In United States v. Gladden, No. 21-11621 (Aug. 17, 2023) (Wilson, Jill Pryor, Covington (M.D. Fla.)), the Court affirmed as to Ms. Linton, and affirmed in part, vacated in part, and remanded as to Mr. Gladden.
Ms. Linton and Mr. Gladden were convicted of conspiracy to commit health care fraud and mail fraud, and the substantive offenses of health care fraud, mail fraud, and aggravated identity theft, for their roles in a multi-year scheme to defraud insurance companies. It was alleged that they and several others at Global Compounding Pharmacy received inflated reimbursement payments by billing for medically unnecessary and fraudulent prescriptions.
With regard to Ms. Linton, the Court found the evidence to be more than sufficient to support her convictions. The Court disagreed that the Supreme Court’s decision in Dubin required vacatur of her aggravated identity theft convictions. It found that even under the circumscribed reading of Section 1028A set forth in Dubin, Ms. Linton’s conduct fell within the statute’s purview. That is, unlike in Dubin, Ms. Linton did not provide a service to a client while merely misrepresenting how the service was performed to inflate the bill. Rather, Ms. Linton used the means of identification of former patients and prescribing doctors to overbill for certain products. Ms. Linton’s conduct thus falls squarely within the classic variety of identity theft left untouched by Dubin.
With regard to Mr. Gladden, the Court affirmed his convictions for conspiracy, health care fraud, and mail fraud, but vacated his conviction for aggravated identity theft. The Court held that Dubin required that it vacate his conviction for aggravated identity theft because Dubin made clear that the jury instruction for aggravated identity theft is erroneous at least in part because one sentence in the jury instruction—“[t]he means of identification at least must facilitate, or have the potential of facilitating, the crime alleged in the indictment”—suggests that mere facilitation of the predicate offense is sufficient to support a conviction. The Court in Dubin rejected such a broad reading of Section 1028A, making clear that “being at the crux of the criminality requires more than . . . facilitation of the offense.” The Court found that the jury instruction error affected the outcome of the proceedings as to Mr. Gladden, requiring vacatur.
Mr. Gladden also challenged restitution and forfeiture orders. The Court affirmed both. As to forfeiture, the Court clarified that a defendant’s salary may be the proper measure of forfeiture where the fraud was pervasive and the company’s operations could not have continued at all without the fraud.