U.S. Supreme Court to decide whether mere mention of someone’s name during predicate offense constitutes aggravated identity theft.

By Megan E. Coleman

On November 10, 2022, the United States Supreme Court granted certiorari in Dubin v. United States, No. 22-10, to decide “whether a person commits aggravated identity theft any time he mentions or otherwise recites someone else’s name while committing a predicate offense.” Oral argument is scheduled for February 27, 2023.

This issue not only divided the Fifth Circuit, but it split the federal circuits as well.

The Fifth Circuit’s per curiam opinion in United States v. Dubin, 27 F.4th 1021 (5th Cir. 2022), essentially stands for the proposition that any time a real person’s identity is used during a health care fraud, even if the identity was lawfully obtained, and the person did in fact receive health care services, that a conviction for aggravated identity theft will be automatic, and so will the two-year mandatory consecutive sentence of imprisonment.

In this case, Dubin was convicted of health care fraud for overbilling Medicaid by $101 for a psychological evaluation his company provided to a patient. For this he was sentenced to one year and a day in prison. However, the Government also charged Dubin with aggravated identify theft in violation of 18 U.S.C. § 1028A and obtained a conviction on that count as well, adding a mandatory two year consecutive sentence of imprisonment to Dubin’s sentence. The Government obtained this conviction, not because Dubin stole or misrepresented anyone’s identity, but because he included his patient’s accurate identifying information on the Medicaid claim that misrepresented how and when the service was performed. The Government argued at trial that Dubin’s commitment of the health care fraud offense “obviously” meant that he was “also guilty of” aggravated identity theft because aggravated identity theft is an “automatic” additional offense whenever someone commits provider-payment healthcare fraud.

The Fifth Circuit affirmed the Section 1028A conviction holding that Dubin’s fraudulent billing scheme constituted illegal “use” of a means of identification of another person.

The federal aggravated identity theft statute provides: “Whoever, during and in relation to any felony violation enumerated [elsewhere in the statute], knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person, shall, in addition to the punishment provided for such felony, be sentenced to a term of imprisonment of 2 years.” 18 U.S.C. § 1028A(a)(1).

For the Fifth Circuit, the resolution of the case turned on the meaning of the phrase “uses, without lawful authority, a means of identification of another person” in § 1028A(a)(1). The majority determined that a straightforward reading of § 1028A(a)(1) and the evidence before the jury supported the conviction because the defendant had the “lawful authority” to use a Medicaid patient’s identifying information to obtain lawful reimbursements from the government for covered services; but the defendant also “used” the patient’s identifying information “during and in relation to” the felonies of Medicaid fraud – a “use” that was “without lawful authority.”

This holding means that every single act of provider-payment health care fraud involving a real patient will also count as aggravated identity theft because any payment form submitted to Medicare, Medicaid, or an insurer, needs identifying information for the patient.

The concurring opinion in Dubin criticized the dissenting opinions for “spill[ing]” “[m]uch ink” about “identity theft” when in fact, the text of 18 U.S.C. § 1028A(a)(1) does not contain the words “identity theft” or “theft.” Rather, the text of the statute imposes a sentencing enhancement for the commission of enumerated federal felonies when the criminal “knowingly…uses, without lawful authority, a means of identification of another person.” The majority and concurring opinions focused on the actual text of the statute, and not the meaning or scope of “identity theft.”

The dissenting opinions argued that the majority opinion adopted an interpretation of the aggravated identity theft statute that is expansive and erroneous. Important to the dissent was the fact that Dubin did not misrepresent that the patient received services, that Dubin did not lie about the patient’s identity, and that nobody pretended to be the patient.

Judge Costa’s dissent in particular resounds the Supreme Court’s messages over the last decade that courts should not assign federal criminal statutes a “breathtaking” scope when a narrower reading is reasonable. Judge Costa criticizes the majority’s approach in adopting the government’s broad reading of the statute, something the Supreme Court has not yet done.

The Fifth Circuit majority relied upon the Fourth Circuit’s opinion in Untied States v. Abdelshafi, 592 F.3d 602 (4th Cir. 2010), where the Fourth Circuit affirmed the defendant’s conviction under § 1028A(a)(1). There, the defendant, an owner of a company that transported Medicaid patients, lawfully received the names and Medicaid identification numbers of the patients, but in billing for transportation services, he inflated mileage amounts and submitted claim forms for trips that did not, in fact, occur. The Fourth Circuit found that while the defendant had authority to possess the Medicaid identification numbers, he had no authority to use them unlawfully so as to perpetuate a fraud. The Fourth Circuit “decline[d] to narrow the application of § 1028A(a)(1) to cases in which an individual’s identity has been misrepresented[.]” Id. at 609 (internal citations omitted). The Fourth Circuit was undeterred by the defendant’s representation that “every single incident of health care fraud by a provider would also constitute aggravated identity theft” if the conduct is deemed to violate the statute. Id.

The Fifth Circuit relied on this reasoning in Dubin and the concurring opinion found that the dissenting opinions’ disagreement with the Fourth Circuit’s interpretation of § 1028A(a)(1) “deflect focus from the actual text of § 1028A(a)(1)” by characterizing the offense defined in that statute as “identity theft” as opposed to whether the defendant “use[d]…a means of identification of another person” in committing his crimes. The Fifth Circuit repeated, like the Fourth Circuit, that Congress decided the elements of § 1028A(a)(1), none of which are described by the words “identity theft.”

Also according to the majority and concurring opinions, the dissent draws a distinction not found in the text of § 1028A(a)(1) that the statute only applies to “made-up billing cases” (entity was billed but no services were provided) and does not apply to “overbilling cases” (bills which were fraudulently inflated).

However, decisions from other circuits have similarly interpreted § 1028A(a)(1) as the Dubin dissent did, drawing a distinction based on whether some services or no services were provided. For example, the Sixth and Ninth Circuits held on similar facts that the health care fraud for which the defendants were convicted did not involve the “use” of a patient’s identity within the meaning of § 1028A(A)(1). In United States v. Medlock, 792 F.3d 700 (6th Cir. 2015), the Sixth Circuit held that using the name and Medicare Identification Numbers of Medicare beneficiaries when they caused a claim to be submitted to Medicare for reimbursement that contained such names and numbers for false claims that stretchers were required for transport was not “use” within the meaning of Section 1028A. The Medlock Court noted that the Medlocks misrepresented how and why the beneficiaries were transported, but they did not use the identities of the beneficiaries to do so. In United States v. Hong, 938 F.3d 1040, 1051 (9th Cir. 2019), Hong provided massage services to patients to treat their pain, then participated in a scheme where that treatment was misrepresented as Medicare-eligible physical therapy service. The Ninth Circuit adopted the reasoning of the Sixth Circuit in Medlock.

In United States v. Spears, 729 F.3d 753, 756 (7th Cir. 2013) (en banc), the Seventh Circuit declined a maximalist interpretation of Section 1028A, finding that the defendant may have committed identity fraud, but not identity theft, when the defendant provided a client with a bogus credential containing the client’s own information, but not somebody else’s.

In United States v. Berroa, 856 F.3d 141, 156 (1st Cir. 2017), the First Circuit found that Section 1028A “require[s] that the defendant attempt to pass him or herself off as another person or purport to take some other action on another person’s behalf.”

Petitioner Dubin contends to the Supreme Court that a proper reading of 18 U.S.C. § 1028A demonstrates that a person only violates this section if (1) his use of another person’s means of identification has a genuine nexus to the predicate felony violation, and (2) that use is carried out without the other person’s permission.

So how will the Supreme Court rule? Will it decide that a violation of the aggravated identity theft statute requires someone’s identity to be unlawfully obtained, or will it decide that a person violates the statute if they use the lawfully obtained identity for unlawful means?