Earlier this month, the Supreme Court of the United States decided Dubin v. United States, No. 22-10, 2023 WL 3872518, at *1 (U.S. June 8, 2023), in favor of the defendant. Justice Sonia Sotomayor wrote the opinion for the Court, which held that 18 U.S.C. § 1028A(a)(1), aggravated identity theft, is violated only when the misuse of another person’s means of identification is at the crux of what makes the underlying offense criminal.^[1]

Defendant David Dubin was convicted of healthcare fraud after over-charging Medicaid for teenagers seeking mental health testing at emergency centers in Texas. Dubin falsely claimed the employees performing the testing were licensed psychologists who command a higher rate from Medicaid. However, the employees were only licensed psychological associates. Because the falsified bills also included the patient’s Medicaid reimbursement number, Dubin was also charged with aggravated identity theft, which carries a two-year mandatory minimum consecutive sentence, and he was convicted of this charge as well.

The district court sentenced Dubin for both healthcare fraud and aggravated identity theft, and the Fifth Circuit affirmed the judgment. The Supreme Court granted certiorari to resolve the circuit split between the Fifth Circuit and other Circuits, including the Fourth, Ninth, and Sixth Circuits, which had limited the application of the aggravated identity theft statute.^[2] Specifically, the Supreme Court set out to address whether a person commits aggravated identity theft whenever the person mentions, or includes, someone else’s name while committing a predicate offense.

The government argued that an aggravated identity theft occurred simply because Dubin used his patients’ identities when committing the fraud. On this view, any knowing use of someone else’s identification in the course of the predicate offense constituted an aggravated identity theft. Conversely, Dubin argued that the statute would be implicated in a healthcare fraud case like his where the defendant misrepresented who received a service. In his case, the fraudulent claims related to how or when a service was performed.  Accordingly, Dubin posited that merely including the real patient’s Medicaid reimbursement number on his fraudulent bills was too remote to constitute aggravated identity theft.

The Supreme Court’s opinion placed great emphasis on statutory interpretation. Concluding that the text of the statute called for a narrow interpretation, Justice Sotomayor wrote, “identity theft is committed when a defendant uses the means of identification itself to defraud or deceive.” Dubin, 2023 WL 3872518, at *8. Justice Sotomayor’s opinion emphasized that the use of the identification must be at the crux of the underlying criminal offense. Otherwise, any fraudulent conduct that included other people’s identification could be construed as aggravated identity theft. Justice Sotomayor’s opinion used the canon of construction noscitur a sociis, which posits that ambiguous words can be determined by considering the context and associations of nearby words. After interpreting the statute and considering Dubin’s conduct, the Supreme Court unanimously concluded he did not commit aggravated identity theft.

The broader implications of the Dubin ruling are straightforward. With the Supreme Court’s decision, aggravated identity theft as set forth in 18 U.S.C. § 1028A(a)(1) can apply only when the actual use of the identity is the focus of the criminal activity, and not ancillary to the underlying actions. The decision resolves a circuit split—and is another example this Term of the Supreme Court construing a criminal statute more narrowly than the position advocated by the Department of Justice.

FOOTNOTES

[1] “Whoever, during and in relation to any felony violation enumerated in subsection (c), 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).

[2] Compare United States v. Abdelshafi, 592 F.3d 602, 606-610 (4th Cir. 2010), with United States v. Hong, 938 F.3d 1040, 1051 (9th Cir. 2019), and United States v. Medlock, 792 F.3d 700, 707 (6th Cir. 2015).