial for defrauding Medicare by submitting millions of doll ars in false and fraudulent claims for durable medical equipment and related services. Motley ’ s underlying h ealthcare 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 ide ntity theft carries a mandatory, consecutive two-year prison term if “during and in relation to” a predicate offense, a defendant “use s, without la wful authority, a means of identification of another person. ” 18 U.S.C. § 1028A(a)(1). On the eve of trial, the S upreme Court decided Dubin v. United States, 599 U.S. 110 (2023). Dubin significantly narrowe d § 1028A(a)(1) by holding that a “defendant’ s misuse of another person ’s means of identification” must be “a t the crux of what makes the underlying offense crimi nal, rather than merely an ancillary feature of a billing method.” Id. at 114. We hold th at M otley’s § 1028A(a)(1) c onviction cannot stand be cause the government failed to advance a theory at trial that the use of he r relatives’ n ames was “critical to the success” of the scheme and that the use it self 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. M OTLEY 5 I. BACKGROUND A. Factual Background Tamara Motley ope rated Action Medical Equipme nt and Supply, I nc. (Action) and Kaja Medical Equipm ent & Supply, Inc. (Kaja), two durable medical equipment (DME) companies enrolled as Medicare providers. Action was incorporated in the name of her mother, Beverly Munt z, while Kaja was incor porated in the name of her nephew, Bryant B rown. Neither played an active role in the management of the comp anies, nor was either implicated in the fraudulent scheme we describe below. Medicare permits DME supply companies, physicians, and other he althcare pro viders to se ek 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 n ot subm itting false or fraudulent claims. Once enrolled, Electronic D ata Interchange (EDI) and Electronic Funds Transfer (EFT) agreement s allow suppliers to submit claims electronically and to receive payment directly to their business bank account. Electronic claims include, among ot her things, the beneficiar y’s name and identifier, the billed i tem or s ervice, the date of service, and the supplier’s identifying numbers. With the help of co -defendants Cynthia Marquez, the office man ager, and Juan Murillo, a repair technician, Motley orchestrated a sc heme to exploit the reimbursement system. The gist of the scheme was simple: U se patient information to submit claims for DME and related services for patients who did not nee d those items and servic es and often did not even receive them.

6 USA V. M OTLEY The scheme worked as follows. Motley recruite d and paid illegal kickbacks to marketers who brought in patients. Using li sts 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 thei r regular physicians, but to complicit physicians who, after cursory examinations, would wr ite prescriptions for medically unnecessary DME, including power wheelchairs and orthotics. At ti mes, 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 schemer s would then deliver the medically unnecessar y 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 wh ole cloth. Motley and others, acting at her direction, would pick up these prescriptions from the physicians or marketers and, along with fa ke delive ry 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 unpro vided DME, and to “max out” the a mount Medicare would cover. When Medicare switched from lump-sum reimbursements fo r pow er wheelchairs to a less lucr ative monthly rental model in 2011, Motl ey 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, offer ed fr ee maintenance or equipment, and

USA V. M OTLEY 7 persuaded bene ficiaries to undergo unnecessary repairs or replacements for their power wheelchairs. To the extent that any services w ere provided, Ac tion and Kaja technicians made only brie f house calls, typically doing little or no work beyond re placing a battery. During the house calls, it was evident that many beneficiaries did not us e the wheelchairs or kept th em outside thei r 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 re placement services ha d been performed. Using this documentation and beneficiary information, the schemers fabricated documentation to make it appear as if the services ha d 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 K aja bank accounts, payable to Marquez, Murillo, and others, with false memo lines purporting to cover legitimate business expenses. B. Indictment For thi s scheme, the government charged Motley, Marquez, and Murill o 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 an d May 2016. Motley and Marquez were also charged with two counts of aggravate d identit y 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. M OTLEY respectively —“during a nd in relation to” the healthcare fraud. Both co-defendants pled guilty before Motley ’ s trial; Marquez’s plea deal excluded the aggravated ide ntity 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, t he government called twenty - eight witnesses, including investigators, former Action and Kaja employees, Medicare patients and their physicians, and members of the Me dicare Compliance Te am. The government a lso 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 e mployee testim ony established that Motley was the effective manager and CEO at Action and Kaja, responsible for spearheading the fra ud scheme. Four Medicare patients, one patient’s relative, a nd five physicians testified that the DME provided was not medically necessary, and that any re pairs or replacement parts provided years later were likewise unnec es sary. For exampl e, one beneficiary testified that after receiving a power wheelchair he never used and did not nee d, two repairmen arrived 1 Marquez pleaded guilty to a two -count superseding indictment, which charged h er with two co unts of false statem ents affecting health care programs in violation of 18 U.S.C. § 1035(a)(2). Murillo pleaded guilty to co nspiracy to launder monetary instruments in violation of 18 U. S.C. § 1956(h). 2 A ju ry trial was held f rom February 7 to Feb ruary 16, 2 023. Due to a dangerous and unco operative juror, a hung jury resulted, and the district court declar ed a mistrial.

USA V. M OTLEY 9 unannounced, and he signed severa l 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 governm ent sought to support the § 1028A(a) (1) charge through Motl ey’s use of the n ames of Muntz, h er mother, and Brown, her nephew. A Medicare expert testified that to obtain a Medicare provider number and sub mit claims, the named owners must agree to comply with Medicare rules and regulat ions. The named owners — here, M untz 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 ignor ance o r reckless disregard of t heir truth or falsity.” The expert further explained that Medi care operates largely on an “ honor system ” and relies on provider numbers to match claims with registered providers. Although Motley ef fectively manag ed Action and Kaja, and Muntz and Brown had minimal involvement, the Medicare enrollm ent 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 a ppear in any supplemental a pplications updating ownership and managerial information. Documentary evidence established that Muntz incorporated Action in April 2006, and Brown incorpora ted Kaja in March 2011. Both Muntz and Brown had signed EFT authorization agreements, directing Me dicare’s reimbursements to busine ss bank accounts, both of which listed Motley as an authorized signatory. Finally, powers of attorney showed that Munt z and Brown had granted Motley full authority to run the companies.

10 USA V. M OTLEY In short, the government’s trial evidence supporting the aggravated identity thef t count rested on the fact that although Action and Kaja were legally owned, incorporated by, a nd e nrolled in Medicare through Muntz and Brown, Motley e ffectively ran th e companies. Th e government also emphasized that both powers of attorney and Medicare enrollment agreements re quire lawful use. There was no evidence before the jury, however, that Motley lacked permission or authorization fr om Muntz or Brown to submit claims or operate the companies; no evidence that Motl ey, rather than Muntz or Brown, was responsible for enrollment; no evidence as to why the companies were enro lled under her relatives’ names; and no evidence that Motley could not have enrolled in he r own name or needed their na mes to submit claims. D. Jury Verdict and Sentence The jury convicted Motley on all counts. Th e dist rict court sentenced Motley to 180 months in custody, including 24 consecutive months, the statutory minim um, on the aggravated identity theft counts. The court als o ordered Motley to pay re stitution of $13,097,237.10 to Medica re and $10,185.70 to Medi-Cal. Motley timely appealed h er convictions on the aggravated identity theft counts only. II. DISCUSSION Motley submit s that the government presented insufficient evidence to show that the use of her relatives ’ names was at the “crux” of the underlying healthcare f raud. 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. M OTLEY 11 reviewed de novo. United States v. Grovo, 826 F.3d 1207, 1213 (9th Cir. 2016); U nited 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 pr eserved is reviewed for plain error. United State s 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 eviden ce must be renewed if the defense presents additional evidence, or else p lain-error review applies. Id. at 409 n.6. But we hav e also applied de novo review whe re the d efendant moves fo r acquittal at the close of the government’s evidence and does not renew t he 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 excepti on to the renewal requirement. T here, after moving for ju dgment of acquittal at the close of the government’s case, the defendant introduced minimal additional evidence, including a voice exemplar and an a udio 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 ‘ a n e mpty ritual. ’” Id. at 1225 (citation omitted). Here, after the gov ernment 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 ana lysis. Defense c ounsel did not renew its motion for judgment of acquittal after its last witness. A

12 USA V. M OTLEY renewed motion would have been the better practice, eliminating any question whether the motion wa s preserved. Nonetheless, a s in Esquivel-Ortega, we thi nk Motley did enough to preserve her objection. Af ter making the Rule 29 motion, the defe nse’s additional evidence was minor and almost certa inly would not have altered the district court’s assessment of the sufficiency of the evidence. Because “it would have been futile f or” Motley “to renew h[er] motion following” the final testimony, we review de novo. Id. “ In any event, the distinction is largely a cademic, given that, whether review is de no vo 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 vie wing the evidence in the light most favorable to the pros ecution, any rational trier of fact could have found the ess ential 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 sufficie ncy-of-the-evidence arguments, we review them de novo. United States v. Hong, 938 F.3d 1040, 1050 (9th Cir. 2019); United Stat es v. Osuna-Alvarez, 788 F.3d 1183, 1185 (9th Cir. 2015) (per curiam).

USA V. M OTLEY 13 B. Section 1028A(a)(1) and Dubin ’s Crux Test The aggra vated identity theft statute provides that “[w]hoever, during and in relation to” certain enumerated felonies, “knowingly transfers, possesses, or use s, without lawful authority, a means of identification of anoth er 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 fra ud — for which Motley was convicte d — is a qualifying predicate felony. See id. § 1028A(c)(4). The on ly element of the § 1028A(a)(1) offense challenged on appeal is whether, in light of Dubin, Motley “use [d] ” h er relatives’ names (a means of identification) “during and in re lation to” her he althcare fraud. The Supreme Court in Dubin established a new operative test for § 1028A(a)(1). 599 U.S. at 114. Re cognizing that § 1028A(a)(1)’s broad statutory language could sweep in “virtually all cases where a def endant 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 ove rstating the qualifications of an employee who performed psychological testing on patients. Id. at 114. The government charg ed Dubin not only with healthcare fraud, 18 U.S.C. § 1347, but also with aggravated identity theft, § 1028A(a)(1), because the fra udulent 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. M OTLEY 1. Dubin ’s Statutory and Contextual Analysis Dubin started with the statut e’s text. Recogni zing the elasticity of the terms “u se” and “in relation to,” the Court noted that “ [r] esort to context” would b e “especially necessary” to determine their proper scope. Id. at 119. The Court fir st looked to the statute’s titl e: “ 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 c lues, 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,” l ie s “ at the core of § 1028A.” Id. at 122. The Court then applied t he 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 re ad in a similar manner . . . . ” Id. Drawing from dictionaries, the Court obse rved 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 L aw Dictionary 894 (11th ed. 2019)). The three verbs “capture various aspects of ‘ classi c identity theft. ’ ” Id. (c itation omitted). “ Possess ” a nd “ 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. S ome predicate crimes lack any statutory mi nimum, whereas § 1028A(a)(1)

USA V. M OTLEY 15 carries a partic ularly harsh two-year minimum. Id. at 127. The g overnment’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) “tar gets situations where the means of identi fication itself plays a key role — one that warrants a 2- year mandatory minimum.” Id. a t 129 (emphasis added). Based on its contextual and statutory analysis, t he 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 offe nse criminal, rather than merely an ancillary f eature of a billing method.” Id. at 114. Dubin failed to meet this bar through the inclu sion of a patient ’ s name on a Medicare reimbursement claim because tha t use “was not at the crux of what made the u nderlying overbilling fraudulent. ” Id. at 132. I nstead, “[t] h e 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 o f the billi ng method employed.” Id. Two requirements animate Dubin ’s crux test. First, Dubin equates the statutory term “use” with “misuse.” Id. at 114. This ca ptures 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 spe cified, the means of ide ntification must be used “specifically in a fraudulent or deceitful

16 USA V. M OTLEY manner.” Id. at 117 (summarizing the petitioner’s “more targeted reading”). The C ourt likewise maintained that “identity theft is committed when a defendant uses the means of identification it self to defraud or d eceive.” Id. at 123 (emphasis added). Read together, the Court’s warning against collapsing § 1028A(a)(1)’s enh ancement 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 di st inct from — and not dupli cative of — the fr aud in the underlying healthcare c rime. The use of identifiers, in other words, must stand on its own a s fraudulent or deceitful; it cannot be so considered sim ply because it is part o f a broader fraudulent sch eme. Otherwise, the enhancement would fail to meaningfully distinguish the aggravated -identity-theft charge. Second, for this mi suse to be “at the crux of the criminality, ” the means of identification speci fically 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 th e 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 ne xus is required for § 1028A(a)(1) liability to atta ch, we have acknowledged that the mis use of identity must be “critical to the success” of the underlying fraud. Parviz, 131 F.4th at 972. 2. Caselaw P re - Dubin Before Dubin, our caselaw interpreting § 1028A(a)(1) pulled in two directions; Dubin disapproved o f on e in favor of the oth er. We first addressed the term “use” in § 1028A(a)(1) in United States v. Hong, 938 F.3d 1040 (9th

USA V. M OTLEY 17 Cir. 2019). There, the defendant falsely claimed his massage treatments as Medicare-eligible physical therapy. Id. at 1043. We adopted the First and S ixth 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 a t 1050. In B erroa, the First Circuit held that physi cians with fraudulen t licenses who filled prescriptions had not “used” the patients’ identities under § 1028A(a)(1) b ecause they had not “attempt[ed] to pass themselves off as the patients. ” Berroa, 856 F.3d at 156. In M edlock, the Sixth Circuit est ablished a similar rule. An ambulance service mischaracterized the medical necessity of stretchers on Medi care claims to obtain reimbursement. 792 F.3d at 703 – 04. The Sixth Circuit reversed the § 1028A(a)(1) convictions, finding that the defendants h ad not “use [d] ” the names and Medicare identification numbers of beneficiaries by including them on the fr audulent 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.” 93 8 F.3d at 1051 (quoting Berroa, 856 F.3d at 156). We then adopted the First Circ uit ’ s rule that “use” under § 1028A(a)(1) “require [s] that the defendant attempt to pass him or hers elf off as another person or purport to take some other ac tion on another person ’ s be half.” Hong, 938 F.3d at 1051 (quoting Berroa, 856 F.3d at 156). Applying that rule to the facts in Hong, w e held that because “[n]either Hong

18 USA V. M OTLEY 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 som e other a ction 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 sig nature to open a fr audulent life insurance policy as p art of a sc heme to collect advances. Id. at 603. We upheld the § 1028A(a)(1) conviction and distinguished the facts from Hong: B y submitting the insurance application in her cousin ’ s name, the defendant had “‘ attempt [ed ] to pass [herself] off ’ as her cousin through forgery and im personation.” Id. at 604 (alteration in original) (quoting Hong, 938 F.3d at 1051). The defendant’s use of the signature “obs cure[ed] her own role in the fraudulent application” and “wa s thus central to the fraud.” Id. Finally, in yet a third case that term, we confronted fac ts between Hong and Gagarin; the middle path we carved broadened Hong ’s target ed rule. United States v. Harris, 983 F.3d 1125 (9th Cir. 2020). I n Harris, the defenda nt 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. W e found that ne ither Hong nor Gagarin “directly control [led] the outcome here”; instead, we

USA V. M OTLEY 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, w e re asoned 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 fac ilitate the hea lth care fraud.” Id. (quoting Michael, 882 F.3d at 628) (internal quotation marks omitted). The bro adened standa rd that Harris adopted — t hat to “use” me ans to “ further or facilitate the health c are fraud”— was the government ’ s position that the S upreme Court rejected in Dubin. See Dubin, 599 U.S. at 117, 131 (noting the government ’ s position as “ us e of [a] means of identification [that] ‘ facilitates or furthers ’ the predicate offense in some way” and holdi ng that “ being at the crux of the criminality requires more than. . . ‘ facilitation ’ of the offense”); see also id. at 118 (characterizing the government’s rea ding as “near limi tless” and announcing “a narrower rea ding”). Thus, Dubin re quires us to aba ndon 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 Ho ng as one example. Se e 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”— sti ll stands. Hong, 938 F.3d at 1051 & n.8 (quotation marks and cita tion omitted). We will therefore rely on Hong rather than Harris.

20 USA V. M OTLEY 3. Caselaw Post- Dubin We have interp reted and applied Dubin ’s test i n two published decisions. First, in United States v. Ovsepian, 113 F.4th 1193 (9th Cir. 202 4), 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 g overnment’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 sc heme by giving the medical clinic an “ air of legitimacy ” sufficient to pass an audit, under Dubin ’s “crux” test, “merely facili tating a predicate offense is not enough.” Id. at 1207 – 08; see also id. a t 1208 (obse rving that retaining a “pa tient 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” the ory in Parviz, 131 F.4th 966. The defendant was co nvicted 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 he r da ughter appear in pe rson for the application, the defendant submitted a false letter with a forged signature from a nurse practitioner

USA V. M OTLEY 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 num ber, 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 su ccess o f the frau dulent 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 th e underlying offense is c arried out also involve the “fraudulent or dece itful” use of another ’ s means of identification. Dubin held that the “ fr audulent or deceitful ” use of another’s identification must be i n 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 i n) the scheme, as this is i nevitable in almost all healthcare fraud. I nstead, 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. M OTLEY and deceitful misuse of another’s identity. S o a counterfactual may help us separate th e 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 identificati on 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 a part from the predicate offense, is no l onger fraudulent or deceptive, then the use falls outside the ambit of § 1028A(a)(1) be cause a ny 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, w ithout the predicate criminal conduct of inflating Medicare claims by misrepresenting the psychologist’s qualifications, there is nothing wrong with using real patient s’ identifiers on claims; the overall scheme is Me dicare fraud, but the re has been no fraudulent use of the patients’ names. Similarly, i n Ov sepian, absent the fraudulent prescription mill, keeping a patient ’ s re cords in an onsit e 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 — mis representing 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 S upreme Court and we reversed the aggravated identity theft enhancement. By co ntrast, 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, i n Gagarin, even apart from the criminal scheme to receive bonuses on fraudulent

USA V. M OTLEY 23 life insurance policies, the defendant pretend ed to be her cousin by forging her signature and submit ting a life insurance policy application in her name, which const itutes a separate form of f raud. In both of these case s, we affirmed the aggravated identity the ft enhancement. In short, the predi cate offense must be accomplished through the deployment of a fraudulent or deceptive use of means of identification — most often by impe rsonating or passing oneself of f as s omeone 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 g overnment presented sufficient evidence here. C. The Government ’ s Theories At trial, the government p resent ed 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 theor y is that Motley ’ s use of her relatives ’ n ames 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 “ abo ut who owned and controlled the companies and in the certifications those individuals purportedly made.” To support this theory, the government presented testimony from a Medi care expert that the o wner 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. M OTLEY interests in the company and require an authorized official to certify compliance with Medicare regulation s. The government then introduced Action’s and Kaja’s Medicare enrollment applications. Action’s application, dated July 10, 2006, listed Muntz as t he owner and authorized official. Kaja ’s application, dated November 7, 2012, listed Brown as the o wner, CEO, and authorized official. Muntz and Brown also signed th e applications, indicating their intent to ensure that the provider complies with “all ap pli cable statutes, regulations, and program instructions.” 42 C.F.R. § 424.510(d)(3). Neither application identified Motley. But th is evidence, even viewed in the light most favorable to the prosecution, fails to establish § 1028A(a)(1) liability under Dubin. First, the government did n ot present evidence that this omission somehow enabled the fra ud. Nothing was offered at trial to sugge st that Motley was ineligible to register as a provider. To be sure, t he claims were approved because they came from p roviders enrolled in Medicare, but the gove rnment failed to show th at Munt z’s and Brown’s specifi c identities had any bearing on the scheme, much less that they were used in a fraudulent or deceitful manner. I n 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 a ny role in c onvincing 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 bee n unable to obtain a provider number

USA V. M OTLEY 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 fa lse assertions that were critical to the success of the fraudulent passport application”). A government employee testified that he approve d the passport application specifically because he believed the note was written by a licensed medical profe ssional 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 th rough companies in corporated and enrolled in someone else’s na me to c arry out the fraud. Furthermore, in Parviz, the government showe d that the particular identity used — a licensed medical professional with no rel ation to the child — was both a k ey mover and cr itical to the crime’s success. Here, by contrast, no government witness testified that Motl ey’s claims were accepted because of the enroller’s identity— s pecifically, 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 answerin g brief on appeal, the go vernment conten ds that Mo tley may have been ineligible to enro ll the compan ies as Medicare provid ers herself du e to her criminal record. But these p ast convictio ns were n ot presented at trial, and it is unclear wh eth er they would have barred Motley from applying her self. On app eal, we canno t affirm a criminal conviction o n the basis of a theory not pr esented to the jury. Chiarella v. United Sta tes, 445 U.S. 222, 236 (1980).

26 USA V. M OTLEY on the enrollm ent docu ments 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 Medic are exp ert added that providers must submit supplemental enrollment applications whenever th ere is new “information about who owns or controls or mana ges the business.” Given Motley ’ s managerial rol e in the companies, it may have violated Medicare regu lations to omit her, but this does not establish a fraudulent or de ceitful “use” under Dubin. The government presented no evidence that the omission was p urposeful or fraudulent or that it played a critical role in the fraud. Thus, even with the omission, Motl ey could have run Action and Kaj a in an honest fashion; any misdirection in who ran Action a nd Kaja was not integral to the fraudulent scheme she perpetrated on Medicare. Further, even if we though t 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 governme nt ’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 invol vement. 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 wo uld come looking for if it had any question about what was going or

USA V. M OTLEY 27 any problems with wha t wa s 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 rol e or that she intended it to. First, it was no se cret that Motl ey controlled the companies. Multiple government witnesses, including investigators, testified that Motley would hold herself out as the “manager in ch arge” o r the “owner.” At tria l, Special Agent Rochelle Wong testified that sh e h ad never interviewed Munt z 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 li sting Motley as holding various officer positions. In sho rt, if Motley sought to conceal h er 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 for mer employee’s testimony that during a 2015 audit of Kaja, co -schemer M arquez instructed her to characterize both Motley and her a s “consultants. ” B ut even vie wing this evidence in the light mo st favora ble to the prosecution, it merely reveals that Marquez — not Motl ey — 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 us e of their names. Ther efore, no rational juror could find that the fact that Motley ran Action and Kaja was at t he crux of the fraud. The governme nt also c ontended 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 ope ration had

28 USA V. M OTLEY 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 wer e shared b etween 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 dece ptive 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 Medic are e nrollment applications and supplemental enrollment forms listed only Muntz and Brown, the articles of incorporation showed that Action and Kaja w ere incorporated by, and legal ly 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 no t 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 th at Motley, rather than Muntz and Brown, incorporated th e companies o r enrolled them in Medicare, Motley’s “u se” cannot be pr emised on the enrollment paperwork and extends, at most, to the submission of fraudulent claims through the companies. Bu t Muntz’s and Brown’s names do not even appe ar on the

USA V. M OTLEY 29 fraudulent claims; only Action’s and Kaja’s provider numbers do. Third, the fa ct that Motley submitted claims on behalf of the companies, when viewed in isolation, was not deceptive. Medicare does not require the pe rson who e nrolls the provider to be the person who submits electronic claims. The jury saw the Medi care ED I 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 aut horized to submit claims on behalf of the companies, even if her name was not on the enrollment applica tion. 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 themse lves were, of course, fraudulent or deceptive, but the fraud had nothing to do with Brown’s and Muntz’s names. The governme nt also fa iled to show that Motley’s use of her relatives’ identities was fraudulent or de ceptive toward Muntz and Brown. No evidence was p resented that Motley had stolen or taken them without permission, or that she was “ concealing ” the use of her relatives ’ identities f rom 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 ac t on their behalf. Indeed, the g overnment’s theory at trial was that the fraudulent or deceitful aspect of

30 USA V. M OTLEY 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 b usiness of any sort. But,. . . this business was anything but legal.” Motley certainly used Muntz’s and Brown’ s companies to facilitate illegal Medica re fraud, but she did not st eal their identities or use them without permission. As explained above, mere use o f a nother’s identi ty within an unlawful scheme — without more — is not a use “ in a m anner 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 underlyin g scheme, the g overnment’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 un aware of Motley’s criminal use of their companies, their grievance would be that she betrayed their tru st and their c ompanies, not that she stole their identities. Th e Supreme Court cautioned that the two-year mandatory sentence is meant for a “particularly serious form o f identity theft ” and that § 1028A(a)(1) should not be read in a mann er t hat turns the “core” of th is serious identity theft offense “ into something the ordinary user of the Engli sh language would not consider identity thef t at all.” Id. at 124. On these facts, a reasonable p erson may find it unseemly that Motley mis managed her relatives’ companies, but they wo uld not label Motley ’ s conduct as “identity theft.” This is espec ially true considering Muntz and Brown had e xecuted powers of attorne y to Motley. The g overnment’s theory to t he contrary would turn nearly every

USA V. M OTLEY 31 employee who commits fraud in the co urse of their employment into an agg ravated identity thief. The Supre me Court plainly re jected “ such a boundless interpretation. ” Id. at 114. 3. Audit Theory Finally, t he government’s “audit” theory fares no better. As the gove rnment sees it, Medicare conducts re gular unannounced visits to the facilities of en rolled 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 c entral role in passing inspections that let the defendant ’ s companies keep billing and getting pa id. ” But this theory is unsupported by the evidence and foreclosed by the law. O n this record, no rational juror could find that Motley fraudulently or deceptively used her relatives’ names to pass i nspections. At trial, the compliance officers testified to rec eiving and r eviewing d ocuments, personnel c harts, and training materials during visits. When compliance officers or other investigators visited Action and Kaja, Motley conduct ed the exit int erviews, sign ed the compliance forms, and p rovided the records. During these visits, Motley was perfectly honest regarding the absenteeism of owners Muntz and B rown. For example, on one occasion, she tol d a compl iance 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 c ontrary, the record sug gests that

32 USA V. M OTLEY 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 sugg ests the fraud went undetected for as long as it did due to the elaborate ghost apparatus, in cluding a compliant procedures and policies manual; patient and personnel files; delivery logs maintained and pr ovided to compliance officers; and even employees pretend ing to be patients on follow-up phone calls to compliance officers. Even if a rational juror could find that Motl ey ’s use of her relatives’ names hel ped pass inspe ctions, that theory is foreclosed by the law. In Ovsepian, we rejected a nearly identical legal argument from the government. There, the d efendant maintained a copy of a patient’s identifying information without a uthorization 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 “c ould have, and perhaps did, allow the conspiracy to continue undetected,” it was not “at the ‘crux’ of the conspiracy to commit healthca re fr aud.” 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 b ecause it “merely facilitated its commiss ion.” Id. at 1208. Motley’s case is even weaker b ecause there is no evidence that identifying Brown and Muntz on th e enrollment forms helped the companies pass inspections.

USA V. M OTLEY 33 D. The Trial Record Fails to Establish that Motley’s Use Was at the Crux. On this re cord, no r ational 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 evid ence presented at trial was insufficient to allow any ra tional juror to find, beyond a r easonable doubt, that Motley ’s use of her relatives’ names was the “specifically. . . fraudulent or deceitful manner” through which the sch eme was carried out, su ch 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 D ME and for repairs that n ever took place. The fact that the companies were incorporated and enrolled in Medicare un der names other than that of the defendant was “merely an an cillary feature of a billi ng method.” Id. at 114. The government fa iled to present a theory at trial showing that Motley “ use[d] the means of identification itself to defraud o r deceiv e, ” id. at 123 (emph asis added), and did so “in a manner that is fraudulent or deceptive, ” id. at 132. Although t he g overnment showed that Mot ley’s use occurred within an unla wful and f raudulent scheme, it did not show that the use itself was fraudulent or deceptive, either toward the identit y holders or toward Medicare. Motley did not steal or use the m eans of iden tification without permission, nor did the use induce Medicare to pay claims it otherwise wo uld have denied, nor d id 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. M OTLEY names. Without the sche me submitting fraudulent claims for unprovided or unnecessary services, Motl ey’s claims submissions on behalf of Action a nd 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 Medic are, and, as a lawful employee of those companies, Motley was authorized to submit claims on their b ehalf, even if her name was not on the enrollment forms. Thus, in vacuo, Motl ey’s us e of her relatives’ names was not fraudulent or deceptive. The government also failed to show that the appearance of Munt z’s and Brown’s names on the enroll ment and supplemental applications was “a k ey 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 her self; the companies could have been incorporated in Motley’s name; the applications could have li sted Motley. Thus, the government did not show that, absent the us e of the relatives’ names on the Medicare enrollment and supplemental applications, the scheme’s intended outco me wo uld 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. M OTLEY 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 pre sented at trial, the healthcare fr aud involved obtaining pay ments from M edicare, a healthcare benefit program, by falsely bil ling 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 mi srepresenting the medical n ecessity of, or the performance of, services a nd supplies on Action’s and Kaja’s claims. The use of her relatives’ names on the Medicare enrollment applications may have facili tated 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 suppl ies. Put differently, the fraud was a li e about what services were performed, not about who received or provided them. See Dubin, 599 U.S. at 131 – 32 (endorsing a Sixt h Circuit heuristic t hat asks whether the fraud or deceit about identity “go[es] to ‘ who ’ is involved” rather than “misrepresenting how a nd w hen se rvices were provided” (first emphasis added)). Thus, on this record, no rational juror c ould find that the use of Muntz ’s and B rown’s names on the Medicare enrollment applications was a t the c rux o f the fraudulent claims’ objective of obtaini ng 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 ve rdict, the record here leaves us with no choice. No evidence show ed 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. M OTLEY 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.