FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
PUERTO RICO [Hon. Daniel R. Domínguez, U.S. District
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
Ignacio Fernández de Lahongrais for Dante
R. Rodríguez, with whom Rodríguez Lopez Law
Offices, P.S.C. was on brief, for George D.
José R. Gaztambide Añeses on joint brief for
Leonardo M. Aldridge on joint brief for Javier
Howard, Chief Judge, Torruella and Kayatta, Circuit Judges.
KAYATTA, CIRCUIT JUDGE.
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.
relevant portion of the indictment at issue identifies the
events and conduct alleged to give rise to a crime as
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
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
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 ...