Opinion of the Court
whole crux of this case is how [petitioner was] billing.” App. 37–38. This overbilling was “criminal,” but it “wasn’t aggravated identity theft.” Id., at 38. Nevertheless, the District Court denied petitioner’s post-trial challenge to his aggravated identity theft conviction, explaining that contrary Fifth Circuit precedent tied its hands. The court said that it “hope[d]” it would “get reversed.” Id., at 39.
On appeal, a Fifth Circuit panel affirmed. On rehearing en banc, a fractured court affirmed again. Five judges who agreed with the Government nonetheless acknowledged 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 (2022) (Richman, C. J., concurring). Eight dissenting judges agreed on this point.
This type of prosecution is not uncommon. The Government has, by its own admission, wielded §1028A(a)(1) well beyond ordinary understandings of identity theft. One prosecution targeted a defendant who “made a counterfeit handgun permit” for another person, using that person’s real name and at that person’s request. United States v. Spears, 729 F. 3d 753, 754 (CA7 2013) (en banc). Another involved unlicensed doctors who violated the law by “issu[ing] prescriptions that their [actual] patients would then fill at … pharmacies.” United States v. Berroa, 856 F. 3d 141, 148, 155–156 (CA1 2017). There was also a prosecution involving an ambulance service inflating its reimbursement rates by “mischaracteriz[ing] the nature of the transports, saying that the patients had required stretchers when they had not.” United States v. Michael, 882 F. 3d 624, 628 (CA6 2018) (citing United States v. Medlock, 792 F. 3d 700, 705 (CA6 2015)). Yet another prosecution involved a defendant who “provided massage services to patients to treat their pain,” but improperly billed this “as a Medicare-eligible physical therapy service.” United States v. Hong, 938 F. 3d 1040, 1051 (CA9 2019).
