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Aggravated Identity Theft (18 U.S.C. § 1028A) and Health Care Fraud (18 U.S.C. § 1347)

Under 18 U.S.C. § 1028A(a)(1), a person is guilty of aggravated identity theft if, in relation to any felony listed in § 1028A(c), he or she “knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person.” According to the applicable First Circuit Pattern Jury Instructions in Criminal Cases, to find the defendant guilty of the alleged crime of aggravated identity theft as charged in the superseding indictment, the government had to prove each of the following beyond a reasonable doubt:

  • First, that the defendant committed the crime of healthcare fraud as charged in the indictment.
  • Second, that during and in relation to the crime of healthcare fraud, the defendant knowingly and willfully used a means of identification, that is the medical identification information of his or her patients as described in the superseding indictment, without lawful authority;
  • Third, that the medical identification information actually belonged to another person; and
  • Fourth, that the defendant knew that the medical identification information belonged to another person.

Someone knows a fact if he or she has actual knowledge of it. Knowledge may not ordinarily be proven directly because there is no way of directly scrutinizing the workings of the human mind. In determining what the defendant knew at a particular time, you may consider any statements made or acts done or omitted by the defendant and all other facts and circumstances received in evidence that may aid in your determination of the defendant’s knowledge.

The law provides for an enhanced penalty when anyone commits aggravated identity theft during and in relation to other certain specified felony offenses.

The Government must prove that the particular defendant knowingly and willfully used another person’s identity “without lawful authority.” The Government does not have to prove that the defendant stole the medical identification information, only that there was no legal authority for the defendant to use such information, and that the defendant knew and intended that the identification information be used for an unlawful purpose.

The Government must prove that the Defendant knew that the medical identification information in fact, belonged to another actual person, not a fictitious person, and the defendant intended that the identification information be used for an unlawful purpose.

See, Section 1028A(a)(1) provides for an enhancement of penalties for the statutes enumerated in §1028(c)(1)-(11). As such, a conviction for the underlying enumerated offense as alleged in the charging document, here health care fraud in violation of 18 U.S.C. § 1347, is required for a conviction under 1028A(a)(1) to stand, and the resulting penalty enhancement to apply. Id.

Also, the Supreme Court held that to satisfy the knowledge element of § 1028A(a)(1), the government must prove “that the defendant knew that the means of identification at issue belonged to another person.” (First Circuit applying rule of lenity and holding that ambiguity regarding whether Congress intended the “knowingly” mens rea requirement of § 1028A to extend to “of another person” language in statute.) And as stated above, with regards to the allegations of the health care fraud statute, to support a conviction for aiding and abetting aggravated identity theft, the government must prove, in addition to the commission of the offense by the principal, that the defendant “consciously shared the principal’s knowledge of the underlying criminal act, and intended to help the principal” commit the criminal acts as charged, or here, as alleged in the superseding indictment. Merely showing that the defendant participated in a transaction that turned out to be part of a fraudulent scheme is not enough, and the government must show that the defendant willfully participated in the scheme with knowledge of its fraudulent nature and with the intent that the illicit objectives be achieved.

Judge D. Brock Hornby’s 2011 Revisions to Pattern Criminal Jury Instructions for the District Courts of the First Circuit.

(First Circuit applying rule of lenity and holding that ambiguity regarding whether Congress intended the “knowingly” mens rea requirement of § 1028A to extend to “of another person” language in statute.) And as stated above, with regards to the allegations of the health care fraud statute, to support a conviction for aiding and abetting aggravated identity theft, the government must prove, in addition to the commission of the offense by the principal, that the defendant “consciously shared the principal’s knowledge of the underlying criminal act, and intended to help the principal” commit the criminal acts as charged, or here, as alleged in the superseding indictment. Merely showing that the defendant participated in a transaction that turned out to be part of a fraudulent scheme is not enough, and the government must show that the defendant willfully participated in the scheme with knowledge of its fraudulent nature and with the intent that the illicit objectives be achieved.

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