Dubin vs. United States Promises to Resolve the Circuit Split Over What Constitutes Aggravated Identity Theft
SCOTUS is about to Decide Whether You Commit Aggravated Identity Theft Just by Reciting Someone’s Name in the Course of Committing a Crime.
In late November 2022, SCOTUS agreed to hear a case that will clarify what conduct constitutes aggravated identity theft and thus triggers a sentence enhancement under 18 U.S.C. §1028A.
This summer, Dubin vs. United States will resolve an issue over which the circuit courts are “openly and intractably divided,” per the petition for certiorari filed by storied SCOTUS litigator Jeffrey L. Fisher. Oral arguments are forthcoming in February and the Court will decide the issue before the end of its term in June.
The federal aggravated identity theft statute, 18 U.S.C. § 1028A, makes it a crime—“during and in relation to a” predicate felony—to knowingly transfer, possess, or “use, without lawful authority, a means of identification of another person.” The issue, according to the petition, is “whether a defendant violates the statute any time he mentions or otherwise recites someone else’s name while committing a predicate offense.”
The Fourth and Fifth Circuits say yes, while seven other circuits say, emphatically, no: an aggravated identity theft conviction requires actually stealing, or otherwise making misrepresentations about, someone’s identity.
Defendant David Dubin was the managing partner of a psychology practice and in 2013, a treatment facility in San Antonio asked the practice to evaluate a minor patient (“Patient L”). In the middle of the evaluation, Dubin’s father, the founder of the practice, directed the evaluator to stop the evaluation because the patient had already exhausted Medicaid benefits for the applicable period (and, therefore, Medicaid wouldn’t pay for additional testing). Dubin later directed an employee of his practice to submit a fraudulent reimbursement claim for $540 that invoked Patient L’s name and Medicaid identification number.
Dubin was found guilty of one count of conspiring to commit healthcare fraud and one count of healthcare fraud, as well as one count of aggravated fraud under §1028A.
At no point did the government dispute that Dubin had the authority to use Patient L’s name in the billing process. They also didn’t contend that anything about the bill he submitted was false. Their theory was that Dubin overbilled Medicaid and because he used Patient L’s identifying information to do so, he was guilty of aggravated identity theft.
On appeal, the Fifth Circuit agreed, holding that a defendant is guilty of aggravated identity theft even if all he does is recite a patient’s name in the course of some predicate offense: even if he has the authority to use that patient’s identifying information and the predicate crime doesn’t involve any type of misrepresentation about that person’s identity. In so ruling, the Fifth Circuit aligned with the Fourth Circuit’s similar standard: the bar for aggravated identity theft is quite low.
The Fifth Circuit rejected Dubin’s argument that he didn’t “use” the child patient’s identity according to the word’s plain meaning. Quoting from Black’s Law Dictionary, the Court reasoned that the plain meaning of the word “use” is “to employ for the accomplishment of some purpose” or “to avail oneself of.” It followed, according to the Court, that Dubin had “used” the patient’s identity “when he took the affirmative acts in the health-care fraud, such as his submission for reimbursement of [the patient’s] incomplete testing.”
If this seems a bit tenuous, it is: at least, according to the seven dissenting Fifth Circuit judges (and seven other circuit courts). In the dissent, Judge Costa wrote that the majority’s opinion failed to see that courts “should not assign federal criminal statutes a ‘breathtaking’ scope when a narrower reading is reasonable.” The majority, he reasoned, permitted “every single act of provider-payment health care fraud involving a real patient to also count as aggravated identity theft.” This is particularly problematic, he wrote, in that any payment submitted to an insurer requires identifying patient information, and so, this broad reading of the statute would incriminate anyone who, in the course of their work, use someone else’s identifying information.
In the petition for cert, Fisher wrote that “the Fifth Circuit’s construction runs roughshod over the rule of lenity, which mandates that ‘when [a] choice has to be made between two readings of what conduct Congress has made a crime, it is appropriate, before [choosing] the harsher alternative, to require that Congress should have spoken in language that is clear and definite.’” When reasonable alternative interpretations exist, courts should apply the narrower construction.
Precedent suggests that the majority of circuits would have applied a narrower construction and thus vacated Dubin’s conviction.
The Sixth Circuit
The Sixth Circuit has applied two tests that limit the statute’s reach. One is from the Medlock case in which defendants misrepresented their eligibility for Medicaid reimbursement. The Court vacated most of the aggravated identity theft convictions in Medlock because although the defendants misrepresented how and why the beneficiaries were treated, they didn’t use the beneficiaries’ identities to do so.
In the 2018 Michael case, the Sixth Circuit applied a different test that similarly limits the statute’s reach. The Michael test requires the government to prove that a defendant used a person’s identity to further or facilitate healthcare fraud. In Michael, the Court affirmed an aggravated identity theft conviction because the defendant used a doctor’s and patient’s identity to create a fraudulent reimbursement submission “out of whole cloth.” The Court distinguished these facts by explaining that if the defendant, in the course of dispensing drugs to a patient under a doctor’s description, merely increased the amount of drugs he dispensed, that conduct would not rise to the level of aggravated identity theft because the use of the identities would not have facilitated or furthered the fraudulent act.
The First and Ninth Circuits
The First and Ninth Circuits have followed the Medlock test in holding that you cannot commit aggravated identity theft if you aren’t making any misrepresentations about someone’s identity. Per the First Circuit, you must try to pass yourself off as someone else or take action on their behalf. For example, in the 2017 Berroa case, the Court vacated an aggravated identity theft conviction for a defendant who obtained medical licenses to write prescriptions for real patients because they didn’t pass themselves off as the patients. And in the 2019 Hong case, the Ninth Circuit held that a defendant who provided massage services to patients and then misrepresented treatments as Medicare-eligible physical therapy did not commit aggravated identity theft because the defendant didn’t use the patients’ identities in any way.
The Second, Eighth, and Eleventh Circuits
These three circuits follow the Michael test. For example, the 2021 Second Circuit case United States vs. Wedd affirmed an aggravated identity theft conviction for a defendant who auto-subscribed consumers in a text messaging service in which they’d never agreed to enroll. In this case, the defendant used the consumers’ identities to further the fraudulent act and the act wouldn’t have been possible without them. Conversely, the Eighth Circuit case United States vs. Gatwas confirmed that you cannot be convicted of aggravated identity theft for simply reciting someone else’s name during a predicate crime. In Gatwas, the Eighth Circuit rejected the theory that a defendant could be “convicted of aggravated identity theft simply because he used a client’s name and social security number in submitting a tax return that fraudulently under-reported income or claimed bogus deductions.” This use would be merely “incidental” to the fraud.
The Seventh Circuit
In the 2013 case Spears, the Seventh Circuit narrowly construed the phrase “another person” to mean a person who did not consent to the use of the means of identification. So in cases where a person lawfully has someone else’s identity, getting to an aggravated identity theft conviction is a stretch at best.
What the Court’s Ruling Will Mean for Defendants
As Fisher explained in the petition for cert, if the Fourth and Fifth Circuits are wrong in their broader interpretation of the statute, then innumerable defendants are spending extra time in prison for reasons that Congress never intended. But if the Fourth and Fifth are correct, then for years, the majority of circuits have been applying the statute too narrowly.
As Fisher pointed out, this type of question arises frequently, any time there is fraud involving the use of someone’s identity. This happens not just in the healthcare context but in cases like social security fraud, passport fraud, theft of public property, cases involving the acquisition of firearms, citizenship fraud, and many more.
By clarifying the conduct that triggers an aggravated identity theft conviction, Dubin can impact not just decades of precedent, but the actual freedoms and rights of hundreds if not thousands of defendants.
Representing Defendants in Federal White Collar Criminal Cases
Your attorney should follow criminal cases before the Supreme Court, especially those that impact the way criminal statutes will be interpreted and applied in future cases. Federal Criminal defense attorney Elizabeth Franklin-Best handles federal criminal appeals throughout the Fourth and Eleventh Circuits and follows new developments in the courts that could affect your case.
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