Director, Center for Supreme Court AdvocacyNational Association of Attorneys General
This Report summarizes cases granted review on November 4 and 10, 2022
Case Granted Review: Dubin v. United States, 22-10
Dubin v. United States, 22-10. The federal aggravated identity theft statute 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.” 18 U.S.C. §1028A(a)(1). The question presented is “whether a person commits aggravated identity theft any time he mentions or otherwise recites someone else’s name while committing a predicate offense.” David Dubin was convicted of Medicaid fraud for, among other things, submitting inaccurate reimbursement requests for a particular patient, Patient L. The inaccuracies included overstating Patient L’s provider’s qualifications, which resulted in a higher hourly rate; falsifying the date services were provided to avoid a limit on the amount of reimbursable testing in a 12-month period; and rounding up the number of hours spent. Because Dubin used Patient L’s name in committing this fraud, he was also convicted of aggravated identity theft under §1028A(a)(1). On appeal, Dubin argued that he had not “used” the patient’s name in the sense that the statute required. A panel of the Fifth Circuit, and then the Fifth Circuit en banc, affirmed. 27 F.4th 1021.
The Fifth Circuit panel held: “Consistent with the plain meaning of ‘use’, the statute operates simply as a two-part question to determine criminal conduct: did defendant use a means of identification; and, was that use either ‘without lawful authority’ or beyond the scope of the authority given?” It held the answer was yes to both questions because Dubin used the patient’s name and he was without lawful authority to overbill. En banc, the court embraced the panel’s reasoning and affirmed. Eight of the eighteen judges dissented, however, arguing that Dubin did not commit aggravated identity theft because he “did not lie about Patient L’s identity or make any misrepresentations involving Patient L’s identity. . . . Any forgery alleged in this case relates only to the nature of the services, not to the patient’s identity.” The dissenters argued that the majority had failed to heed the Supreme Court’s repeated warnings not to “assign federal criminal statutes a ‘breathtaking’ scope when a narrower reading is reasonable.’”
Dubin argues that because the falsehoods in the reimbursement requests had nothing to do with the patient’s identity, his actions were not identity theft and cannot fit within this statute. He echoes the Supreme Court’s warning not to give criminal statutes breathtaking scope when a narrower reading is available and its holdings that the word “use” cannot be interpreted mechanically. The Court has held that “use” necessarily “draws meaning from its context,” so courts must look “not only to the word itself, but also to the statute and the sentencing scheme, to determine the meaning Congress intended.” Bailey v. United States, 516 U.S. 137, 143 (1995). He contends that in the context of the full statute, the “use” of another’s identity must be instrumental—not incidental—to the crime. He also asserts that the statutory title, “Aggravated identity theft,” indicates that the statute is only concerned with identity theft—which this case is not. Next, he contends that his conviction is invalid because he had “lawful authority” to use Patient L’s name to bill Medicaid, and the identity-theft statute is not concerned with his subsequent overbilling. Finally, he argues that the Fifth Circuit’s reading should not be followed because its breadth raises due process concerns and defies the rule of lenity.