Page:Dubin v. United States.pdf/30

Rh the sorts of problems that invariably arise in even simple §1028A(a)(1) cases involving bogus restaurant bills. Other contexts can present still greater complications and still deeper uncertainties. The problem we face, then, is not that §1028A(a)(1) presents some hard cases at its edges; the problem is this statute has no easy cases. Really, you could spend a whole day cooking up scenarios—ranging from the mundane to the fanciful—that collapse even your most basic intuitions about what §1028A(a)(1) does and does not criminalize. Try making up some of your own and running them by a friend or family member. You may be surprised at how sharply instincts diverge.

For the less adventurous, consider just the facts of the case now before us. On one framing, it seems outrageous to convict Mr. Dubin of aggravated identity theft. After all, the patient did (at one point) receive psychological testing. So you might say, as the Court does, that Mr. Dubin lied only about the qualifications of the individual who provided those services and the date on which they occurred. See,. But on another framing, the patient’s identity was “a key mover,” perhaps even “at the crux,” of the fraud. Mr. Dubin could not have successfully billed the insurance provider without accurately offering up some specific patient’s name and information. Nor, as the United States notes, could Mr. Dubin have simply drawn a random name from a hat. Rather, his fraud depended on purloining the specific identity of a “Texas Medicaid enrollee who had at least three hours of psychological-testing reimbursement left in his or her account.” Brief for United States 13. Along the way, Mr. Dubin’s fraud directly harmed the patient by depriving him of his annual eligibility for otherwise-compensable psychological services. From the patient’s perspective, Mr. Dubin’s use of his “means of identification” could hardly feel “ancillary.” Ante, at 1–2.

As an abstract exercise, debating fact patterns like these may seem good fun. But there is nothing entertaining