Brief filed: 04/19/2021
United States v. Dubin
5th Circuit Court of Appeals; Case No. 19-50912
Panel decision 982 F.3d 318 (5th Cir. Dec. 4, 2021)
The Fifth Circuit panel’s interpretation of 18 U.S.C. § 1028A, the aggravated identity theft statute, expands the bounds of the statute beyond what Congress intended. The interpretation is a result of the overcriminalization of the statute and prosecutorial overreach, and if upheld, threatens to transform the statute to include run-of-the-mill fraudsters, “stray[ing] far afield from the conduct targeted by Congress” under the statute. United States. v. Berroa, 856 F.3d 141, 156 (1st Cir. 2017). The panel construed the statute to encompass a healthcare provider manager’s use of a patient’s information to bill Medicaid for services that were provided to that patient but misrepresented during the billing process. Such an interpretation—which criminalizes conduct beyond real, classic identity theft (i.e., impersonating someone or stealing his identity)—is at odds with the legislative purpose to punish identity thieves and the common-sense reading of the statute.
Henry W. Asbill and Bradley A. Marcus, Buckley LLP, Washington, DC; Daniel R. Alonso, Buckley LLP, New York, NY; Cynthia Eva Hujar Orr, NACDL, San Antonio, TX; Nicole DeBorde Hochglaube, NACDL, Houston, TX.