          United States Court of Appeals
                      For the First Circuit


No. 17-1975

                    UNITED STATES OF AMERICA,

                            Appellant,

                                v.

    DANTE RODRÍGUEZ-RIVERA; JAVIER EFRAÍN SIVERIO-ECHEVARRÍA;
     GEORGE D. ALCÁNTARA-CARDI; MARTHA NIEVES; JAVIER ANTONIO
             AGUIRRE-ESTRADA; CARLOS MALDONADO-LÓPEZ,

                      Defendants, Appellees.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF PUERTO RICO

         [Hon. Daniel R. Domínguez, U.S. District Judge]


                              Before

                       Howard, Chief Judge,
              Torruella and Kayatta, Circuit Judges.


     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 for appellant.
     Ignacio Fernández de Lahongrais for Dante Rodríguez-Rivera.
     Juan R. Rodríguez, with whom Rodríguez Lopez Law Offices,
P.S.C. was on brief, for George D. Alcántara-Cardi.
     José R. Gaztambide Añeses on joint brief for Martha Nieves.
     Leonardo M. Aldridge on joint brief for Javier Siverio-
Echevarría.
March 11, 2019
             KAYATTA,   Circuit   Judge.     A   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.

                                       I.

             The   relevant    portion      of   the    indictment     at    issue

identifies the events and conduct alleged to give rise to a crime

as follows.

             Medicare 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

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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 tubes.

               A DME 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 the beneficiary.

               The 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    submitted

fraudulent           DME     claims    to    Medicare;       (3) Medicare      paid     the

fraudulent claims; and (4) the defendants split the proceeds.



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            The   indictment       also   identified     the    specific    crimes

alleged to have been committed by each defendant as a result of

that conduct.      In particular, it pointed to aggravated identity

theft   under     18 U.S.C.    § 1028A(a)(1),         which    criminalizes      the

knowing    "transfer[],     possess[ion],        or   use[],     without    lawful

authority, [of] a means of identification of another person" during

and in relation to an enumerated list of felony violations.

18 U.S.C.     § 1028A.        Tracking     the    statute,      the     indictment

explicitly charged the defendants with "knowingly transfer[ing],

possess[ing] and us[ing], without lawful authority, a means of

identification     of    another    person"     during   and    in    relation   to

violations of 18 U.S.C. §§ 1347 and 1349, health care fraud and

conspiracy to commit health care fraud, respectively.

            The defendants moved, presumably under Federal Rule of

Criminal    Procedure 12(b)(3)(B),         to    dismiss      the    section 1028A

counts.     The government responded in opposition.                 The defendants

argued that dismissal of the counts was warranted because the

conduct alleged in the indictment did not sufficiently describe a

"use" of a means of identification under section 1028A as defined

by this court in United States v. Berroa, 856 F.3d 141, 156 (1st

Cir.) ("In light of § 1028A's legislative history, as well as the

limitless nature of the government's alternative construction, we

read the term 'use' to require that the defendant attempt to pass

him or herself off as another person or purport to take some other

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action on another person's behalf."), cert. denied sub nom. Davila

v. United States, 138 S. Ct. 488 (2017).            The government objected

to the idea that the sufficiency of its case should be evaluated

by pretrial motion.      It otherwise argued on the merits only that

defendants "used" the means of identification of others.

              The district court granted the defendants' motion and

dismissed the section 1028A counts, holding that the defendants

"submitted the reimbursement forms in their own names and for their

own benefit" and did not submit the claim forms "as representatives

of the beneficiaries nor for the benefit of the beneficiaries."

This interlocutory appeal followed.

                                      II.

              Federal Rule of Criminal Procedure 12(b) provides that

"[a] party may raise by pretrial motion any defense, objection, or

request that the court can determine without a trial on the

merits."      The defense that the indictment "fail[s] to state an

offense" must be raised by pretrial motion when "the basis for the

motion   is    then   reasonably     available    and   the   motion   can    be

determined     without   a   trial   on   the    merits."     Fed.   R.   Crim.

P. 12(b)(3)(B)(v).       For   this    reason,    the   district     court   was

certainly correct to entertain such a pretrial motion claiming

that the indictment failed to state a criminal offense.

              The indictment, however, is on its face adequate to state

an offense.      Unlike a civil complaint that need allege facts that

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"plausibly narrate a claim for relief," Germanowski v. Harris, 854

F.3d 68, 71 (1st Cir. 2017) (quoting Schatz v. Republican State

Leadership Comm., 669 F.3d 50, 55 (1st Cir. 2012), a criminal

indictment    need     only   "apprise       the    defendant      of    the    charged

offense," United States v. Stepanets, 879 F.3d 367, 372 (1st Cir.

2018) (quoting United States v. Savarese, 686 F.3d 1, 7 (1st Cir.

2012)), "so that the defendant can prepare a defense and plead

double jeopardy in any future prosecution for the same offense,"

id. (quoting United States v. Guerrier, 669 F.3d 1, 3 (1st Cir.

2011)).

             Such    is     just     what    the      government's       superseding

indictment did in this case.           It fairly identified the defendants'

conduct alleged to be a crime:                  the submission of specific,

identified claim forms on specified dates falsely stating that a

named     beneficiary      had      received       DME     entitling     that     named

beneficiary to reimbursement, and falsely indicating that the

beneficiary had assigned his or her reimbursement right to a

defendant.     It also cited and tracked the statutory language said

to make such conduct criminal.               As a result, upon reading the

indictment, each defendant knew both the specific offense with

which he or she was charged and the specific conduct said to have

constituted     that      offense.      In     this      manner,   the    government

sufficiently    enabled       the    defendants       to    prepare     defenses   and



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protect themselves against being twice put in jeopardy for the

same offense.

             In nevertheless dismissing the indictment, the district

court did not question that § 1028A is a criminal offense, that

the   indictment   recited     its   elements      properly,    or    that    the

indictment    identified   the    defendants'       conduct    said   to     have

constituted the offense.       Instead, at the defendants' behest and

over the government's objection, the district court undertook to

determine whether the conduct identified in the indictment could,

as a matter of law, support a conviction for the charged offense

of aggravated identity theft.          Among other things, the district

court ruled that no facts were alleged showing that the defendants

"submit[ted     the]   claim     forms       as   representatives      of    the

beneficiaries."

             That ruling presumes that a Rule 12(b) motion provides

an occasion to force the government to defend the sufficiency of

its evidence to be marshalled in support of proving the charged

offense.   It does not.    As we said in Stepanets (issued after the

district court's decision in this case), "the government need not

recite all of its evidence in the indictment."                879 F.3d at 372

(quoting United States v. Innamorati, 996 F.2d 456, 477 (1st Cir.

1993)); see also United States v. DeLaurentis, 230 F.3d 659, 661

(3d Cir. 2000) ("The government is entitled to marshal and present



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its evidence at trial, and have its sufficiency tested by a motion

for acquittal . . . .").

              As this court recently held, under Rule 12(b)(1), "a

district court may consider a pretrial motion to dismiss an

indictment where the government does not dispute the ability of

the   court    to    reach   the   motion   and   proffers,    stipulates,   or

otherwise does not dispute the pertinent facts."              United States v.

Musso, 914 F.3d 26, 29-30 (1st Cir. 2019) (citing United States v.

Weaver, 659 F.3d 353, 355 n* (4th Cir. 2011)). No circuit, though,

allows such a review on an incomplete or disputed factual record.

Nor do the defendants point us to any case in which a circuit court

blessed a requirement that the government complete the factual

record prior to trial.

              The district court in this case apparently regarded the

factual record as complete and undisputed.              The government has

never so conceded.       The claim forms said to constitute the use of

other persons' names, dates of birth, and claim numbers are not in

the record.         Nor is there any evidence concerning how Medicare

interprets such forms.        The indictment alleges that the claim form

must be read as a statement that the identified beneficiary has

assigned his or her benefit claim to one of the defendants.

Whether such a transfer of rights somehow also connotes permission

to act on behalf of the assignor is unclear on the limited record

as it now stands, as is whether the conduct alleged constitutes a

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requisite transfer or possession of the beneficiaries' personal

identifying information.      We tender no opinion as to whether the

prosecution will turn out to have enough evidence to secure a

conviction.      We do hold that the proceedings as they now stand

provide no occasion for determining whether the government's proof

is sufficient to sustain a conviction.         And the record here lacks

any agreed upon completeness.

                                     III.

           For    the   foregoing   reasons,   we   reverse   the   district

court's dismissal of the section 1028A aggravated identify theft

counts, and remand for further proceedings in accordance with this

opinion.




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