# Dubin v. United States

Note: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
DUBIN v. UNITED STATES CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 22–10. Argued February 27, 2023—Decided June 8, 2023
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.
(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.
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.
(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.
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