United States v. Navarro

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 4, 2025
• Docket: 25-661
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 4 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 25-661 D.C. No. Plaintiff - Appellee, 2:22-cr-00154-SB-2 v. MEMORANDUM* LOURDES NAVARRO, AKA Lulu,

Defendant - Appellant.

Appeal from the United States District Court for the Central District of California Stanley Blumenfeld, Jr., District Judge, Presiding

Argued and Submitted October 23, 2025 Pasadena, California

Before: R. NELSON and VANDYKE, Circuit Judges, and COLE, District Judge.**

Defendant-Appellant Lourdes Navarro appeals the district court’s denial of

her motion to dismiss the indictment and entry of final judgment. We have

jurisdiction under 28 U.S.C. § 1291, and we review de novo. United States v. Blixt,

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Douglas Russell Cole, United States District Judge for the Southern District of Ohio, sitting by designation. 548 F.3d 882, 886 (9th Cir. 2008). We affirm.

1. The district court correctly denied Navarro’s motion to dismiss the

indictment, which sufficiently alleged conspiracy and healthcare fraud in violation

of 18 U.S.C. §§ 1347, 1349. The indictment alleged that insurers reimburse only for

medically necessary services, that Navarro performed unnecessary respiratory

pathogen panel (RPP) tests on nasal swabs collected from asymptomatic individuals

for COVID-19 screening, and that Navarro billed over $455 million to insurers for

those additional RPP tests that she knew to be medically unnecessary. These

allegations constituted a “plain, concise, and definite written statement of the

essential facts constituting the offense charged.” Fed. R. Crim P. 7(c)(1). And the

indictment had “adequate detail to inform the defendant of the charge.” United

States v. Kaplan, 836 F.3d 1199, 1216 (9th Cir. 2016) (citation omitted). Thus, the

indictment was facially sufficient.

Navarro’s counterarguments do not persuade us otherwise. First, Navarro

contends that regulations in effect during the COVID-19 pandemic lifted the

statutory requirement that “[p]articipating providers are required to ensure that any

services rendered to Medicare recipients are supported by sufficient evidence of

medical necessity.” United States v. Popov, 742 F.3d 911, 912–13 (9th Cir. 2014)

(citing 42 U.S.C. §§ 1320c-5(a)(1), 1395y(a)(1)(A)). But the regulations did

nothing to alter the medical-necessity requirement; they merely suspended the

2 25-661 traditional physician-order requirement for otherwise necessary COVID-19 testing.

See 42 C.F.R. § 410.32(a)(3). Indeed, when HHS published § 410.32(a)(3), it

explained that it did nothing “to permanently or temporarily waive the reasonable

and necessary statutory requirement, which . . . cannot be waived.” 85 Fed. Reg.

27550, 27595. The COVID-19 regulations and guidance Navarro cites neither

waived the medical-necessity requirement nor authorized the mass testing of healthy

individuals for additional illnesses. The indictment was facially sufficient, and

Navarro’s guilty plea to one count of conspiracy to commit healthcare fraud was

valid.

Second, Navarro contends that RPP tests on asymptomatic individuals in

high-risk settings were, in fact, medically necessary (and therefore not fraudulent).

But because the indictment alleged the RPP tests were unnecessary and fraudulent—

and nothing in the regulations or guidance establishes the contrary proposition—the

indictment placed the matter of medical necessity properly in dispute for trial.

“Reasonable people could indeed interpret the [regulations at issue here] differently.

But this is what juries are for.” United States v. Elfenbein, 144 F.4th 551, 567 (4th

Cir. 2025). Had Navarro pleaded not guilty and proceeded to trial, it would have

been for a jury to decide whether the tests were medically unnecessary and, if so,

whether Navarro billed for them with the requisite scienter. At bottom, Navarro’s

arguments based on regulations and extrinsic sources may have yielded viable

3 25-661 arguments at trial, but they were not grounds to dismiss the facially sufficient

indictment. See United States v. Enriquez, 131 F.4th 940, 943 (9th Cir. 2025).

2. The district court also correctly rejected Navarro’s argument that

§ 1347 is unconstitutionally vague. Navarro fails to identify any ambiguous term in

the plain text of the statute. And Navarro’s concerns with regulatory ambiguity are

inapt because neither the indictment nor the statute relies on or incorporates any

regulatory standard. See United States v. Franklin-El, 554 F.3d 903, 911 (10th Cir.

2009); see also United States v. McLean, 715 F.3d 129, 136–37 (4th Cir. 2013).

Additionally, the healthcare fraud statute “provide[s] a person of ordinary

intelligence fair notice” that submitting massive amounts of insurance claims for

medically unnecessary services is prohibited. United States v. Williams, 553 U.S.

285, 304 (2008).

Finally, § 1347’s requirement that a jury find that Navarro “knowingly and

willfully” committed healthcare fraud is a scienter requirement that “alleviates

vagueness concerns, narrows the scope of the statute’s prohibition, and limits

prosecutorial discretion.” McFadden v. United States, 576 U.S. 186, 197 (2015)

(cleaned up). We have held that “inclusion of a [willfulness] scienter requirement

mitigates a law’s vagueness, especially with respect to the adequacy of notice to the

complainant that his conduct is proscribed.” United States v. Kahre, 737 F.3d 554,

572 (9th Cir. 2013) (cleaned up). And other circuits have so held even as to § 1347

4 25-661 specifically. Franklin-El, 554 F.3d at 911; McLean, 715 F.3d at 137. In sum,

18 U.S.C. §§ 1347 and 1349 are not unconstitutionally vague as applied to Navarro.

AFFIRMED.

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