FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

SIMON HONG, AKA Seong Hong, 

AKA Seong W. Hong, AKA Seong 

Wook Hong,

Defendant-Appellant.

No. 17-50011

D.C. No.

2:16-cr-00038-

DOC-1

OPINION

Appeal from the United States District Court

for the Central District of California

David O. Carter, District Judge, Presiding

Argued and Submitted April 12, 2019

Pasadena, California

Filed September 12, 2019

Before: Richard A. Paez and Richard R. Clifton, Circuit 

Judges, and Morrison C. England, Jr.,* District Judge.

Opinion by Judge Paez

* The Honorable Morrison C. England, Jr., United States District 

Judge for the Eastern District of California, sitting by designation.
2 UNITED STATES V. HONG

SUMMARY**

Criminal Law

The panel reversed convictions for aggravated identity 

theft (18 U.S.C. § 1028A(a)(1)), affirmed convictions for 

health care fraud (18 U.S.C. § 1347) and illegal 

remunerations for health care referrals (42 U.S.C. § 1320a7b(1)(A)), and remanded for resentencing, in a case in which 

the defendant, who owned and operated acupuncture and 

massage clinics, engaged in a fraudulent Medicare-billing 

scheme with physical therapy companies.

Reviewing for plain error, the panel wrote that because 

the evidence of actual knowledge was overwhelming, it did 

not need to determine whether the district court erred by 

giving a deliberate-ignorance instruction on the knowledge 

element of health care fraud.

The panel held that even reviewing de novo, none of the 

defendant’s arguments regarding the sufficiency of the 

evidence to support the illegal-remunerations convictions 

warrants reversal. The panel held that there was sufficient 

evidence for the jury to conclude (1) that patient referrals 

were one purpose for the kickbacks, (2) that the defendant 

referred the patients’ Medicare information to the physical 

therapy companies, and (3) that the defendant received 

kickbacks for arranging the furnishing of services with the 

physical therapy companies. The panel held that any error 

** This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
UNITED STATES V. HONG 3

in omitting the “furnishing of services” language in the jury 

instruction was harmless.

The panel reversed the aggravated identity theft 

convictions because the defendant did not “use” the patients’ 

identities within the meaning of § 1028A, where neither the 

defendant nor the physical therapists attempted to pass 

themselves off as the patients. The panel held that United 

States v. Osuna-Alvarez, 788 F.3d 1183 (9th Cir. 2015), 

forecloses the defendant’s argument that the “without lawful 

authority” element of aggravated identity theft was not 

satisfied because the patients voluntarily provided their 

information.

The panel held that the district court did not err in 

applying Sentencing Guidelines enhancements for the 

defendant’s obstruction of justice and aggravating role in the 

offense.

COUNSEL

Carlton F. Gunn (argued), Kaye McLane Bednarski & Litt,

Pasadena, California, for Defendant-Appellant.

Kerry Creque O’Neill (argued) and Byron McLain, Assistant 

United States Attorneys; Lawrence S. Middleton, Chief, 

Criminal Division; Nicola T. Hanna, United States Attorney; 

United States Attorney’s Office, Los Angeles, California;

for Plaintiff-Appellee.
4 UNITED STATES V. HONG

OPINION

PAEZ, Circuit Judge:

Simon Hong owned and operated acupuncture and 

massage clinics. He provided the Medicare-eligibility 

information and identities of his clinics’ patients to physical 

therapy companies. Those companies would then submit 

claims to Medicare seeking payments for physical therapy 

treatments that had not been provided. The physical therapy 

companies paid a majority of the funds they received to 

Hong, who the government successfully prosecuted for 

health care fraud and related offenses.

Hong appeals his jury convictions for health care fraud 

in violation of 18 U.S.C. § 1347, illegal remunerations for 

health care referrals in violation of 42 U.S.C. § 1320a7b(b)(1)(A), and aggravated identity theft in violation of 

18 U.S.C. § 1028A(a)(1). He also challenges the district 

court’s calculation of the United States Sentencing 

Guidelines (“U.S.S.G.”) advisory range (i.e., the “advisory 

sentencing guidelines range”). We have jurisdiction 

pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291. We 

reverse the convictions for aggravated identity theft and 

remand for resentencing. On all other grounds we affirm.

I.

At trial, the government presented witnesses who had 

participated in the Medicare billing scheme and been 

separately charged as “co-schemers” (Joseff Sales, Eddieson 

Legaspi, and Danniel Goyena). The government also called 

as witnesses four patients who had received treatment at 

Hong’s clinics; two federal investigators; a Medicare claimsprocessing expert; and a man who had coordinated a similar 

scheme with Hong’s help (Byong Min). The government, 
UNITED STATES V. HONG 5

with these witnesses and documentary evidence, established 

the following facts.

Hong owned and operated three massage and 

acupuncture clinics in Southern California under the 

company names CMH Practice Solution, Hong’s Medical 

Management, and HK Practice and Solution, Inc. Hong 

made arrangements with outpatient physical therapy 

companies, RSG Rehab Team, Inc. (“RSG”) and Rehab 

Dynamics, Inc. (“RDI”), wherein he would provide the 

infrastructure of a clinic and they would bill Medicare. 

Unlike Hong and his clinics, as physical therapy companies, 

RSG and RDI had Medicare provider numbers that allowed 

them to submit claims for payments.

Hong provided the clinic space, a receptionist, massage 

therapists, acupuncturists, drivers, and patients who were on 

Medicare. The patients received massage and acupuncture 

treatments, but essentially no physical therapy. The patients 

did not pay for any treatments. They provided their 

Medicare identification information to the clinics and 

believed that Medicare would pay for the massages. 

Medicare does not pay for massages or acupuncture.1

RSG and RDI physical therapists used the patients’ 

Medicare information to submit claims to Medicare for 

physical therapy services. Hong instructed the therapists to 

bill Medicare for four and later five units per patient per date 

of visit (where a unit is 15 minutes of service) in order to 

1 The Medicare expert testified that Medicare might pay for some 

massages, such as to loosen an extremely stiff joint, if performed by a 

physical therapist. In this case, the record is clear that the massages were 

not performed by physical therapists.
6 UNITED STATES V. HONG

make more money. RSG and RDI paid Hong’s companies 

56% of the payments they received from Medicare.

Hong’s relationship with RSG began when he asked 

RSG to “back-bill[]” Medicare for physical therapy 

treatments that had not been provided in the past. Sales, a 

physical therapist for RSG, testified that when he went to 

Hong’s clinics he “almost never” provided physical therapy 

treatments. Legaspi, a physical therapist for RDI, testified 

that he only met with about half of the patients for whom he 

prepared claims. Legaspi observed that “about [one] 

hundred percent” of the patients received acupuncture or 

massages from Hong’s employees “as opposed to any form 

of physical therapy.” When therapists asked Hong about 

providing patients with more physical therapy, Hong told 

them the patients prefer massages and might stop coming to 

the clinics if made to exercise.

Patients similarly testified that they received little to no 

physical therapy services. They received “maybe 5 to 

10 minutes” of physical therapy compared to approximately 

“40 to 50 minutes” of massage treatment each time they went 

to the clinic. The patients who testified learned of the clinics 

through family or people in their neighborhoods, not through 

their doctors. They went to Hong’s clinics because of pain, 

and they wanted the massage or acupuncture treatments.

Through this scheme, thousands of false claims were 

submitted to Medicare for physical therapy services between 

May 2009 and November 2013. Medicare paid a little over 

$2.9 million, of which Hong received just over $1.6 million. 

Hong received checks for his share of the Medicare 

payments at least once a week.

Hong also taught Min how to operate massage clinics 

and bill Medicare for physical therapy. When Min learned 
UNITED STATES V. HONG 7

he was being investigated for fraud, he reached out to Hong, 

and Hong coached him to lie to investigators. Min testified 

that Hong told him to say that after the patients received 

physical therapy treatment, he would just provide 

acupuncture or massage treatment as an “extra service.” Min 

also arranged for Hong to reassure the president of Min’s 

physical therapy clinic, Julian Yniguez, that nothing would 

come of the investigation. Cooperating with investigators, 

Yniguez recorded his conversation with Hong. Min 

ultimately pled guilty to health care fraud and illegal 

remunerations in a separate case.

Later, federal investigators also recorded an interview 

with Hong, during which Hong said he knew acupuncture 

and massages could not be billed to Medicare. Hong agreed 

with the investigators that he was at his clinics “every day.”

After the government rested, Hong moved for acquittal 

on all counts pursuant to Federal Rule of Criminal Procedure 

29, arguing insufficient evidence. The district court denied 

the motion. Hong did not present any witnesses.

The jury returned a guilty verdict on all counts: eight 

counts of health care fraud (Counts 1–8) (18 U.S.C. § 1347), 

nine counts of illegal remunerations (i.e., kickbacks) 

(Counts 9–17) (42 U.S.C. § 1320a-7b(b)(1)(A)), and two 

counts of aggravated identity theft (Counts 18–19) 

(18 U.S.C. § 1028A(a)(1)).

At sentencing, the district court calculated an offense 

level of 30 and a criminal history category I, which meant 

the advisory sentencing guidelines range was 97–121 

months, in addition to a mandatory consecutive 24-month 

sentence for the aggravated identity theft convictions. See

18 U.S.C. § 1028A(a)(1). Relevant here, in reaching that 

range the district court applied a four-level role enhancement 
8 UNITED STATES V. HONG

under U.S.S.G. § 3B1.1(a) because Hong was an “organizer 

or leader” in criminal activity involving five or more 

participants. In addition to Hong, the district court found 

that Sales, Legaspi, Min, and Goyena were also participants 

in the scheme and recognized that there may have been 

others. The district court also acknowledged that another 

person named as a co-schemer in the indictment, Marlon 

Songco, had pled guilty. The district court also applied a 

two-level obstruction of justice enhancement under U.S.S.G. 

§ 3C1.1 based on Hong instructing and encouraging other 

co-schemers to lie to investigating agents. Hong objected to 

the obstruction of justice and role enhancements.

The district court sentenced Hong to 97 months 

imprisonment for the health care fraud convictions and 

60 months imprisonment for the kickback convictions to run 

concurrently. For each aggravated identity theft conviction, 

the court sentenced Hong to 24 months imprisonment, to run 

concurrently with each other but consecutive to the other 

97 months. This resulted in a total sentence of 121 months 

imprisonment.

II.

On appeal, Hong raises separate challenges to each of his 

convictions. First, with respect to his convictions for health 

care fraud, Hong argues the district court erred in giving a 

deliberate ignorance instruction on the knowledge element. 

Second, Hong challenges his kickback convictions by 

arguing that referrals for health care services that were never 

actually provided are outside the scope of the statute 

criminalizing remunerations for health care referrals, and 

that the jury should have been so instructed. Third, Hong 

argues that submitting fraudulent Medicare claims with his 

clinics’ massage patients’ identifying information does not 

constitute aggravated identity theft.
UNITED STATES V. HONG 9

Hong also challenges the district court’s application of 

the obstruction of justice and role enhancements in 

calculating the advisory sentencing guidelines range.

A. Health Care Fraud

We begin with Hong’s challenges to his convictions for 

health care fraud. Defrauding a health care benefit program 

such as Medicare is unlawful. Pursuant to 18 U.S.C. § 1347:

Whoever knowingly and willfully executes, 

or attempts to execute, a scheme or artifice—

(1) to defraud any health care benefit 

program; or

(2) to obtain, by means of false or fraudulent 

pretenses, representations, or promises, any 

of the money or property owned by, or under 

the custody or control of, any health care 

benefit program,

in connection with the delivery of or payment 

for health care benefits, items, or services, 

shall be fined under this title or imprisoned 

not more than 10 years, or both.

For the “knowingly and willingly” part of the health care 

fraud elements, the jury was instructed on actual knowledge 
10 UNITED STATES V. HONG

and deliberate ignorance, the latter of which Hong 

challenges was in error.2

Because Hong did not object to this instruction in district 

court, we review for plain error. United States v. Backman, 

817 F.3d 662, 665 (9th Cir. 2016). We may only correct a 

plain error where the appellant demonstrates that: (1) there 

is an error; (2) the error is clear or obvious, rather than 

subject to reasonable dispute; (3) the error affected the 

appellant’s substantial rights, which in the ordinary case 

means it affected the outcome of the district court 

proceedings; and (4) the error seriously affects the fairness, 

integrity or public reputation of judicial proceedings. United 

States v. Marcus, 560 U.S. 258, 262 (2010).

A deliberate ignorance—or “willful blindness”—

instruction is only relevant if the jury rejects the 

government’s evidence of actual knowledge. United States 

2 The deliberate ignorance instruction that was given at trial was the 

Ninth Circuit model jury instruction at the time, and is very similar to 

the current model instruction. The jury was instructed:

You may find that the defendant acted knowingly if 

you find beyond a reasonable doubt that the defendant, 

first, was aware of a high probability that health care 

fraud was occurring and, second, deliberately avoided 

learning the truth.

You may not find such knowledge, however, if you 

find that the defendant actually believed that there was 

no health care fraud, or if you find that the defendant 

was simply careless.

Model Crim. Jury Instr. 9th Cir. 5.8 (2014). The only difference in the 

current model instruction is that it ends, “. . . or if you find the defendant 

was simply negligent, careless, or foolish.” See Model Crim. Jury Instr. 

9th Cir. 5.8 (2018).
UNITED STATES V. HONG 11

v. Heredia, 483 F.3d 913, 922 (9th Cir. 2007) (en banc). “In 

deciding whether to give a willful blindness instruction, in 

addition to an actual knowledge instruction, the district court 

must determine whether the jury could rationally find willful 

blindness even though it has rejected the government’s 

evidence of actual knowledge.” Id. A jury can believe some, 

but not all, evidence presented by a party. Id. at 923. As we 

have said before, “[t]he government has no way of knowing 

which version of the facts the jury will believe, and it is 

entitled (like any other litigant) to have the jury instructed in 

conformity with [different] rational possibilities. That these 

possibilities are mutually exclusive is of no consequence.” 

Id. Still, “the district judge has discretion to refuse” the 

instruction even where its factual predicates are present. Id. 

at 924.

We need not determine whether it constituted error to 

give the instruction in this case because the evidence of 

actual knowledge was overwhelming and thus Hong’s 

substantial rights were not affected. Marcus, 560 U.S. 

at 262. The jury heard a recording of Hong admitting to a 

federal investigator that he knew it was illegal to bill 

Medicare for massages and acupuncture. An employee of 

RSG testified that Hong had asked RSG to “back-bill[]” 

Medicare for physical therapy treatments that had not been 

provided in the past, where there was no way the physical 

therapy could ever have occurred. And another witness 

testified that Hong taught him how to use physical therapists 

for billing Medicare and to change locations every few years 

to avoid suspicion from Medicare. Given the strength of the 

testimony supporting a finding of actual knowledge, there 

was no plain error in also instructing the jury on deliberate 

ignorance.
12 UNITED STATES V. HONG

B. Illegal Remunerations for Health Care Referrals

Next, we turn to Hong’s convictions for illegal 

remunerations for health care referrals, i.e. “kickbacks,” 

pursuant to 42 U.S.C. § 1320a-7b(b)(1)(A). This antikickback law prohibits “knowingly and willfully solicit[ing] 

or receiv[ing] any remuneration (including any kickback, 

bribe, or rebate) . . . for referring an individual to a person 

for the furnishing or arranging for the furnishing of any item 

or service for which payment may be made in whole or in 

part under a Federal health care program,” such as Medicare. 

42 U.S.C. § 1320a-7b(b)(1)(A).

In challenging these convictions, Hong advances related 

sufficiency of the evidence and jury instruction arguments. 

He does not contest that he received 56% of the Medicare 

payments. Instead, Hong argues there was insufficient 

evidence to support the kickback convictions for three 

reasons: the remunerations were not for the referral of 

patients, but for Hong’s expenses to maintain the clinics; the 

patients learned of the clinics on their own; and the 

fraudulent billing was for services that were never furnished. 

The government argues that Hong waived the second and 

third contentions because when he moved for acquittal in the

district court, Hong advanced only the first argument. See 

United States v. Graf, 610 F.3d 1148, 1166 (9th Cir. 2010) 

(“[W]hen a Rule 29 motion is made on a specific ground, 

other grounds not raised are waived.” (citation omitted)).

Typically, we review de novo the sufficiency of the 

evidence. Backman, 817 F.3d at 665. When reviewing the 

sufficiency of the evidence to support a criminal conviction, 

we “determine whether ‘after viewing the evidence in the 

light most favorable to the prosecution, any rational trier of 

fact could have found the essential elements of the crime 

beyond a reasonable doubt.’” United States v. Nevils, 
UNITED STATES V. HONG 13

598 F.3d 1158, 1163–64 (9th Cir. 2010) (quoting Jackson v. 

Virginia, 443 U.S. 307, 319 (1979)). A waived ground, 

however, may be reviewed only to prevent a manifest 

miscarriage of justice. Graf, 610 F.3d at 1166. Even 

reviewing de novo each ground for insufficient evidence to 

support the kickback convictions, none supports reversal.

Hong’s first argument is unavailing. Hong argues that 

because he spent the remunerations on the clinics’ overhead 

expenses, the remunerations were not kickbacks for 

providing the patient information to the physical therapy 

companies.3 This argument is at odds with United States v. 

Kats, where we recognized that the anti-kickback statute 

requires only that “one purpose of the payment” be to induce 

future referrals, “even if the payments were also intended to 

compensate for professional services.” 871 F.2d 105, 108 

(9th Cir. 1989) (quoting United States v. Greber, 760 F.2d 

68, 69, 72 (3d Cir. 1985)).

Witnesses from the physical therapy companies testified 

that Hong provided them with the patients and their 

identifying Medicare information. Without the patients or 

their identifying Medicare information, the physical therapy 

companies could not have submitted claims to Medicare and, 

as Sales testified, they “wouldn’t have . . . any part in the 

3 Hong argues the jury could not have found the payments were 

“primarily” for his referral of the patients to the physical therapists, 

drawing the word “primarily” from the jury instruction. See infra n.6. 

A conviction for kickbacks does not require the payments be “primarily” 

for referring patients, and the jury did not need to be so instructed. See 

United States v. Kats, 871 F.2d 105, 108 n.1 (9th Cir. 1989). “[A] 

sufficiency challenge should be assessed against the elements of the 

charged crime, not against the erroneously heightened command in the 

jury instruction.” Musacchio v. United States, 136 S. Ct. 709, 715 

(2016).
14 UNITED STATES V. HONG

clinic.” We therefore find there was sufficient evidence for 

the jury to conclude that referrals were one purpose for the 

kickbacks.

Hong’s second argument fares no better. He argues that 

there was also insufficient evidence that he “referred” the 

patients since they learned of the clinics on their own, 

through word of mouth. The issue, however, is not how the 

patients selected a massage clinic, but how they—or their 

identifying Medicare information—reached the physical 

therapy companies filing claims for benefits. See United 

States v. Patel, 778 F.3d 607, 609, 613–16 (7th Cir. 2015) 

(disagreeing with the doctor’s argument that he could not be 

liable for kickbacks because the “patient[s] independently 

chose a specific provider” given that he participated in a 

kickback scheme to sign referrals to that provider); see also 

United States v. Dailey, 868 F.3d 322, 330–31 (5th Cir. 

2017) (calling the doctor who signed necessary referral 

forms and then received money in turn for those signatures 

a “gatekeeper” and affirming his health care kickbacks 

conviction). The evidence presented at trial was sufficient 

for the jury to find that Hong referred the patients’ Medicare 

information to the physical therapy companies.4

Third, Hong’s argument that he could not have violated 

the statute because physical therapy services were never 

4 In his reply brief, Hong reframes this argument to suggest that he 

would have been a referrer if RSG and RDI had physically separate 

facilities, but that providing the patients’ information to RSG and RDI at 

his own clinics did not violate the anti-kickback statute. This new tactic 

does not save the argument. Hong collected the patients’ information at 

the massage clinics and referred it to the physical therapy companies for 

billing, in return for payments—it does not matter whether the physical 

therapy companies were within the same building.
UNITED STATES V. HONG 15

“furnished” also fails.5 The anti-kickback statute 

criminalizes remuneration for referrals for “the furnishing or 

arranging for the furnishing of any item or service . . .” 

42 U.S.C. § 1320a-7b(b)(1)(A) (emphasis added). 

Accordingly, by the statute’s terms the services need not 

have been provided. We have recognized that the antikickback statute is meant to address “the potential for 

unnecessary drain on the Medicare system.” Kats, 871 F.2d 

at 108 (quoting Greber, 760 F.2d at 71). In the anti-kickback 

statute, “any remuneration” includes “sums for which no 

actual service was performed” in addition to those for which 

some professional time was expended. Greber, 760 F.2d 

at 71. Thus, there was also sufficient evidence for the jury 

to conclude that Hong received kickbacks for arranging the 

furnishing of services with the physical therapy companies.

Relatedly, Hong argues that the district court erred by 

failing to instruct the jury that the referral had to be for the 

“‘furnishing of any item or service’ covered by Medicare.” 

The district court instructed the jury on the elements of the 

kickback charges without using the statute’s “furnishing” 

language.6 Hong did not object to the instruction at trial, so 

5 Hong agrees that submitting Medicare claims for unperformed 

services is fraud, but he contests that receiving money for unperformed 

services is a kickback.

6 The jury was instructed:

In order for the defendant to be found guilty of [illegal 

remunerations for health care referrals], the 

government must prove each of the following 

elements beyond a reasonable doubt:

One, the defendant knowingly and willfully received 

money;
16 UNITED STATES V. HONG

we review this claim for plain error. Backman, 817 F.3d at 

665; see also Marcus, 560 U.S. at 262 (identifying the four 

showings an appellant must make to establish plain error). 

Any error in omitting the “furnishing of services” language 

in the instruction was harmless and did not affect Hong’s 

substantial rights or the outcome of the proceedings because 

unlawful remunerations include “sums for which no actual 

service was performed.” Greber, 760 F.2d at 71; see also 

United States v. Vernon, 723 F.3d 1234, 1262–63 (11th Cir. 

2013) (finding no plain error where a similar instruction was 

given).

In sum, there was sufficient evidence to support Hong’s 

convictions for violating the anti-kickback statute and there 

was no plain error in the jury instructions for those 

convictions.

C. Aggravated Identity Theft

Hong’s third set of convictions was for aggravated 

identity theft pursuant to 18 U.S.C. § 1028A(a)(1). This 

identity theft statute prohibits “knowingly transfer[ring], 

possess[ing], or us[ing], without lawful authority, a means 

of identification of another person” during and in relation to 

Two, the money was paid primarily in order to induce 

the referral of a patient insured by Medicare;

Three, the patient’s services were covered, in whole or 

in part, by Medicare; and

Four, Medicare is a federal health care program.

There is no Ninth Circuit model jury instruction for the elements of 

42 U.S.C. § 1320a-7b(b)(1)(A). The instruction given in this case is 

consistent with the model instruction in the Eighth Circuit. See Model 

Crim. Jury Instr. 8th Cir. 6.42.1320 (2018).
UNITED STATES V. HONG 17

another felony, including health care fraud. 18 U.S.C. 

§ 1028A(a)(1), (c). A conviction for aggravated identity 

theft carries a mandatory two-year term of imprisonment in 

addition to the punishment provided for the related felony. 

Id. § 1028A(a)(1).

The government alleged that Hong used the names and 

Medicare-eligibility information of patients to submit, with 

the help of his co-schemers, claims for benefits without 

lawful authority. Hong argues there was insufficient 

evidence of aggravated identity theft for two reasons: the 

“without lawful authority” element was not satisfied because 

the patients voluntarily provided their information; and this 

fraudulent billing does not constitute a “use” of the patients’ 

identities within the meaning of the aggravated identity theft 

statute. Although framed as sufficiency of the evidence 

arguments, these are statutory interpretation arguments that 

we review de novo. United States v. Osuna-Alvarez, 

788 F.3d 1183, 1185 (9th Cir. 2015).

The first argument is foreclosed by Osuna-Alvarez, in 

which we held that permission to use another’s identity in an 

unlawful scheme is not “lawful authority” under section

1028A. Id. at 1185–86 (“This [statute] clearly and 

unambiguously encompasses situations like the present, 

where an individual grants the defendant permission to 

possess his or her means of identification, but the defendant 

then proceeds to use the identification unlawfully.”). The 

same is true in the health care fraud context. See United 

States v. Mahmood, 820 F.3d 177, 187, 189 (5th Cir. 2016) 

(citing Osuna-Alvarez throughout); United States v. 

Abdelshafi, 592 F.3d 602, 607, 609 (1st Cir. 2010).

The latter argument presents a new question for our 

court: whether the fraudulent billing demonstrated in this 

case constitutes a “use” of the patients’ identities under 
18 UNITED STATES V. HONG

section 1028A. Under other criminal statutes, we interpret 

“use” in limited, context-specific ways. See, e.g., United 

States v. Bain, 925 F.3d 1172, 1177 (9th Cir. 2019) 

(describing our precedent limiting the “use” of a weapon 

pursuant to the federal bankruptcy statute, 18 U.S.C. 

§ 2113(d), to “active employment of the weapon” (internal 

quotation omitted)). Interpreting section 1028A, two of our 

sister circuits, the First and Sixth, have narrowly construed 

“use” and reversed convictions for aggravated identity theft 

in analogous contexts. United States v. Berroa, 856 F.3d 141 

(1st Cir. 2017); United States v. Medlock, 792 F.3d 700 (6th 

Cir. 2015). We agree with their reasoning.

In Medlock, the defendants operated an ambulance 

service that transported patients to kidney dialysis facilities, 

and Medicare reimbursed them for the cost of such 

transports. 792 F.3d at 703. The defendants filed Medicare 

claims falsely stating that stretchers were required for the 

transport, where the use of stretchers would entitle the 

ambulance service to Medicare reimbursement. Id. at 705. 

The Sixth Circuit looked to the text of section 1028A(a)(1), 

noting that because “Congress placed ‘use’ near ‘transfers’ 

and ‘possesses,’ . . . ‘use’ must have a more limited 

definition than the government suggests.” Id. at 706. The 

Sixth Circuit reversed the aggravated identity theft 

conviction because although the defendants “did transport 

the specific beneficiaries whose names they entered on the 

forms[,] they lied only about their own eligibility for 

reimbursement for the service.” 7 Id. Critically, the 

defendants “did not attempt to pass themselves off as anyone 

other than themselves. [They] misrepresented how and why

7 The Sixth Circuit recognized the defendants in Medlock acted 

“without lawful authority,” but that did not alter the court’s interpretation 

of “use.” Id. at 708.
UNITED STATES V. HONG 19

the beneficiaries were transported, but they did not use those 

beneficiaries’ identities to do so.” Id. at 707; see also United 

States v. Michael, 882 F.3d 624, 629 (6th Cir. 2018) 

(interpreting Medlock and noting, hypothetically, that if a 

pharmacist “inflated the amount of drugs he dispensed, the 

means of identification of the [prescribing] doctor and 

patient would not have facilitated the fraud”).

The First Circuit reached the same result in Berroa. 

There, the defendants obtained their medical licenses by 

fraud. 856 F.3d at 147–48. The government argued that 

filling prescriptions for patients—without lawfully obtained 

medical licenses—was “use” of the patients’ identities for 

purposes of the aggravated identity theft statute. Id. at 155–

56. But “the word ‘use’ is fraught with ‘interpretational 

difficulties because of the different meanings attributable to 

it.’” Id. at 156 (quoting Bailey v. United States, 516 U.S. 

137, 143 (1995), superseded by statute on other grounds, 

18 U.S.C. § 924(c)(1)). As the First Circuit recognized, the 

legislative history of the aggravated identity theft statute 

“provide[s] several examples of identity theft. Notably, each 

of these examples involved the defendant’s use of personal 

information to pass him or herself off as another person, or 

the transfer of such information to a third party for use in a 

similar manner.” Id. (quoting H.R. Rep. No. 108-528, at 5–

6, reprinted in 2004 U.S.C.C.A.N. 779, 781–82). These 

examples included “bogus Federal income tax returns in 

others’ names” and “use of stolen identity to apply for and 

receive Social Security benefits.” Id. (internal quotations 

omitted). “While, in a colloquial sense, [the defendants] 

could be said to have ‘used’ their patients’ names in writing 

prescriptions, they certainly did not attempt to pass 

themselves off as the patients.” Id. To interpret “use” 

broadly “could encompass every instance of specified 

criminal misconduct in which the defendant speaks or writes 
20 UNITED STATES V. HONG

a third party’s name.” Id. (citing United States v. Spears, 

729 F.3d 753, 756 (7th Cir. 2013)). Given the legislative 

history and “limitless nature of the government’s alternative 

construction,” the First Circuit “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 action on 

another person’s behalf.”8 Id.

This case is analogous to Medlock. Hong provided 

massage services to patients to treat their pain, and then 

participated in a scheme where that treatment was 

misrepresented as a Medicare-eligible physical therapy 

service. See Medlock, 792 F.3d at 706. Neither Hong nor 

the physical therapists “attempt[ed] to pass themselves off as 

the patients.” Berroa, 856 F.3d at 156. Hong’s fraudulent 

scheme ran afoul of other statutes—namely, health care 

fraud and unlawful remunerations—but not section 1028A. 

We hold that Hong did not “use” the patients’ identities 

within the meaning of the aggravated identity theft statute. 

Accordingly, we reverse Hong’s convictions on Counts 18

and 19.

8 In subsequent cases, our sister circuits have affirmed convictions 

for aggravated identity theft where defendants have “purport[ed] to take 

some other action on another person’s behalf” through impersonation or 

forgery. United States v. Valdes-Ayala, 900 F.3d 20, 35 (1st Cir. 2018) 

(forging signatures); United States v. Morel, 885 F.3d 17, 23 (1st Cir. 

2018) (depositing a forged check under another person’s name and 

purporting to bear that person’s signature); see also United States v. 

Munksgard, 913 F.3d 1327, 1330 (11th Cir. 2019) (internal quotations 

omitted) (forging another person’s name to a contract submitted to a 

bank in support of a loan application).
UNITED STATES V. HONG 21

D. Advisory Sentencing Guidelines Range

Finally, Hong argues that the district court improperly 

applied enhancements for obstruction of justice and for his 

role in the offense in calculating his advisory sentencing 

guidelines range. “We review the district court’s 

interpretation of the Sentencing Guidelines de novo, its 

application of the Guidelines to the facts of the case for an 

abuse of discretion, and its factual findings for clear error.” 

United States v. Vallejos, 742 F.3d 902, 905 (9th Cir. 2014).

A district court may apply a two-level obstruction of 

justice enhancement to the base offense level “[i]f (1) the 

defendant willfully obstructed or impeded, or attempted to 

obstruct or impede, the administration of justice with respect 

to the investigation, prosecution, or sentencing of the instant 

offense of conviction, and (2) the obstructive conduct related 

to . . . a closely related offense.” U.S.S.G. § 3C1.1. The 

district court applied this enhancement based on Hong 

instructing and encouraging other co-schemers to lie to 

investigating agents. Specifically, the district court cited the 

audio recording of Hong speaking with a participant in 

Min’s fraud scheme.

Hong objected to this enhancement in the district court, 

arguing that his statements were a denial of guilt, not 

obstruction. Now, Hong argues that Min’s fraud was not 

part of Hong’s “instant offense” or a “closely related 

offense,” and his attempts to “reassure” Min and participants 

in his fraud scheme were not a “willful” attempt to obstruct 

an investigation. The government contends that because 

Hong’s argument has shifted on appeal, we should review 

for plain error. But Hong’s “basic claim remains the 

same”—that his communications with co-schemers were not 

obstruction—so we review for abuse of discretion the district 

court’s application of the guidelines and for clear error its 
22 UNITED STATES V. HONG

factual findings. See Vallejos, 742 F.3d at 905; see also 

United States v. Wahid, 614 F.3d 1009, 1016 (9th Cir. 2010) 

(declining to apply a heightened standard of review where 

defendant’s arguments against the guidelines calculation 

were based on different enhancements in district court and 

on appeal).

“[U]nlawfully influencing a co-defendant, witness, or 

juror, directly or indirectly, or attempting to do so” is 

obstructive conduct. U.S.S.G. § 3C1.1, cmt. 4(A). While 

aware of an ongoing investigation, Hong told Yniguez, “just 

. . . make [a] story,” and that he had “[a]lways” done that 

and “they didn’t bring me to court.” There was no error in 

treating this as obstructive conduct because it could be a 

direct or indirect attempt to influence a potential witness 

(even though Yniguez did not end up being a witness). We 

affirm the district court’s application of the obstruction of 

justice enhancement in determining the advisory sentencing 

guidelines range.

A district court may apply a four-level aggravating role 

enhancement where, like here, “the defendant was an 

organizer or leader of a criminal activity that involved five 

or more participants or was otherwise extensive . . . .” 

U.S.S.G. § 3B1.1(a). A “participant” is “criminally 

responsible for the commission of the offense, but need not 

have been convicted.” Id., cmt. 1. The district court found 

a total of five or more participants by counting Sales, 

Legaspi, Songco, Min, and Goyena, in addition to Hong. 9 

9 Because this enhancement, unlike the obstruction of justice 

enhancement, does not include “closely related offenses,” the district 

court erred in counting Min as a participant. Hong, however, concedes

that there were five or more participants. In addition to himself, he refers 

to three as “equally culpable” (Sales, Goyena, and Songco), as well as a 
UNITED STATES V. HONG 23

Hong objected to this enhancement in district court. On 

appeal, Hong argues there is no evidence of Hong acting as 

a leader or organizer.

The sentencing guidelines instruct the court to consider 

the following factors in determining whether a defendant had 

a leadership and organizational role:

[T]he exercise of decision making authority, 

the nature of participation in the commission 

of the offense, the recruitment of 

accomplices, the claimed right to a larger 

share of the fruits of the crime, the degree of 

participation in planning or organizing the 

offense, the nature and scope of the illegal 

activity, and the degree of control and 

authority exercised over others . . . This 

adjustment does not apply to a defendant who 

merely suggests committing the offense.”

U.S.S.G. § 3B1.1, cmt. 4. Here, Hong recruited one of the 

physical therapy companies to the scheme by asking the 

physical therapists to bill Medicare for claims for physical 

therapy treatments that had never been performed. He 

provided the services for which the patients came to the 

clinic and disclosed their Medicare information. He 

instructed the physical therapists to bill for longer periods of 

time in order to claim a larger payment. But see United 

States v. Holden, 908 F.3d 395, 402–03 (9th Cir. 2018) 

(instructing a co-equal in a criminal scheme is “‘facilitation’ 

rather than ‘organization’”). And Hong claimed the largest 

fourth (Legaspi). Even without Min there were at least five participants, 

including Hong.
24 UNITED STATES V. HONG

share—56%—of the payments from Medicare.10 Based on 

these findings, we affirm the application of the aggravating 

role enhancement in the sentencing guidelines range.

III.

Hong participated in and, through kickbacks, profited 

from a health care fraud scheme. His conduct, however, falls 

short of aggravated identity theft as it is contemplated in the 

statute. We therefore reverse Hong’s convictions for 

aggravated identity theft and remand for resentencing. On 

all other grounds we affirm.

AFFIRMED in part, REVERSED in part, and 

REMANDED.

10 Hong provides no evidence for his argument that this arrangement 

was meant to or did equalize the amounts each participant received after 

paying their expenses.