Dubin v. United States

Under 18 U.S.C. § 1028A(a)(1), a defendant “uses” another person’s means of identification “in relation to” a predicate offense when this use is at the crux of what makes the conduct criminal. [T]he means of identification specifically must be used in a manner that is fraudulent or deceptive.

Petitioner submitted a reimbursement claim to Medicaid that contained false statements about the psychologist’s qualifications, inflated the amount of money charged and changed the date on which the exam occurred. Petitioner was convicted of aggravated identity theft “for ‘us[ing]’ a patient’s means of identification ‘in relation to’ healthcare fraud.” The District Court denied Petitioner’s post-trial challenge to the conviction. The Fifth Circuit Court of Appeals sitting en banc found that Petitioner had committed aggravated identity theft under 18 U.S.C. § 1028A(a)(1), reasoning that when defendants inflate their price for their service, it is aggravated theft. Petitioner argued that “using a means of identification” is required to create “a nexus to the predicate offense.” “A defendant ‘uses’ another person’s means of identification ‘in relation to’ a predicate offense when this use is at the crux of what makes the conduct criminal. [T]he means of identification specifically must be used in a manner that is fraudulent or deceptive.” The Court found that § 1028A(a)(1) is focused on identity theft and not all fraud that deals with “means of identification.” “Means of identification” has to play a key role, not an ancillary one, to satisfy the statute. The Court concluded Petitioner did not use a “means of identification” within the meaning of § 1028A(a)(1) because the use of the patient’s name only played an ancillary role to the overbilling. VACATED AND REMANDED.