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United States v. Rodriguez-Rivera

United States Court of Appeals, First Circuit

March 11, 2019

UNITED STATES OF AMERICA, Appellant,
v.
DANTE RODRÍGUEZ-RIVERA; JAVIER EFRAÍN SIVERIO-ECHEVARRÍA;GEORGE D. ALCÁNTARA-CARDI; MARTHA NIEVES; JAVIER ANTONIOAGUIRRE-ESTRADA; CARLOS MALDONADO-LÓPEZ, Defendants, Appellees.

          APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. Daniel R. Domínguez, U.S. District Judge]

          Dennise N. Longo-Quinones, Assistant United States Attorney, with whom Rosa Emilia Rodríguez-Vélez, United States Attorney, Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, and Mainon A. Schwartz, Assistant United States Attorney, were on brief for appellant.

          Ignacio Fernández de Lahongrais for Dante Rodríguez-Rivera.

          Juan R. Rodríguez, with whom Rodríguez Lopez Law Offices, P.S.C. was on brief, for George D. Alcántara-Cardi.

          José R. Gaztambide Añeses on joint brief for Martha Nieves.

          Leonardo M. Aldridge on joint brief for Javier Siverio-Echevarría.

          Before Howard, Chief Judge, Torruella and Kayatta, Circuit Judges.

          KAYATTA, CIRCUIT JUDGE.

         A United States grand jury indicted three doctors and three employees of a durable medical equipment ("DME") supplier in Puerto Rico on counts of health care fraud and conspiracy to commit health care fraud, under 18 U.S.C. §§ 1347 and 1349, and aggravated identity theft under 18 U.S.C. § 1028A. The district court dismissed the aggravated identity theft counts because it agreed with the defendants that the facts alleged in the indictment did not adequately make out a case for aggravated identify theft. The government now appeals, contending both that the indictment's factual allegations, if true, describe an instance of aggravated identity theft and that, in any event, a motion to dismiss a grand jury indictment does not provide an occasion in this case for determining, over the government's objection, whether the facts alleged in the indictment are sufficient to establish the charged offense. Because we agree with the latter argument, we need not consider the former, and we reverse the order of dismissal.

         I.

         The relevant portion of the indictment at issue identifies the events and conduct alleged to give rise to a crime as follows.

         Medicare covers a beneficiary's access to reusable DME that is medically necessary and that is ordered by a licensed medical doctor or other qualified health care provider. Examples of DME are motorized wheelchairs, hospital beds, oxygen concentrators, nebulizers, and surgical dressings. Medicare also covers certain DME accessories, such as adjustable wheelchair arm rests, safety belts, pelvic straps, reclining backs, seat cushions, and tire pressure tubes.

         A DME supplier can submit a claim to Medicare in order to seek direct reimbursement for DME supplied to a beneficiary, but only if that beneficiary has assigned his or her right of payment to the DME supplier. When submitting a claim, the DME supplier must provide, among other things: (1) the beneficiary's name and Health Insurance Claim Number; (2) the name and identification of the physician or provider who ordered the DME; and (3) a description of the DME provided to the beneficiary.

         The defendants are either physicians in Puerto Rico or employees of Equipomed, a Puerto Rican DME supplier. According to the indictment, from 2007 to 2013, the defendants engaged in a scheme to defraud Medicare. The alleged scheme was straightforward: (1) the defendant doctors wrote fraudulent prescriptions or medical orders for DME without beneficiaries' assent or knowledge and without even having examined the beneficiaries; (2) the Equipomed defendants then ...


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