Issues
If a criminal defendant uses someone else’s name while committing a criminal offense, can they also be charged with identity fraud?
This case asks the Supreme Court to determine whether a criminal defendant who uses someone else’s name while committing a criminal offense can also be charged with identity fraud. Petitioner David Dubin, an employee at a psychological evaluations services company, used the name of a patient on a form he filled out while committing healthcare fraud. Respondent, the United States, charged him with committing aggravated identity theft under 18 U.S.C. § 1028A(a)(1). The circuits have split over how to interpret 18 U.S.C. § 1028A(a)(1), specifically when defendants should be charged with identity fraud while committing an underlying offense. This circuit split has created tension over how broadly or narrowly the statute should be read in light of its language, the surrounding context, and congressional intent. The decision could impact the level of discretion that prosecutors enjoy when prosecuting claims under § 1028 and the extent of due process rights for criminal defendants in such cases.
Questions as Framed for the Court by the Parties
Whether a person commits aggravated identity theft any time they mention or otherwise recite someone else’s name while committing a predicate offense.
Facts
Petitioner David Dubin worked for Psychological A.R.T.S., P.C. (“PARTS”), a psychological services company that provided mental health testing services to people at emergency shelters in Texas. United States v. Dubin at 321. Williams House, an emergency youth shelter, engaged PARTS to perform testing services. Id. PARTS and Williams House agreed that PARTS would determine whether shelter residents were Medicaid-eligible. Id. If PARTS found the patients eligible, PARTS would file Medicaid reimbursement claims for treating them; if not, Williams House would pay PARTS directly for the services. Brief for Petitioner at 6.
In April 2013, Williams House asked PARTS to conduct psychological testing of some people residing at its facility, including “Patient L.” Brief for Respondent, United States at 2. PARTS sent a licensed psychological associate to do the testing. United States v. Dubin at 1037. The associate completed the testing but did not complete a clinical interview. Id.
Medicaid would only reimburse PARTS for one test per patient every twelve months. Id. at 1037. In this context, Dubin instructed the psychological associate to wait before billing Medicaid for Patient L’s April 2013 testing, so that a full twelve months would have elapsed from the time of his previous test. Id. In May 2013, shortly after the twelve-month mark passed, PARTS filed a claim with Medicaid that included Patient L’s name and Medicaid ID number. Id. at 1037–38.
Respondent, the United States, charged Dubin with healthcare fraud and conspiracy to commit healthcare fraud under 18 U.S.C. §§ 1347 and 1349. Id. at 1037. The United States alleged that the Medicaid claim form submitted by PARTS contained several falsehoods: (1) the claim stated that a licensed psychologist, instead of a licensed psychological associate, performed the testing; (2) the claim stated that PARTS performed the testing on May 30th, 2013, instead of in April 2013; (3) the claim inflated the total number of hours that PARTS spent conducting tests; and (4) the claim improperly billed for an incompletely performed evaluation, as Patient L did not receive a clinical interview and Williams House never received a report. Id. at 1026, 1037. Dubin overbilled Medicaid by approximately $101. Brief of Petitioner at 7.
The United States also charged Dubin with aggravated identity theft under 18 U.S.C. § 1028A. United States v. Dubin at 1021. After a jury trial in the United States District Court for the Western District of Texas, Dubin was convicted on one count of healthcare fraud, one count of conspiring to commit healthcare fraud, and one count of “using a means of identification of another during and in relation to a predicate felony.” Brief for Respondent at 2.
After the verdict, Dubin moved for judgment of acquittal on the aggravated identity theft conviction. United States v. Dubin at 1038. The district court denied Dubin’s motion. Id.
Dubin received a sentence of one year and a day imprisonment for his healthcare fraud convictions, and the court ordered Dubin to forfeit PARTS’s ill-gotten gains and pay restitution to the United States. United States v. Dubin at 323; Brief for Petitioner at 9. Additionally, for the aggravated identity theft charge the district court sentenced Dubin to two years’ imprisonment to run consecutively to his other sentence. Id.
Dubin appealed this decision, and a panel of the United States Court of Appeals for the Fifth Circuit affirmed the district court. United States v. Dubin at 321. Rehearing en banc, the Fifth Circuit again affirmed, adopting the reasoning of the panel majority. United States v. Dubin at 1021.
The Supreme Court granted Dubin’s petition for certiorari on November 10, 2022. Brief for Respondent at 1.
Analysis
TENSION OVER A NARROW OR BROAD READING OF THE STATUTE
Dubin contends that he does not fall under the statutory authority of 18 U.S.C. § 1028A(a)(1), the aggravated identity theft statute, because he did not commit aggravated identity fraud under the appropriate statutory reading of “uses.” Brief for Petitioner, David Dubin at 19. Dubin claims that the term “use” is difficult to define and must be read in relation to the language of the statute; specifically, “during and in relation to” the underlying fraudulent activity. Id. Dubin therefore argues for a narrow reading of what qualifies as aggravated identity theft under the statute, where personal information must be used by a defendant to perpetuate the “predicate offense.” Id. at 20. Dubin maintains that the personal information used “must be instrumental—not merely incidental—to the predicate offense.” Id. Dubin asserts the standard under the statute is not a “but for” standard, but rather a much narrower nexus requirement between the identity theft and the underlying fraud. Id. at 22–23. As a result, Dubin posits that the statutory language does not encompass fraudulent billing claims for “how or when” services were provided. Id. at 15. Additionally, Dubin claims that the statutory wording of “lawful authority” to use the identity must be read narrowly. Id. at 26–27. Dubin argues that he was allowed to use the identity of the patient lawfully to submit prior Medicaid claims, so he did not act without lawful authority. Id. Dubin contends that in order to commit aggravated identity theft, he must have billed for unrelated services. Id. at 23–26. Dubin emphasizes that the statute must be read narrowly, because the intent of the statute was to only create additional penalties for those using stolen identities in the perpetration of a predicate offense. Id. at 30.
The United States counters that Dubin does fall under the statutory authority of 18 U.S.C. § 1028A(a)(1). Brief for Respondent, United States at 10. The United States asserts that according to ordinary language of the term “use,” Dubin used fraudulent identification without legal authority, “in relation to” his fraudulent offenses. Id. The United States argues that in this case he was perpetrating healthcare fraud, and it would have been impossible for him to perpetuate the predicate felony without Patient L’s means of identification. Id. at 10–13. The United States contends that their reading of the statute is not so broad as to lose all meaning, as the statute is limited to using identification while a crime is being perpetrated. Id. at 14. Additionally, the United States claims that the wording of the statute, “in relation to,” limits the scope of the statute to crimes that can be related to using the identity of another. Id. The United States also argues that Dubin did not have “lawful authority” to use the identification in the manner in which he used it: billing for false services for a patient who was no longer at the facility, in violation of the law. Id. at 16–17. The United States posits that the statute needs to be read sufficiently broadly to include defendants like Dubin, who had access to identity information legally, and then used that information to make false claims about “how or when a service was performed.” Id. at 18–20. The United States maintains this is what was intended by Congress when the statute was written. Id. at 27.
CIRCUIT SPLIT OVER STATUTORY INTERPRETATION
Dubin contends that there is a circuit split over how to appropriately interpret 18 U.S.C. § 1028A(a)(1) and that the Fifth Circuit’s reading of the statute in Dubin’s case is contrary to the legal interpretation by the majority of the circuits. Reply Brief for Petitioner, David Dubin at 6. Dubin argues that the facts of his case, where he engaged in fraudulent billing for psychological services, are similar to the facts of United States v. Medlock, a Sixth Circuit case where the defendants falsely claimed patients were transported on stretchers. Id. at 2. In Medlock, the Sixth Circuit found that there was no aggravated identity theft. Id. Dubin additionally asserts that as his fraud was overbilling, the Fifth Circuit should have interpreted § 1028A(a)(1) like the First Circuit did in United States v. Berroa. Id. at 3. In Berroa, the First Circuit found no aggravated identity fraud when the defendants wrote prescriptions with fraudulent medical licenses, because the court defined the “use” of the identity in the context of an “action on another person’s behalf.” Id. Dubin contends the facts of his case should not be seen as similar to a later First Circuit case, United States v. Tull-Abreu. Id. In Tull-Abreu, the First Circuit found the defendant guilty of aggravated identity fraud, relying on the fact that the defendant used someone else’s identity to bill “for wholly fictitious services.” Id. at 3–4. Dubin argues his case can be distinguished by the fact that he overbilled for actual, and not fictitious, services. Id. Further, Dubin maintains that the facts of his case parallel the Ninth Circuit case United States v. Hong, where the court concluded that the defendants lying about the services rendered to Medicaid did not meet the standard of identity fraud, because the identity itself did not help perpetrate the fraud. Id.
The United States contends that there is no circuit split and asserts that Dubin would not have received appellate relief in other circuits outside of the Fifth Circuit. Brief of Respondent in Opposition, United States at 12. The United States claims that there is no conflict with the Sixth Circuit’s decision in Medlock, because in Medlock the defendants fraudulently lied about their own eligibility to receive Medicaid reimbursement. Id. Conversely, the United States argues that Dubin’s fraud was based on the claim of false psychological services being provided for a patient, which made the fraud dependent on using the identity of a third party. Id. The United States additionally maintains that the Berroa standard was modified by the First Circuit in Tull-Abreu. Id. at 12–13. The United States maintains that Tull-Abreu broadened the scope of the term “use” to include fraudulently filling out a form with another person’s identifying information, as it involved taking action on the part of another individual. Id. at 13. Finally, the United States also posits that there is no tension over interpretation between the Fifth Circuit and the Ninth Circuit due to the Hong case, as later Ninth Circuit cases broadened the scope of the term “use” to cases where identity fraud was perpetrated without assuming the identity of another. Id. The United States contends that this resulted in an “intra-circuit conflict” between Hong and subsequent cases. Id.
CONSTITUTIONAL VAGUENESS AND DUE PROCESS CONCERNS
Dubin contends that the tension over statutory interpretation has created a possibility of constitutional vagueness. Brief for Petitioner at 37. Dubin points to the Supreme Court precedent of Clark v. Martinez, which finds that when there is a question over “plausible statutory constructions,” the statute should always be read narrowly so as to bypass any constitutional vagueness concerns. Id. Dubin asserts that two constitutional due process concerns are raised by interpreting 18 U.S.C. § 1028A(a)(1) broadly. Id. at 37–38. Dubin claims that a broad reading of the statute undermines due process by allowing “arbitrary and discriminatory” application of the statute to other cases. Id. at 38. Dubin also raises the constitutional concern that a broad reading of the statute would be sufficiently ambiguous so as to not give notice to concerned parties, undermining due process. Id.
The United States responds by stating that there is no concern about constitutional vagueness, as the language of the statute does not lend itself to multiple interpretations. Brief for Respondent at 34–35. The United States posits that just because it is complicated to conclude when someone is guilty of aggravated identity theft under the statute, does not mean a constitutional concern is then raised. Id. at 35. The United States maintains that this statute does not raise doubt to such an extent that the statute should be voided for constitutional vagueness. Id.
Discussion
OVERCRIMINALIZATION AND THE EXTENT OF PROSECUTORIAL POWER
Dubin argues that under the Fifth Circuit’s interpretation of 18 U.S.C. § 1028A(a)(1), prosecutors would wield “unbridled authority” to threaten defendants with a higher prison sentence than the predicate crime. Brief of Petitioner, David Dubin at 38–39. Dubin suggests that this would effectively coerce many defendants in such situations to make deals and plead guilty to underlying crimes just to avoid the chance of a more severe punishment. Id. Moreover, Dubin argues that relying on prosecutorial discretion to prevent overreach with § 1028A is not enough, because the Court cannot reasonably assume that the government will use a particular statutory interpretation responsibly. Id. at 39. Similarly, the National Association of Criminal Defense Lawyers (“NACDL”) in support of Dubin, contends that this case presents a potential threat of prosecutorial overreach because prosecutors can effectively choose their own interpretations to exploit the statute at issue. Brief Amici Curiae National Association of Criminal Defense Lawyers, in Support of Petitioner at 7. The NACDL also asserts that the improper use of prosecutorial discretion, if supported or approved by the courts, contributes to a trend of “overcriminalization” characterized by the expansion of federal criminal law beyond what legal precedent would indicate. Id.
The United States counters that prosecutors do not decide the meaning of the law for themselves here, but instead are constrained by the specific words and phrases that Congress chose to use in § 1028A(a)(1). Brief for Respondent, United States at 14–15. According to the United States, a phrase like “in relation to” in § 1028A should alleviate any concern that the Government might prosecute someone for committing a totally unrelated crime to identity theft while coincidentally using someone else’s means of identification. Id. at 14. The United States illustrates the limitations of prosecutorial authority under § 1028A by positing that a hypothetical defendant who only writes someone’s name on an envelope while committing mail fraud would not fall within the scope of § 1028A. Id. at 32.
ADEQUATE NOTICE TO CRIMINAL DEFENDANTS
Professor Joel S. Johnson, in support of Dubin, argues that the Fifth Circuit’s decision about the application of § 1028A in this case undermines a criminal defendant’s due process rights because it fails to provide them with adequate notice. Brief of Amicus Curiae Professor Joel S. Johnson, in Support of Petitioner at 15. The National Association of Federal Defenders (“NAFD”), in support of Dubin, also suggests that the United States’ broad interpretation of allegedly vague language in § 1028A(a)(1) is susceptible to “outlandish” theories of liability that ultimately leave defendants without notice of the scope of the law. Brief of Amici Curiae National Association of Federal Defenders, in Support of Petitioner at 18. Thus, NAFD contends that if citizens or would-be defendants are unable to know at what point their actions would break a certain law, yet the government insists that they have broken that law, then their rights to due process have been violated. Id.
According to the United States, the specific language of § 1028A provides potential defendants with all the notice they would need. Brief for Respondent at 35. The United States argues that a dictionary definition of “identity theft,” available for anyone to look up, matches the way that the Fifth Circuit applied this term, and so defendants’ contention that the meaning is vague, ambiguous, or otherwise confusing is wrong. Id. at 23. Thus, the United States suggests that would-be defendants can read the statutory language at issue and understand its plain meaning, and in so doing receive adequate notice of the scope of the law. Id. at 34–35. In sum, the United States does not recognize any policy concerns for the potential violation of a criminal defendant’s due process rights in this case. Id.
Conclusion
Acknowledgments
The authors would like to thank Professor Stephen P. Garvey for his insights into this case.
Additional Resources
- Charles Doyle, What is Aggravated Identity Theft, Congressional Research Service, (Dec. 20, 2022).
- Kimberly Strawbridge Robinson, Supreme Court to Consider Narrowing the Scope of Identity Fraud, Bloomberg Law, (Nov. 10, 2022).