Fifth Circuit Addresses Scope of “Use” Under Federal Identity Theft Statute

You may have forgotten that there is a federal criminal identity theft statute, 18 U.S.C. § 1028A, which says:

Whoever, during and in relation to any felony violation enumerated in subsection (c), knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person shall, in addition to the punishment provided for such felony, be sentenced to a term of imprisonment of 2 years.

Section 1028A is not frequently invoked, but it was addressed in a decision earlier this month by the Fifth Circuit, United States v. Dubin. This appeal was by William Joseph Dubin and David Fox Dubin, who were convicted on charges arising from a scheme to defraud Texas’ Medicaid program. On appeal, they raised several issues, including an issue of first impression for the Fifth Circuit:  whether David Dubin’s fraudulently billing Medicaid for services not rendered constitutes an illegal “use” of “a means of identification of another person”, in violation of 18 U.S.C. § 1028A.

Section 1028A operates simply as a two-part question to determine criminal conduct: (1) did defendant use a means of identification; and (2) was that use either “without lawful authority” or beyond the scope of the authority given? See United States v. Mahmood, 820 F.3d 177, 187-90 (5th Cir. 2016) (“the statute plainly applies to circumstances like these, where [defendant] gained access to his patients’ identifying information lawfully, but then proceeded to use that information unlawfully and in excess of his patients’ permission”).

In this case, a patient’s means of identification—the patient’s Medicaid reimbursement number—was employed by David Dubin in improper reimbursement submissions to Medicaid. Based upon the records provided to Medicaid for reimbursement, David Dubin asserted that the patient received services that the patient did not actually receive. The Fifth Circuit concluded that David Dubin “use[d]” the patient’s means of identification when Dubin undertook affirmative acts in the healthcare fraud, such as his submission for reimbursement of the patient’s incomplete testing. Given that David Dubin did not dispute that he had no lawful authority to submit these tests for reimbursement, the court concluded that David Dubin unlawfully “use[d]” the patient’s means of identification “without lawful authority” under § 1028A.

Given the breadth of this definition, claims of identity theft may become more common in federal health care fraud prosecutions.


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