United States v. Dubin, 19-50912

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Citation: 27 F.4th 1021
• Docket Number: No. 19-50912,19-50912
• Parties: UNITED STATES of America, Plaintiff—Appellee, v. David Fox DUBIN, Defendant—Appellant.
• Decision Date: 03 March 2022

27 F.4th 1021

UNITED STATES of America, Plaintiff—Appellee,
v.
David Fox DUBIN, Defendant—Appellant.

No. 19-50912

United States Court of Appeals, Fifth Circuit.

FILED March 3, 2022

Joseph H. Gay, Jr., Assistant U.S. Attorney, Elizabeth Berenguer, Assistant U.S. Attorney, Mark Randolph Stelmach, Esq., Assistant U.S. Attorney, U.S. Attorney's Office, Western District of Texas, San Antonio, TX, for Plaintiff-Appellee.

Michael Clark Gross, Gross & Esparza, P.L.L.C., San Antonio, TX, Anton Metlitsky, O'Melveny & Myers, L.L.P., New York, NY, Jason Zarrow, O'Melveny & Myers, L.L.P., Los Angeles, CA, for Defendant-Appellant.

Henry Winchester Asbill, Esq., Bradley Marcus, Buckley, L.L.P., Washington, DC, Daniel R. Alonso, Esq., Buckley, L.L.P., New York, NY, for Amicus Curiae National Association of Criminal Defense Lawyers.

Before Owen, Chief Judge, and Jones, Smith, Barksdale, Stewart, Dennis, Elrod, Southwick, Haynes, Graves, Higginson, Costa, Willett, Ho, Duncan, Engelhardt, Oldham, and Wilson, Circuit Judges.

Per Curiam joined by Owen, Chief Judge, and Smith, Barksdale, Stewart, Dennis, Southwick, Graves, Higginson, and Ho, Circuit Judges:

William Joseph Dubin and his son David Fox Dubin were convicted of several offenses related to Medicaid fraud. They appealed, and a panel of this court affirmed the district court's judgment.¹

The court granted rehearing en banc² to consider whether there was sufficient evidence to support David Dubin's conviction under 18 U.S.C. § 1028A(a)(1). We now affirm the district court's judgment for the reasons set forth in the panel's majority opinion.

We need not resolve whether our review of the § 1028A issue is de novo or for plain error because the conviction stands regardless of which standard of review applies.

Accordingly, the district court's judgment is AFFIRMED.

Priscilla R. Owen, Chief Judge, joined by Smith, Barksdale, Higginson, and Ho, Circuit Judges, concurring:

27 F.4th 1022

Much ink has been spilled about "identity theft" in dissenting opinions in today's case.¹ However, the text of 18 U.S.C. § 1028A(a)(1) does not contain the words "identity theft" or even "theft." The text of the statute instead imposes a sentencing enhancement for the commission of enumerated federal felonies when the criminal "knowingly ... uses, without lawful authority, a means of identification of another person."² Our focus must be on the actual text of the statute and not the meaning or scope of "identity theft."

David Dubin was convicted under 18 U.S.C. § 1347(a) of "defraud[ing] a[ ] health care benefit program" or "obtain[ing], by means of false or fraudulent pretenses [or] representations ... money ... owned by, or under the custody or control of, a[ ] health care benefit program" (in this case Medicaid), "in connection with the delivery of or payment for health care benefits, items, or services."³ He was also convicted under 18 U.S.C. § 1349 of conspiracy to commit a § 1347(a) offense. The en banc court has held that these felony convictions stand.

The principal issue that has divided our court is the proper construction of § 1028A(a)(1), which sets forth a sentencing enhancement. That section provides "[w]hoever, 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 receive an additional two years of imprisonment.⁴ The health care fraud and conspiracy offenses of which Dubin was convicted are felony violations enumerated in subsection (c)(5) of § 1028A.⁵

The resolution of this issue turns on the meaning of the phrase "uses, without lawful authority, a means of identification of another person" in § 1028A(a)(1).⁶ At Dubin's trial, the jury found that he did "use[ ], without lawful authority, a means of identification of another person" in committing

27 F.4th 1023

the offenses set forth in § 1347(a) and § 1349. That sentencing enhancement conviction must be affirmed based on a straightforward reading of § 1028A(a)(1) and the evidence before the jury. Relevant here is Dubin's fraudulent billing pertaining to Patient L, who was a minor and whose initials are AS. Dubin had the "lawful authority" to use Medicaid Patient L's identifying information to obtain lawful reimbursements from the government for covered services, but Dubin also "use[d]" Patient L's identifying information "during and in relation to" the felonies of Medicaid fraud and conspiracy to commit Medicaid fraud. That "use" was "without lawful authority."

Though there is undeniably a split among circuit courts as to how § 1028A(a)(1) should be construed,⁷ the Fourth Circuit's analysis is solidly supported by the text of the statute and familiar principles of statutory interpretation. In United States v. Abdelshafi ,⁸ the Fourth Circuit eloquently and ably addressed how § 1028A(a)(1) applies to facts indistinguishable from those in the present case. Abdelshafi owned and operated a company that transported Medicaid patients.⁹ He lawfully received information about those patients including their names and Medicaid identification numbers.¹⁰ In billing for transportation services, Abdelshafi "not only inflated mileage amounts, but also submitted claim forms for trips that did not, in fact, occur."¹¹ The Fourth Circuit affirmed his conviction under § 1028A(a)(1), rejecting the same arguments now asserted in the case before us by Dubin and the dissenting opinions of JUDGE ELROD and JUDGE COSTA. The Fourth Circuit held:

• "While Abdelshafi had authority to possess the Medicaid identification numbers, he had no authority to use them unlawfully so as to perpetuate a fraud. We, therefore, decline to narrow the application of § 1028A(a)(1) to cases in which an individual's identity has been misrepresented, as it would clearly be inappropriate for us ‘to adopt an interpretation [ ] not supported by the plain text of the statute.’ United States v. Pressley , 359 F.3d 347, 351 (4th Cir. 2004)."¹²

• "Our conclusion in this regard is not altered by Abdelshafi's representation that ‘every single incident of health care fraud by a provider would also constitute aggravated identity theft’ if his conduct is deemed to violate the statute."¹³

• " Section 1028A(a)(1) provides an enhanced penalty for those who unlawfully use another's identifying information during and in relation to a broad array of predicate offenses, including crimes related to the ‘theft of government property’ and ‘fraud,’ as well as offenses involving ‘unlawful activities related to passports, visas, and immigration.’ "¹⁴

27 F.4th 1024

• "That a single type of health care fraud related to provider payments—a subset of crimes involving fraud and theft—may fall within the statutory ambit is not particularly noteworthy."¹⁵

• " ‘Even if we were more persuaded than we are by [this] policy argument [ ], the result in this case would be unchanged. Resolution of the pros and cons of whether a statute should sweep broadly or narrowly is for Congress.’ United States v. Rodgers , 466 U.S. 475, 484, 104 S.Ct. 1942, 80 L.Ed.2d 492 (1984). We adhere to the principle that ‘[f]ederal crimes are defined by Congress, and so long as Congress acts within its constitutional power in enacting a criminal statute, this Court must give effect to Congress' expressed intention concerning the scope of conduct prohibited.’ United States v. Kozminski , 487 U.S. 931, 939, 108 S.Ct. 2751, 101 L.Ed.2d 788 (1988)."¹⁶

JUDGE ELROD and JUDGE COSTA'S dissenting opinions disagree with the Fourth Circuit's interpretation of § 1028A(a)(1). As noted above, in advocating for their contrary view, those opinions deflect focus from the actual text of § 1028A(a)(1) by characterizing the offense defined in that statute as "identity theft."¹⁷ It is much easier to argue, as the dissenting opinions do, about whether Dubin committed "identity theft"¹⁸ and "what ordinary people understand identity theft to be"¹⁹ as opposed to whether he "use[d] ... a means of identification of another person" in committing his crimes or what ordinary people would understand the text of § 1028A(a)(1) to prohibit. We must not lose sight of the fact that the offense Congress concluded warranted a two-year sentencing enhancement is defined in § 1028A(a)(1), and the elements of that offense are not captured or even fairly described by the words "identity theft."

The aim of the dissenting opinions is to cabin the sentencing enhancement substantially. But in attempting to do so, they do not give effect to both "lawful" and "authority." JUDGE COSTA'S dissenting opinion draws a distinction not found in the text of § 1028A(a)(1). That opinion says that § 1028A(a)(1) applies only when an entity was billed but no services were provided ("made-up billing cases" in the dissenting opinion's words) and does not apply to cases in which bills were fraudulently inflated ("overbilling cases," again in the dissenting opinion's words).²⁰

With great respect, it is unreasonable to construe "uses, without lawful authority, a means of identification of another person" as drawing a distinction based on whether some services or no services were provided, as JUDGE COSTA'S dissenting opinion²¹ and two decisions from other...