United States v. Simon Hong (9th Cir. September 2019)
Economic Offenses/Aggravated Identity Theft – One does not “use” another’s identity under 18 U.S.C. § 1028A by using their information in a fraudulent Medicare-billing scheme, as one’s “use” of another’s identity must be for the purpose of passing themselves off as another person.
Simon Hong was convicted of aggravated identity theft, healthcare fraud, and receiving kickbacks based on a fraudulent Medicare-billing scheme involving his massage and acupuncture clinics. Specifically, Hong was accused of providing private information and the identities of his clinics to physical therapy companies that billed Medicare for services that were not provided and paid Hong kickbacks.
On appeal, the Court affirmed most of Hong’s convictions but reversed his conviction for aggravated identity theft. 18 U.S.C. § 1028A(a)(1) prohibits knowingly “transferring, possessing, or using” another person’s means of identification without lawful authority and in relation to another felony, in this case healthcare fraud. Hong had argued that using the patients’ information for fraudulent billing he did not constitute “using” their identities within the meaning of the statute and that he did not act “without lawful authority” since his patients had voluntarily provided their information to him.
First, the Court rejected Hong’s argument that Hong had not acted “without lawful authority,” since this argument was foreclosed by circuit precedent in the 2015 case, United States v. Osuna-Alvarez. By using their identities and information for reasons unrelated to their healthcare, Hong exceeded the scope of his patient’s authorization to possess and use their private information.
Whether Hong “used” his patients’ identities under § 1028A, however, presented a question of first impression for the Court. Citing opinions from the First and Sixth circuits and Ninth circuit opinions construing the word “use” narrowly in criminal statutes, the Court held that Hong did not “use” his patients’ identities.
Rather, to “use” someone’s identity, as envisioned under § 1028A, one must use their identity to pass themselves off as another person or transfer the identifying information to another for such use. Accordingly, Hong had not tried to pass himself off as one of his patients when he used their identifying information.
Appeal from the Central District of California
Opinion by Paez, joined by Clifton and England