The aggravated identity theft statute, 18 U.S.C. §1028A, imposes a mandatory two-year sentencing enhancement upon a defendant who “uses” without lawful authority another’s means of identification “during and in relation to” an enumerated predicate felony. Healthcare fraud, mail fraud and wire fraud are some of the enumerated predicate felonies.1 Because “use” can mean many things and most fraud fact patterns involve some use of a person’s means of identification, the Government has taken an expansive view to the application of this statute in fraud cases.For example, in United States v. Abdelshafi, a case out of the Fourth Circuit, the Government charged the defendant with aggravated identity theft in connection with allegedly inflating the distance it took him to transport Medicaid beneficiaries and submitted claims to Medicaid based on the allegedly inflated distance.2 The Government brought this case notwithstanding that its position in the case meant that “every single incident of health care fraud by a provider would also constitute a

esulted in the government paying Dubin "inflated" reimbursement amounts. In committing this crime, Dubin "used" the names and Medicaid identification numbers of various patients on "fraudulent billing sent to Medicaid," but those patients did receive some testing. The question at issue in Dubin was whether by using patient information on fraudulent bills, Dubin committed not just Medicaid fraud, but also aggravated identity theft, in violation of the Aggravated Identity Theft statute at 18 U.S.C. § 1028A.Section 1028ASection 1028A is harsh insofar as it imposes a mandatory two-year sentence on any person who, "during and in relation to any felony violation" enumerated in the statute, "knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person[.]" It is considered a particularly severe penalty because judges must impose the two-year sentence on top of the penalty for the predicate offense, and the sentences must run consecutively. See 18 U.S.C. § 1028A(b).On appeal, Dubin argued that, in convicting him for aggravated identity theft, the government stretched the bounds of Section 1028A too far, and that the statute should not apply when the use of a person's name is merely "incidental" to the crime. Dubin argued the phrase "in relation to" in Section 1028A signals that the "use" of a means of identification must have a "genuine nexus" to the predicate offense, "[t]hat is, the use must at least facilitate – or be instrumental to – the predicate offense." A unanimous Supreme Court agreed.Section 1028A Requires a Genuine Nexus Between Means of Identification and Predicate OffenseThe Court rejected the government's contention that a defendant violates Section 1028A any time he uses a means of identification to "facilitate or further" a predicate offense in some way. Calling the government's interpretation "boundless," the Court noted that under the government's interpretation, a person could commit aggravated identity theft (and be subject

In an extremely consequential decision issued last week, the United States Supreme Court reined in what the Court termed the government’s “boundless interpretation” of the aggravated identity theft statute, 18 U.S.C. § 1028A. Section 1028A provides for a mandatory two-year prison sentence for “any person who, during and in relation to any predicate offense knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person.” The predicate offenses include, among many others, healthcare fraud, wire fraud, and mail fraud.The “Crux” of the DecisionThe government has long charged Section 1028A in cases where the alleged “use” of the means of identification was at most peripheral to the commission of the underlying predicate offense, including where a name or other means of identification just happens to be part of the payment or billing method used in the commission of the offense. That “exceedingly broad” interpretation has given the government enormous leverage in garden variety fraud cases that would never be thought of as involving identity theft in any colloquial use of the term. In Dubin v. United States, the Court rejected the government’s interpretation, hold

In a follow-up memorandum, Deputy Attorney General Jeffrey Rosen highlighted a variety of reported schemes emerging from the pandemic and emphasized several tools currently available to federal prosecutors to deal decisively with the alleged criminal schemes.A Closer Look at the Aggravated Identity Theft StatuteOne such tool is the federal aggravated identity theft statute, 18 U.S.C. § 1028A, established through the enactment of the Identity Theft Penalty Enhancement Act (ITPEA) in July 2004. According to the Act's legislative history, Congress was frustrated that "many identity thieves receive short terms of imprisonment or probation" and "after their release, many of these thieves will go on to use false identities to commit much more serious crimes."

The District Court denied Mr. Dubin’s post-conviction challenge based on binding Fifth Circuit precedent that held that the use of a name and identifier number in healthcare fraud constituted aggravated identity theft, but noted that it “hope[d]’ it would “get reversed” because this was an overbilling case that didn’t “seem to be an aggravated identity theft case.”2 Mr. Dubin appealed his conviction to the Fifth Circuit, where the panel affirmed the District Court’s finding.3 The Fifth Circuit took the case en banc and in a closely divided opinion affirmed the panel’s decision, with ten judges voting in favor of affirming and eight judges voting in favor of reversal. The Firth Circuit’s en banc decision conflicted with decisions of the First, Sixth, Seventh, Ninth, and Eleventh Circuits as to how to interpret the aggravated identity theft statute.4 The Supreme Court granted certiorari to resolve the circuit split: it examined whether Mr. Dubin committed aggravated identity theft under 18 U.S.C. § 1028A(a)(1).The aggravated identity statute makes it unlawful for a person to (1) knowingly (2) transfer, possess, or use (3) a means of identification (4) of another person (5) without lawful authority (6) in relation to (7) a predicate felony.5 The statute enumerates predicate felonies, which all involve fraud or deception, such as offenses involving false statements, wire fraud, bank fraud, offenses related to nationality and citizenship, and offenses related to immigration.6 The statute carries a mandatory minimum sentence of two years of incarceration that must be imposed consecutively to any predicate felony.On June 8, 2023, the Court issued its opinion in Dubin v. United States, No. 22-10, 599 U.S. __ (2023), ruling that Mr. Dubin did not commit aggravated identity theft, because he did not “use” a means of identification “in relation to” the underlying healthcare fraud offense.7 Mr. Dubin’s “fraud was in misrepresenting how and when services were provided to a patient, not who received th

The U.S. Supreme Court recently struck another blow against overcriminalization of federal criminal statutes, i.e., the application of criminal provisions in specific laws in ways that Congress never intended. The court’s unanimous decision in United States v. Dubin continued its trend of rejecting federal prosecutors’ application of criminal statutes in broad and even counter-intuitive ways.[1]This time, the Court rejected the government’s proposed reading of 18 U.S.C. § 1028A, a statute entitled “Aggravated identify theft.” The law imposes a mandatory sentence of two consecutive years of incarceration when a defendant “uses, without lawful authority, a means of identification of another person” during the commission of a number of predicate offenses.What Happened: United States v. Dubin at a GlanceDavid Dubin was convicted of healthcare fraud for Medicaid overbilling. This scheme necessarily included a patient’s Medicaid reimbursement number – a “means of identification” – in billing. As a result, the government also charged Dubin with aggravated identity theft, arguing that the statute was “automatically” satisfied by the presence of this number. The district court said that this didn’t “seem to be an aggravated identity theft case” and hoped it would “get reversed,” but it was obligated to follow circuit precedent defining the scope of aggravated identify theft broadly, to encompass circumstances including the incidental presence of identifying informati

[co-author: Gradon Cowan*]On June 8, 2023, the Supreme Court issued a unanimous decision holding that the aggravated identity theft statute –and its mandatory minimum of two years – is not triggered merely because someone else’s identification facilitates or furthers the offense in some way. See Dubin v. United States. We have seen a growing trend of the government adding aggravated identity theft in healthcare fraud cases. As a result of this decision, we may see that statute far less.BackgroundUnder 18 U.S.C. §1028A(a)(1), a defendant commits aggravated identity theft when, “during and in relation to any [predicate offense], knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person.” Persons convicted under section 1028A(a)(1) face a mandatory minimum sentence of two years in prison.In Dubin, petitioner was responsible for submitting a fraudulent Medicaid reimbursement claim that overstated the qualifications of the employee who performed psychologic testing. In order to submit the claim, petitioner included the patient’s Medicaid reimbursement number. The government argued that use of the patient’s Medicaid number triggered the aggravated identity theft statute.In our experience as former federal prosecutors, we know that the government often adds this mandatory minimum in fraud cases, such as healthcare fraud, in order to induce pleas. In other words, we believe the government often charges aggravated identity theft because the government knows def

ablished a meaningful constraint on proportionality, at least on the facts of this particular case. Thus, while handing a significant victory to voting rights advocates who feared that the Court would put Section 2 on life support, it may not result in turning off the spigot of Section 2 challenges to congressional redistrictings in the states. Alabama now must go back to the drawing board.By the way, to those of you who might ask what the court of appeals, not just the district court, had to say about this, recall that the Voting Rights Act provides for direct appeals from the district court to the Supreme Court.Less generally noteworthy, but important to those who defend health care fraud cases and their clients, is the Court’s unanimous holding inDubin v. United Statesthat a person convicted of health care fraud under 18 U. S. C. §1347 after he overbilled Medicaid for psychological testing performed by the company he helped manage also can commit “[a]ggravated identity theft” under 18 U.S.C. §1028A(a)(1), but that he didn’t do so here. Section 1028A(a)(1) applies when a defendant, “during and in relation to any [predicate offense, such as health care fraud], knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person.” The government argued that §1028A(a)(1) was automatically satisfied because David Dubin’s fraudulent Medicaid billing included the patient’s Medicaid reimbursement number—a “means of identification.” In an opinion written by Justice Sotomayor (Justice Gorsuch concurring), the Justices rejected the government’s broad categorical assertion because the application of the term “used” is highly situational and can’t possibly require a finding of identity theft in every case of overbilling. Instead, the Court held, under §1028A(a)(1), a conviction must be predicated on a defendant using another person’s means of identification “in relation to” a predicate offense when the use is at the crux of what makes the conduct criminal.

The Second Circuit Rejects Wedd’s Construction of the Aggravated Identity Theft StatuteAn individual is guilty of aggravated identity theft when he or she, “during and in relation to” certain predicate offenses, “knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person.” 18 U.S.C. § 1028A(a)(1). Wedd argued, in both an unsuccessful motion for a judgment of acquittal and on appeal, that the term “use[]” in the statute requires some effort at impersonation.

Today, the Supreme Court agreed to decide this issue:Whether an individual who used a false means of identification but did not know it belonged to another person can be convicted of “aggravated identity theft” under 18 U.S.C. 1028A(a)(1).The case involves an illegal alien who was prosecuted for use of false identity papers. It must be hard enough to be arrested as an illegal alien, but much worse to discovery that your punishment will not be deportation, but rather indictment and trial for aggravated identity theft, a felony punishable with two years imprisonment with no probation allowed.