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In Dubin v. United States, the Supreme Court gave a narrowing construction to a federal statute, 18 U.S.C. § 1028A.  This statute provides that whomever, “during and in relation to any [predicate offense], knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person” is a guilty of a crime.  Dubin was convicted of healthcare fraud for overbilling Medicaid by making a fraudulent submission in which he provided the patient’s Medicaid reimbursement number.  Taking the position that this number was a “means of identification” that was used without lawful authority, the government tried and convicted Dubin not only for healthcare fraud but for a violation of Section 1028A, which is meant by its title to punish “aggravated identity theft.”  In an opinion by Justice Sotomayor, the Supreme Court reversed the conviction, explaining that the statute only applies where misuse of a means of identification is “at the crux of the fraud.”  Otherwise, any time a person wrote a patient’s name or a reimbursement number on a fraudulent Medicaid or Medicare submission, the person would have committed this crime.  Or a person would commit this crime by facilitating mail fraud by using a person’s name to address a letter to them.  As the Court explained toward the end of its opinion, “crimes are supposed to be defined by the legislature, not by clever prosecutors riffing on equivocal language.”  (Slip op. at 21).  “From text to context, from content to common sense, Section 1028A(a)(1) is not amenable to the Government’s attempt to push the statutory envelope” (Slip Op. 23).  In a concurrence, Justice Gorsuch would have gone further and declared the entire statute void for vagueness.

To continue reading Harry Sandick's article in NYU Law's Compliance & Enforcement Blog, please click here.

 

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