Supreme Court Narrowly Interprets Aggravated Identity Theft Statute

By Sarah Wirskye - On

In Dubin v. United States, the Supreme Court unanimously held that Dubin did not violate 18 U.S.C.A. § 1028A, when he submitted a fraudulent claim to Medicaid using a patient’s name. In holding such, the Court stated that “Section 1028A(a)(1) is violated when the defendant’s misuse of another person’s means of identification is at the crux of what makes the underlying offense criminal, rather than merely an ancillary feature of a billing method.”

Dubin was the managing partner at a psychology practice in Texas that provided mental health evaluations at emergency youth shelters. He was convicted of conspiracy to commit health care fraud under 18 U.S.C.A. § 1349, health care fraud under 18 U.S.C.A. § 1347, and aggravated identity theft under 18 U.S.C.A. § 1028A. The charges were based on Dubin’s overbilling for psychological evaluations based on misrepresentations of the qualifications of the employee whose services he billed for. The government’s position was that Dubin violated section 1028A based on using a certain patient’s identity to submit the claim. He was convicted at trial and the Fifth Circuit affirmed the conviction.

In reversing Dubin’s conviction, the Court found that the government’s broad interpretation of the statute “bears little resemblance to any ordinary meaning of ‘identity theft.'” The Court further stated that the statute requires a “genuine nexus” between the use of a person’s identity and the underlying offense. The use of a person’s identification must be “at the crux” of the criminal conduct and not just an “ancillary feature.” It found that Dubin did not “use” the patient’s means of identification “in relation to” the predicate offense within the meaning of the aggravated identity theft statute.

This is a significant ruling because 1028A is often utilized in healthcare fraud prosecutions, which is an enumerated underlying felony in the identity theft statute. The statute imposes an additional two years of imprisonment on anyone who “during and in relation to any felony violation enumerated … knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person.” The mandatory two years of imprisonment is a powerful tool threatened or charged by prosecutors in health care fraud cases. Mandatory imprisonment often makes plea bargaining challenging for both parties. It can also result in a lengthy term of imprisonment which may not be warranted. Thus, this ruling could be beneficial for both defense counsel and AUSAs resolving cases and for defense counsel in sentencings.

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