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Supreme Court to examine the scope of identity fraud

Criminal defense lawyers say the case should be treated as a symptom of rampant overcriminalization by the federal government.

WASHINGTON (CN) — The Supreme Court on Thursday agreed to examine what constitutes identity theft in a fraud. 

David Dubin, a managing partner at his father’s mental-health testing company, was convicted of health care fraud for filing a phony Medicaid reimbursement form. Because Dubin used a patient's name when filing a false claim, however, the government brought charges for identity theft as well. 

In 2013, PARTS — Dubin’s father’s company — was asked to evaluate the patient, but the exam was cut short when Dubin’s father realized the patient’s Medicaid benefits had already been exhausted. Despite the incomplete exam, Dubin instructed an employee to file a fraudulent reimbursement claim to Medicaid that included the patient’s name and identification number. 

A jury found Dubin guilty of health care fraud and identity fraud and sentenced him to three years in prison. The Fifth Circuit affirmed. Dubin then petitioned the high court, asking if aggravated identity theft can occur anytime someone’s name is used while committing a crime. 

Congress created the Identity Theft Penalty Enhancement Act in 2004 to crack down on the growing problem of identity theft. The statute does not cover identity theft alone but rather when it occurs during the course of someone using another person’s personal data that involves fraud or deception. This statute holds a mandatory two-year sentence that must be stacked on top of the predicate felony. 

For Dubin, it almost triples his sentence. 

“The reach of the aggravated identity theft statute is also extremely important,” Jeffrey Fisher, an attorney for Dubin with the Stanford Law School Supreme Court Litigation Clinic, wrote in his petition. “The statute subjects an offender to a mandatory two-year prison sentence that must be stacked on top of the sentence for the predicate felony. (Here, for example, the statute nearly tripled petitioner’s term of imprisonment.)” (Parentheses in original.)

Dubin claims his case is just one area where this rule is applied, and the Fifth Circuit’s ruling will have wide implications. 

“Under the Fifth Circuit’s rule, moreover, the additional two-year sentence applies not only to most every commission of healthcare fraud, but would also sweep in tax preparers, immigration attorneys, and anyone else convicted of submitting any form on someone’s behalf that contains a misrepresentation unrelated to the person’s identity,” Fisher wrote. 

The government argues that Dubin qualifies for the enhanced sentence and that, even if the court were interested in examining the question presented, this case would be a poor vehicle to do so. 

“Section 1028A prescribes a sentence enhancement for any person who, ‘during and in relation to [certain felonies], knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person,’” U.S. Solicitor General Elizabeth Prelogar wrote in the government’s brief. “Petitioner’s conduct here — submitting a Medicaid claim seeking reimbursement owed to a specific patient, identified by name and number, for a service that patient never received — qualified for that enhancement.” 

Criminal defense lawyers — who filed a friend-of-the-court brief that urged the justices to hear the case — say the Fifth Circuit’s ruling is a symptom of the federal overcriminalization epidemic. 

“Alarmingly, this trend has only worsened and overcriminalization now includes instances where, as here, the executive branch uses criminal provisions in specific laws in ways Congress never intended,” Henry Asbill with Buckley wrote for the lawyers. “An improper use of prosecutorial discretion can result in the expansion of federal criminal law beyond legislative predictions if ultimately given judicial imprimatur.” 

Per their custom, the justices did not issue any statement with their order granting Dubin a writ of certiorari.

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