Dubin v. United States
599 U. S. ____ (2023) (2023)
Rule of Law:
Under the aggravated identity theft statute, 18 U.S.C. § 1028A(a)(1), a defendant "uses" another person's means of identification "in relation to" a predicate offense only when the use of the identification is at the crux of what makes the conduct criminal, not when it is merely an ancillary feature of the crime.
Facts:
- David Dubin helped manage a psychological services company.
- The company provided psychological testing to a patient whose care was covered by Medicaid.
- Dubin submitted a reimbursement claim to Medicaid for the patient's testing.
- The claim included the patient's name and Medicaid reimbursement number.
- Dubin's submission falsely stated that a licensed psychologist had performed the testing, when in fact a less-qualified psychological associate had done so.
- This misrepresentation about the service provider's qualifications inflated the amount of the reimbursement claim.
- Dubin also altered the date on which the examination occurred in the claim.
Procedural Posture:
- David Dubin was charged with healthcare fraud and aggravated identity theft in the U.S. District Court for the Western District of Texas.
- A jury convicted Dubin on the aggravated identity theft count.
- The District Court denied Dubin's post-trial challenge to his conviction, explaining it was bound by existing Fifth Circuit precedent.
- Dubin (appellant) appealed his conviction to the U.S. Court of Appeals for the Fifth Circuit.
- A three-judge panel of the Fifth Circuit affirmed the conviction.
- The Fifth Circuit granted rehearing en banc and, in a fractured decision, again affirmed the District Court's judgment.
- The U.S. Supreme Court granted certiorari to resolve a conflict among the lower courts on the statute's scope.
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Issue:
Does a defendant "use" another person's means of identification "in relation to" a predicate offense under the aggravated identity theft statute, 18 U.S.C. § 1028A(a)(1), when the identification is merely an ancillary part of a fraudulent billing scheme, rather than the crux of the fraudulent conduct itself?
Opinions:
Majority - Sotomayor
No. A defendant does not 'use' another's means of identification 'in relation to' a predicate offense when the identification is merely an ancillary feature of the crime; the statute requires that the misuse of the identification is at the crux of what makes the conduct criminal. The text and context of § 1028A(a)(1) do not support the government's boundless interpretation that would cover any fraud where a name is part of the billing method. The statute's title, 'Aggravated identity theft,' indicates a focus on the common understanding of that crime, where the misuse of identity is central to the criminality. The neighboring verbs 'transfers' and 'possesses' connote theft, and under the canon of noscitur a sociis ('a word is known by the company it keeps'), 'uses' should be interpreted similarly to refer to the deceitful use aspect of identity theft. The government's broad reading would render the other verbs superfluous and would attach a severe, mandatory two-year sentence to a vast range of everyday overbilling offenses, a result this Court prudently avoids construing from opaque statutory language.
Concurring in the judgment - Gorsuch
Yes, the judgment should be reversed, but because the statute is unconstitutionally vague. While the Court correctly rejects the government's overly broad interpretation, the 'crux of the criminality' test it creates is itself unworkable and fails to provide the fair notice required by due process. The statute provides no clear lines to distinguish when the use of an identification is 'at the crux' versus when it is merely 'ancillary,' effectively making it a 'Rorschach test' for judges and juries. A law that fails to provide even rudimentary notice of what it criminalizes is no law at all. The statute's vagueness, not the majority's new interpretive gloss, is the fundamental problem that should be addressed.
Analysis:
This decision significantly narrows the scope of the federal aggravated identity theft statute, 18 U.S.C. § 1028A. It prevents prosecutors from leveraging the statute's mandatory two-year sentence in a wide variety of fraud cases where a victim's name is used incidentally, such as in routine billing. The 'crux of the criminality' test establishes a new, higher bar for conviction, requiring that the misuse of identity be fundamental to the underlying crime. This ruling will force lower courts and prosecutors to distinguish between fraud that is about identity (e.g., impersonation) and fraud that merely involves an identity as a ministerial detail.
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