On June 8, 2023, the U.S. Supreme Court issued a unanimous opinion in Dubin v. United States, case number 22-10, in which the justices held that the federal aggravated identity theft statute, 18 U.S.C. § 1028A, is only triggered when the defendant’s “use” of another person’s name or other means of identification is “at the crux of what makes the conduct criminal.”
In the opinion authored by Justice Sotomayor, SCOTUS vacated and remanded a divided ruling from the Fifth Circuit en banc, in which a splintered majority had ruled in favor of the prosecution’s argument that the federal aggravated identity theft statute, which makes it a crime to “use, without lawful authority, a means of identification of another person” in the course of certain felonies such as health care fraud, may be applied in situations where a healthcare provider simply uses a patient’s name when submitting a fraudulent Medicare or Medicaid claim.
The defendant, David Dubin, was charged with submitting a fraudulent Medicaid claim for three hours of testing on a patient by a psychologist that was dated after the patient had already been discharged. He was convicted of violating two health care fraud statutes and was sentenced to one year in prison for those crimes, but was also convicted of aggravated identity theft because he “used” the patient’s means of identification. The aggravated identity theft statute carries a mandatory minimum sentence enhancement of two years.
Dubin argued, and SCOTUS agreed, that this was an overbroad reading of the federal aggravated identity theft statute. The Court adopted a narrow construction of the statute, holding that the person’s identification has to play a “key role in the fraudulent activity” rather than a “ancillary” role in the misconduct in order for the statute to apply. In adopting a narrow reading, the Court stripped prosecutors of the ability to use this statute as leverage to extract plea deals from defendants seeking to avoid a significant sentence enhancement.
The attorneys at Chilivis Grubman represent healthcare providers in connection with white collar criminal and civil healthcare fraud litigation. If you need assistance with such a matter, please contact us today.