That's the issue on tap Monday morning in the Supreme Court. The case is Dubin v. United States.
It's pretty amazing that federal district and appellate judges around the country have been imposing two year min-mans in just this scenario for years. But here we are.
From SCOTUSblog:
As background, petitioner David Dubin was
convicted of health care fraud — an enumerated felony. Dubin was the
managing partner of a psychological services company that his father had
founded. The practice provided mental health testing to youths at
emergency shelters. Dubin’s conviction stemmed for a Medicaid claim he
submitted in relation to the treatment of a patient. The patient was in
fact treated by the practice. And there is not any argument that Dubin
submitted the claim without the patient’s permission. Instead, the
government’s theory is that Dubin overbilled for the treatment provided —
the submitted claim contained “three material falsehoods” related to
the type and duration of services provided.
Dubin did not commit identity theft as one
may typically think of it. But the aggravated identity theft statute
does not use the phrase “identity theft.” And looking at the language of
the statute, the government argues
that what Dubin did “squarely fits” within the statutory text: He
“used” the patient’s name, “in relation to” health care fraud, and he
“plainly” acted “without lawful authority” when he committed the fraud.
Dubin disagrees.
In his view, the statutory phrase “in relation to” must be read in
tandem with the verb “uses.” When viewed together, Dubin contends, the
statute “requires a meaningful nexus between the employment of another’s
name and the predicate offense.” Moreover, using another’s identity
“without lawful authority” requires the government “to show that the
defendant used another’s person’s name without permission that was
lawfully acquired” — a showing the government did not make here.
A panel of the U.S. Court of Appeals for
the 5th Circuit held that the statute covered Dubin’s conduct. The panel
reasoned that the statute “operates simply as a two-part question”:
“did defendant use a means of identification; and, was that use either
‘without lawful authority’ or beyond the scope of the authority given?”
Then, looking to the dictionary for guidance, the panel asserted that
“use” means to “employ,” while “without lawful authority” means conduct
that is “contrary to law.” Thus, putting the words together, the panel
held that because Dubin “employed” the patient’s identification when
filing the fraudulent claim, his conduct fell within the ambit of the
statute. Judge Jennifer Elrod concurred under the reasoning that binding
circuit precedent required this outcome. But if she were writing on a
“blank slate,” she would have ruled for Dubin.
After rehearing the case en banc, a splintered 5th Circuit affirmed
Dubin’s conviction. Nine judges signed on to a short opinion that
adopted the panel opinion’s reasoning. Eight judges dissented. And one
judge thought the issue was not properly before the court.
The dissenting judges criticized the
majority for resorting to the dictionary to interpret “the
chameleon-like word ‘use.’” And the dissenters explained that while “a
textual case can be made” for the expansive reading of the identity
theft statute propounded by the majority (and the government), when
there is a plausible narrower interpretation of a criminal statute,
Supreme Court case law teaches that a court should adopt the narrower
interpretation. The dissenting judges also reasoned that adopting the
narrower view of the statute aligned with common sense: “ordinary people
understand identity theft to be … the unauthorized use of someone’s
identity.” Dubin did not commit identity theft as the crime is commonly
understood.
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