Background

• David Dubin managed a psychological-services company that submitted Medicaid claims overstating the provider’s qualifications (and altering the date) to obtain higher reimbursement for testing; the total overpayment was small (~$338).
• Dubin was convicted of healthcare fraud (18 U.S.C. §1347) and of aggravated identity theft under 18 U.S.C. §1028A(a)(1), which imposes a mandatory consecutive 2‑year sentence when a defendant "during and in relation to" a listed predicate offense "knowingly transfers, possesses, or uses" another person's means of identification without lawful authority.
• The Government relied on the patient’s Medicaid reimbursement number appearing on the claim, arguing that any use of another’s identifying information that facilitates a predicate offense satisfies §1028A(a)(1).
• The District Court (bound by Fifth Circuit precedent) and the Fifth Circuit en banc affirmed the aggravated-identity-theft conviction; commentators and some judges acknowledged that the Government’s reading would vastly expand the statute’s reach.
• The Supreme Court granted certiorari and held that §1028A(a)(1) applies only when the defendant’s use of another’s means of identification is at the crux of what makes the underlying offense criminal (i.e., the means of identification is used fraudulently/deceptively to misrepresent who is involved), not when it is merely an ancillary billing/payment detail.
• Applying that rule, the Court vacated the Fifth Circuit’s judgment and remanded because Dubin’s fraud turned on misrepresenting qualifications and timing, not on deceptive use of the patient’s identity itself.

Issues

Key Cases Cited

• Bailey v. United States, 516 U.S. 137 (1995) ("use" is context-dependent and implies action/implementation)
• Smith v. United States, 508 U.S. 223 (1993) (phrase "in relation to" requires some purpose or effect between two things)
• Jones v. United States, 529 U.S. 848 (2000) (distinguishing active/central uses from passive/ancillary uses in statutory context)
• Flores-Figueroa v. United States, 556 U.S. 646 (2009) (reading §1028A in the statutory scheme and requiring that a means of identification belong to another person)
• Leocal v. Ashcroft, 543 U.S. 1 (2004) (context shapes meaning of statutory terms)
• McDonnell v. United States, 579 U.S. 550 (2016) (nosciutur a sociis canon and reading words in company they keep)
• Yates v. United States, 574 U.S. 528 (2015) (useful canonic role of titles and textual limits on overbroad readings)
• Carachuri-Rosendo v. Holder, 560 U.S. 563 (2010) (ordinary meaning of "aggravated" and caution against surprising penal consequences)
• Robers v. United States, 572 U.S. 639 (2014) (proximate-cause style limits in criminal statutes)
• United States v. Spears, 729 F.3d 753 (7th Cir. 2013) (example of expansive prosecutions under §1028A)
• United States v. Berroa, 856 F.3d 141 (1st Cir. 2017) (circuit prosecution involving prescriptions)
• United States v. Medlock, 792 F.3d 700 (6th Cir. 2015) (ambulance reimbursement case cited as expansive application)
• United States v. Michael, 882 F.3d 624 (6th Cir. 2018) (distinguishing identity-centered fraud from fraud about how/when services were provided)
• United States v. Hong, 938 F.3d 1040 (9th Cir. 2019) (billing massage as Medicare-eligible therapy as an example considered under §1028A)