Supreme Court Restricts The Scope Of The Aggravated Identity Fraud Statute

• Published date: 05 July 2023
• Subject Matter: Food, Drugs, Healthcare, Life Sciences, Criminal Law, Privacy, Data Protection, White Collar Crime, Anti-Corruption & Fraud
• Law Firm: Squire Patton Boggs LLP
• Author: Mr Colin Jennings, Marisa Darden, Jay M. Thomas and Ally Rich

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...