US v. Hong, No. 17-50011 (9-12-19)(Paez w/Clifton & England).  In this appeal from conviction for health care fraud, illegal remuneration, and aggravated identity theft, the 9^th affirmed the health care fraud and illegal remuneration convictions but reversed on the aggravated identity ones.  The 9^th found that use of a patient’s identity to falsely bill does not constitute a “use” of the patients’ identities for purposes of aggravated identity theft. 

In this case, the defendant operated an acupuncture and massage clinic. He fraudulently billed for services and got kickbacks from physical therapy companies. For the health care fraud convictions, the 9^th sidestepped the issue of error in giving a deliberate ignorance instruction because of the overwhelming evidence of actual knowledge. For the illegal kickbacks, there was sufficient evidence of the purpose of referrals and the arranging.

The reversal of the aggravated identity convictions was required because the identities were not “used” by the defendant to pass himself off as someone else or by others.

Congrats for that win, and a spirited fight on the other issues, to Carlton Gunn.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/09/12/17-50011.pdf