The US Supreme Court ruled Thursday in Dubin v. United States that in order to constitute aggravated identity theft, the use of a person’s identity must be at the “crux” of what makes the conduct criminal, reversing a lower court decision.
The Court held in favor of the appellant, David Dubin, who was convicted of healthcare fraud for overbilling Medicaid for services provided to a patient. The government also applied a sentence enhancement under 18 U.S.C. § 1028A(a)(1) alleging that Dubin’s misuse of the patient’s Medicaid reimbursement number constituted aggravated identity theft. Previously, the US Court of Appeals for the Fifth Circuit found for the government, holding that anytime an individual uses someone else’s identifying information as part of a predicate crime, even when that individual is authorized to do so, the individual is guilty of aggravated identity theft.
The Court reasoned that the lower court’s interpretation is too broad as it effectively includes anyone who uses a person’s name in tandem with a billing method in an ordinary case of overbilling. The opinion provides analogies including “a lawyer who rounds up her hours from 2.9 to 3 and bills her client electronically” and “a waiter who serves flank steak but charges for filet mignon using an electronic payment method.” The Court claims that applying the interpretation of the statute advanced by the government, these people would be subject to serve at least two years in federal prison. “To say that such a result is implausible would be an understatement,” the opinion reads.
Ultimately, the Court set forth a clearer standard for aggravated identity theft. The opinion states:
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. To be clear, being at the crux of the criminality requires more than a causal relationship, such as “facilitation” of the offense or being a but-for cause of its “success.”
While the decision was unanimous, Justice Gorsuch authored a concurrence to the judgment. In it, he criticized 18 U.S.C. § 1028A(a)(1) for being overly vague and potentially dangerous in future disputes. “The statute fails to provide even rudimentary notice of what it does and does not criminalize,” he wrote. Justice Gorsuch further argued that while the Court did its best to resolve discrepancies in the statute’s interpretation, only Congress can truly settle the confusion by revising the statute to provide a clearer explanation of which instances constitute aggravated identity theft.