Supreme Court Decides Dubin v. United States

On June 8, 2023, the U.S. Supreme Court decided Dubin v. United States, No. 22-10, holding § 1028A(a)(1), aggravated identity theft, is violated when the defendant’s misuse of another person’s means of identification is at the crux of what makes the underlying offense criminal, rather than merely an ancillary feature of the predicate charge.

David Dubin was charged with health care fraud for submitting a claim for reimbursement to Medicaid for psychological testing by a licensed psychologist, even though the employee who performed the testing was only a licensed psychological associate. This falsehood inflated the amount of reimbursement from Medicaid by $338. In addition, the Government also charged him with aggravated identity theft under § 1028A(a)(1) because the fraudulent billing to Medicaid included the patient’s Medicaid reimbursement number. The parties disputed whether the petitioner’s underlying crime satisfied § 1028A(1)(1)’s enhancement for “us[ing]” a patient’s means of identification “in relation to” health care fraud. The district court convicted the petitioner of both health care fraud and aggravated identity theft. A Fifth Court panel affirmed, and the decision was affirmed again by a fractured en banc court. The Supreme Court granted certiorari to resolve the split between the Fifth Circuit and many other lower courts who had applied a more restrained reading of the aggravated identity theft issue.

The Supreme Court applied many statutory interpretation principles to find that “uses” and “in relation to” should be given a narrower reading in the context of § 1028A(a)(1).

The Court acknowledged that the terms “uses” and “in relation to” are “particularly sensitive to context,” and both parties’ competing readings fell within the range of meanings of “uses” and “in relation to,” standing alone. Therefore, the Court first turned to the statute’s title: aggravated identity theft. This statutory title has a focused meaning, which supported that the statutory text would relate to offenses built around what the defendant does with the means of identification. Next, the Court employed the interpretative canon that “a word is known by the company it keeps.” Here, the word “uses” was joined by neighboring verbs “transfers” and “possesses,” which both channeled ordinary identity theft. Moreover, the Court noted that the trio of verbs should be interpreted so that each verb has a particular, nonsuperfluous meaning. A narrower interpretation to “use” permitted the term to supply the deceitful-use aspect of identity theft.

Finally, the Court emphasized that § 1028A(a)(1)’s enhancement should be interpreted to target situations where the means of identification itself played a key role to warrant a 2-year mandatory minimum sentence. The Court rejected imposing a broad reading that “would sweep in the hour-inflating lawyer, the steak-switching waiter, [and] the building contractor who tacks an extra $10 onto the price of the paint he purchased” into an enhancement that would result in a mandatory two years in federal prison. It refused to construe the criminal statute broadly under the assumption that the Government would use it responsibly. In this case, the petitioner’s use of the patient’s name was not what made the underlying overbilling fraudulent. Therefore, his conviction under § 1028A(a)(1) was vacated.

Justice Sotomayor delivered the opinion of the Court, in which Chief Justice Roberts and Justices Thomas, Alito, Kagan, Kavanaugh, Barrett, and Jackson joined. Justice Gorsuch filed an opinion concurring in the judgment.