Page:Dubin v. United States.pdf/6

2 the patient’s means of identification was an ancillary part of the Medicaid billing process.

David Dubin helped his father manage a psychological services company. This company submitted a claim for reimbursement to Medicaid for psychological testing by a licensed psychologist. In fact, however, the claim overstated the qualifications of the employee who actually performed the testing and who was only a licensed psychological associate. This falsehood inflated the amount of reimbursement. Petitioner also changed the date on which the examination occurred. Even with the inflation, the total reimbursement was only $338. App. 49. Petitioner was accordingly charged with healthcare fraud, a federal offense under 18 U. S. C. §1347. According to the Government, however, petitioner’s conduct also constituted “[a]ggravated identity theft” under §1028A(a)(1).

Section 1028A(a)(1) applies when a defendant, “during and in relation to any [predicate offense], knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person.” The predicate offenses include, among many others, healthcare fraud. §1028A(c)(4). Section 1028A(a)(1) carries a severe penalty: a mandatory minimum sentence of two years in prison “in addition to the punishment” for the predicate offense.

According to the Government, this is a clear aggravated identity theft case. The Government argued at trial that §1028A(a)(1) was automatically satisfied because petitioner’s fraudulent billing included the patient’s Medicaid reimbursement number (a “means of identification”). The District Court was less sure. “[T]his doesn’t seem to be an aggravated identity theft case” the court explained, as “the