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 SiverioEchevarría. 
March 11, 2019 
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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.