In United States v. Motley, --- F.4th ---, No. 23-3971 (9th Cir. 2026), the Court vacated Tamara Motley’s aggravated identity theft conviction and remanded for resentencing in a case in which a jury convicted Motley of defrauding Medicare by submitting millions of dollars in false and fraudulent claims for durable medical equipment and related services.
Motley’s underlying healthcare fraud was not in dispute. The sole question was 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.
The Court held 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 was “critical to the success” of the scheme and that the use itself was fraudulent or deceitful.
The Court explained that under 1028A, "'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.'"
Thus, when the predicate offense involves fraud or deceit, Dubin requires that the manner through which the underlying offense is carried out also involve the 'fraudulent or deceitful' use of another’s means of identification."
Dubin held that the “fraudulent or deceitful” use of another’s identification must be in 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 in) the scheme, as this is inevitable in almost all healthcare fraud. Instead, 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.”We will observe here that it is easy to conflate the fraud and deception in the underlying scheme with the fraudulent and deceitful misuse of another’s identity. So a counterfactual may help us separate the 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 identification 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 apart from the predicate offense, is no longer fraudulent or deceptive, then the use falls outside the ambit of § 1028A(a)(1) because any 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, without the predicate criminal conduct of inflating Medicare claims by misrepresenting the psychologist’s qualifications, there is nothing wrong with using real patients’ identifiers on claims; the overall scheme is Medicare fraud, but there has been no fraudulent use of the patients’ names. Similarly, in Ovsepian, absent the fraudulent prescription mill, keeping a patient’s records in an onsite 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— misrepresenting 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 Supreme Court and we reversed the aggravated identity theft enhancement. By contrast, 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.In short, the predicate offense must be accomplished through the deployment of a fraudulent or deceptive use of means of identification—most often by impersonating or passing oneself off as someone else. And the fraudulent aspect of using the means of identification must stand on its own, separate from the fraud of the underlying crime.The government failed to present a theory at trial showing that Motley “use[d] the means of identification itself to defraud or deceive,” id. at 123 (emphasis added), and did so “in a manner that is fraudulent or deceptive,” id. at 132. Although the government showed that Motley’s use occurred within an unlawful and fraudulent scheme, it did not show that the use itself was fraudulent or deceptive, either toward the identity holders or toward Medicare. Motley did not steal or use the means of identification without permission, nor did the use induce Medicare to pay claims it otherwise would have denied, nor did it shift apparent responsibility from Motley to Muntz and Brown.Although we do not lightly set aside a jury’s verdict, the record here leaves us with no choice. No evidence showed that Motley’s use of her relatives’ names was “critical to the success” of the scheme and that the use itself was fraudulent 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.
