In United States v. Harris, --- F.3d ---, No. 19-10006 (9th Cir. 2020), the Court affirmed convictions for aggravated identity theft under 18 U.S.C. § 1028A.
Ms. Harris was the owner of a business that provided therapeutic services. She fraudulently billed a government health care program for speech therapy services by, among other things, "submitting claims to TRICARE that falsely identified Kara Spheeris, a speech pathologist who worked for Harris Therapy, as the rendering provider for dates on which Spheeris provided no services."
The issue on appeal was whether "Harris used Spheeris’s name and NPI number 'during and in relation to' the commission of wire fraud."
The Court held she did:
"By inputting Spheeris’s name and NPI number in the forms, Harris employed or used Spheeris’s identification. And that use was 'during and in relation' to the commission of wire fraud, as Harris used Spheeris’s 'identifying information to fashion a fraudulent submission out of whole cloth.' Id. This portion of Harris’s scheme could not have succeeded otherwise, as Spheeris was not a participant in it. Harris did not merely inflate the scope of services rendered during an otherwise legitimate appointment; Harris manufactured entire appointments that never occurred. Indeed, Spheeris had never rendered any services to the patients listed on the claim forms. Like one who fraudulently uses another’s name and physical credit card or credit card number, Harris fraudulently used Spheeris’s name and her NPI number. For these reasons, we hold that Harris’s actions constituted 'use' under the aggravated identity theft statute."
