Supreme Court Makes Crucial Agg ID Theft Ruling: Dubin

Syllabus: United States vs. Dubin, 22-10

Petitioner David Dubin was convicted of healthcare fraud under 18 U. S. C. 1347 after he overbilled Medicaid for psychological testing performed by the company he helped manage. The question is whether, in defrauding Medicaid, he also committed “[a]ggravated identity theft” under 1028A(a)(1). Section 1028A(a)(1) applies when a defendant, “during and in relation to any [predicate offense, such as healthcare fraud], knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person.” The Government argued below that 1028A(a)(1) was automatically satisfied because Dubin’s fraudulent Medicaid billing included the patient’s Medicaid reimbursement number—a “means of identification.” Bound by Fifth Circuit precedent, the District Court allowed Dubin’s conviction for aggravated identity theft to stand, even though, in the District Court’s view, the crux of the case was fraudulent billing, not identity theft. The Fifth Circuit sitting en banc affirmed in a fractured decision, with five concurring judges acknowledging that under the Government’s reading of 1028A(a)(1), “the elements of [the] offense are not captured or even fairly described by the words ‘identity theft.’ ” 27 F. 4th 1021, 1024 (opinion of Richman, C. J.).

Held: Under 1028A(a)(1), a defendant “uses” 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. Pp. 4–21.

(a) This case turns on the scope of two of 1028A(a)(1)’s elements: Dubin was convicted under 1028A(a)(1) for “us[ing]” a patient’s means of identification “in relation to” healthcare fraud. On the Government’s view, a defendant “uses” a means of identification “in relation to” a predicate offense if the defendant employs that means of identification to facilitate or further the predicate offense in some way.  Section 1028A(a)(1) would thus apply automatically any time a name or other means of identification happens to be part of the payment or billing method used in the commission of a long list of predicate offenses. Dubin’s more targeted reading requires that the use of a means of identification have “a genuine nexus” to the predicate offense. When the underlying crime involves fraud or deceit, as many of 1028A’s predicates do, this entails using a means of identification specifically in a fraudulent or deceitful manner, not as a mere ancillary feature of a payment or billing method. A careful examination of 1028A(a)(1)’s text and structure points to a narrower reading. Pp. 4–5.

(b) The terms “uses” and “in relation to” have been singled out by this Court as being particularly sensitive to context. The “various definitions of ‘use’ imply action and implementation.” Bailey v. United States, 516 U. S. 137, 145. Beyond that general concept, however, “ ‘use’ takes on different meanings depending on context.” Id., at 143. This requires looking “not only to the word itself, but also to the statute and the [surrounding] scheme, to determine the meaning Congress intended.” Ibid. “In relation to” is similarly context sensitive. If extended to its furthest reach, “relate to” would be practically limitless. The phrase clearly refers to a relationship or nexus of some kind, but the nature and strength of this relationship or nexus will be informed by context. Because the presence of two such context-dependent terms renders 1028A(a)(1) doubly attuned to its surroundings, resort to context is especially necessary. Pp. 5–7.

(c) Section 1028A(a)(1)’s title and terms both point toward reading the provision to capture the ordinary understanding of identity theft, where misuse of a means of identification is at the crux of the criminality. Pp. 8–15.

(1) Section 1028A is a focused, standalone provision, and its title—“Aggravated identity theft”—suggests that identity theft is at the core of 1028A(a)(1). A statute’s title has long been considered a “ ‘too[l] available for the resolution of a doubt’ about the meaning of a statute.” Almendarez-Torres v. United States, 523 U. S. 224, 234. Section 1028A’s title is especially valuable here because it does not summarize a list of “complicated and prolific” provisions, Trainmen v. Baltimore & Ohio R. Co., 331 U. S. 519, 528, and also “reinforces what the text’s nouns and verbs independently suggest,” Yates v. United States, 574 U. S. 528, 552 (Alito, J., concurring in judgment). The Court has previously observed the contrast between 1028A’s targeted title and the broad title of neighboring provision 1028: “ ‘Fraud and related activity in connection with identification documents, authentication features, and information.’ ” Flores-Figueroa v. United States, 556 U. S. 646, 655. That “Congress separated the [identity] fraud crime from the [identity] theft crime in” 1028A suggests that 1028A is focused on  identity theft specifically, rather than all fraud involving means of identification. Ibid.

The Government urges the Court to ignore 1028A’s title, because the Government’s reading of the provision bears little resemblance to ordinary understandings of “identity theft.” This broad reading would, in practice, place garden-variety overbilling at the core of 1028A. Instead, “identity theft” has a focused meaning: “[T]he fraudulent appropriation and use of another person’s identifying data or documents,” Webster’s Unabridged Dictionary xi, or “[t]he unlawful taking and use of another person’s identifying information for fraudulent purposes,” Black’s Law Dictionary 894. This understanding of identity theft supports a reading of “in relation to” where use of the means of identification is at the crux of the underlying crime. And under these definitions, identity theft occurs when a defendant “uses” the means of identification itself to defraud others. Further, the inclusion of “aggravated” in 1028A’s title suggests that Congress had in mind a particularly serious form of identity theft, not just all manner of everyday overbilling offenses. Pp. 8–12.

(2) Section 1028A(a)(1)’s language points in the same direction as its title. In particular, Congress used a trio of verbs that reflect an ordinary understanding of identity theft. Section 1028A(a)(1) applies when a defendant “knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person,” “during and in relation to” any predicate offense. (Emphasis added). The two verbs neighboring “uses”—“transfers” and “possesses”—are most naturally read in the context of 1028A(a)(1) to connote not only theft, but ordinary understandings of identity theft in particular, i.e., they point to (1) theft of a (2) means of identification belonging to (3) another person. Because “transfer” and “possess” channel ordinary identity theft, the interpretative cannon noscitur a sociis (“ ‘a word is known by the company it keeps,’ ” McDonnell v. United States, 579 U. S. 550, 568–569) indicates that “uses” should be read in a similar manner. In addition, the Court “assume[s] that Congress used [three] terms because it intended each term to a have a particular, nonsuperfluous meaning.” Bailey, 516 U. S., at 146. On a more targeted reading, 1028A(a)(1)’s three verbs capture the complexity of identity theft, which intermingles aspects of theft and fraud, misappropriation and deceitful use. While “transfer” and “possess” conjure up two steps of theft, “uses” supplies the deceitful use aspect. In contrast, if 1028A(a)(1) is not read in this narrow manner, then the two other verbs risk leaving “uses” without “virtually any function.” Ibid. Pp. 12–15.

(d) The list of 1028A(a)(1)’s predicate offenses creates additional problems for the Government’s broad reading. Section 1028A(a)(1)’s enhancement adds a severe 2-year mandatory prison sentence onto  underlying offenses that do not impose any mandatory prison sentence at all. The Government’s reading, however, does not meaningfully distinguish between the aggravated identity theft crime that Congress singled out for heightened punishment and other crimes. Instead, so long as the criteria for the broad predicate offenses are met, a defendant faces an automatic 2-year sentence for generic overbilling that happens to use names or other means of identification for routine billing and payment. A far more sensible conclusion from the statutory structure is that 1028A(a)(1)’s enhancement targets situations where the means of identification itself is at the crux of the underlying criminality, not just an ancillary billing feature. Pp. 15–17.

(e) In contrast to the staggering breadth of the Government’s reading of 1028A, this Court has “ ‘traditionally exercised restraint in assessing the reach of a federal criminal statute,’ ” Marinello v. United States, 584 U. S. ___, ___, and prudently avoided reading incongruous breadth into opaque language in criminal statutes. See, e.g., Van Buren v. United States, 593 U. S. ___. The vast sweep of the Government’s reading—under which everyday overbilling cases would account for the majority of violations—“underscores the implausibility of the Government’s interpretation.” Id., at ___. While the Government represents that prosecutors will act responsibly in charging defendants under its sweeping reading, this Court “cannot construe a criminal statute on the assumption that the Government will ‘use it responsibly.’ ” McDonnell, 579 U. S., at 576. Pp. 17–19.

27 F. 4th 1021, vacated and remanded.