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What constitutes “identity theft”?

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The Relist Watch column examines cert petitions that the Supreme Court has “relisted” for its upcoming conference. A short explanation of relists is available here.

This week’s installment will be brief, because there’s only one newly relisted case: Dubin v. United States.

In recent years, the Supreme Court has expressed misgivings about white-collar prosecutions under broadly worded statutes. Think McDonnell v. United States (involving the prosecution of the former Virginia governor), Kelly v. United States (the “bridgegate” case), and this term’s cases Percoco v. United States (involving whether a private citizen can be convicted of “honest-services” fraud) and Ciminelli v. United States (involving the so-called “right to control” theory of fraud). Dubin involves a favorite charge that federal prosecutors frequently tack on to fraud offenses, “identity theft.” The common conception of “identity theft” is when someone uses another person’s personal information to engage in fraudulent transactions — which frequently has the result of harming the person whose identity is fraudulently used. But in recent years, prosecutors have been tacking the charge on whenever a person uses another person’s name while committing a fraud.

This case is a good example. David Dubin worked for his father’s company providing mental-health testing to young people at emergency shelters. He submitted a bill to Medicaid for psychological testing, but because the bill falsely indicated it was performed by a licensed psychologist, rather than a licensed psychological associate, the bill was $92 too high. The bill also rounded up the time spent on the test from 2.5 hours to 3 hours, and falsely said the test was performed in May 2013 rather than April of that year to avoid Medicaid’s rule that it will reimburse only one such test per year. Dubin was charged with health care fraud. And because he used the name and identifying information of the actual patient on the form, he was also charged with “aggravated identity theft.” He was convicted, and although even the district judge said he “hope[d]” that the conviction would “get reversed,” the en banc U.S. Court of Appeals for the 5th Circuit affirmed.

There were five separate opinions. Judge Jennifer Walker Elrod dissented to say that she would have followed the 6th Circuit decision in United States v. Medlock, under which a fraud conviction will not support an “identity theft” charge unless the defendant makes misrepresentations about a person’s identity. Judge Gregg Costa, joined by six other judges, wrote that “[t]he Supreme Court’s message is unmistakable: Courts should not assign federal criminal statutes a ‘breathtaking scope’ when a narrower reading is reasonable.” Judge Priscilla Richman wrote separately to say that although “there is undeniably a split among circuit courts” on this issue, Dubin’s actions came within the statute’s literal prohibition against “us[ing], without lawful authority, a means of identification of another person.”

In its brief in opposition, the government contends that the decision does not “implicate any split of authority” and the case would be a “poor vehicle for reviewing the question presented.” We should have a better idea what the court thinks on Monday. Given the Supreme Court’s track record in such cases, if the court grants review, it could be a spooky day for the government.

Until next time, stay safe! 

New Relist

Dubin v. United States, 22-10
Issue: Whether a person commits aggravated identity theft any time they mention or otherwise recite someone else’s name while committing a predicate offense.
(relisted after the Oct. 14 conference)

Returning Relists

Anthony v. Louisiana, 21-993
Issues: (1) Whether the presumption of innocence, the right to confrontation and the right to a fair trial permit a court to allow the grand jury prosecutor to take the stand and offer testimony regarding the prosecutor’s belief about the credibility of the alleged victims, the guilt of the defendant and the strength of the state’s evidence; (2) whether the admission of such prosecutorial testimony constitutes structural error or, instead, is subject to harmless error review; and (3) whether a reviewing court’s conclusion that the evidence at trial supports the defendant’s convictions even excluding the grand jury prosecutor’s testimony meets the state’s burden of proving harmless error beyond a reasonable doubt.
(rescheduled before the June 16 conference; relisted after the June 23, June 29, Sept. 28, Oct. 7 and Oct. 14 conferences)

Buffington v. McDonough, 21-972
Issues: (1) Whether the doctrine of Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. permits courts to defer to the Department of Veterans Affairs’ construction of a statute designed to benefit veterans, without first considering the pro-veteran canon of construction; and (2) whether Chevron should be overruled.
(rescheduled before the May 12, May 19, May 26, June 2, June 9, June 16, June 23 conferences; relisted after the Sept. 28, Oct. 7 and Oct. 14 conferences)

Khorrami v. Arizona, 21-1553
Issue: Whether the Sixth and 14th Amendments guarantee the right to a trial by a 12-person jury when the defendant is charged with a felony.
(relisted after the Sept. 28, Oct. 7 and Oct. 14 conferences)

Juno Therapeutics, Inc. v. Kite Pharma, Inc., 21-1566
Issue: Whether the adequacy of the “written description of [an] invention” is measured by the statutory standard of “in such full, clear, concise, and exact terms as to enable any person skilled in the art to make and use the same” in 35 U.S.C. § 112(a), or by the Federal Circuit’s test that the “written description of the invention” must demonstrate the inventor’s “possession” of “the full scope of the claimed invention” including all “known and unknown” variations of each component.
(relisted after the Sept. 28, Oct. 7 and Oct. 14 conferences)

Shoop v. Cunningham, 21-1587
Issues: (1) Whether the U.S. Court of Appeals for the 6th Circuit erred by granting habeas relief based on an alleged misapplication of its own circuit precedent under the Antiterrorism and Effective Death Penalty Act, which generally prohibits courts from awarding habeas relief to state prisoners but lifts that prohibition with respect to prisoners in custody because of a state-court ruling that was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States”; and (2) whether, when the requirements for a federal evidentiary hearing are otherwise satisfied but Federal Rule of Evidence 606(b)(1) forbids considering the only evidence supporting an evidentiary hearing, a court must hold the hearing regardless.
(relisted after the Sept. 28, Oct. 7 and Oct. 14 conferences)

Chinn v. Shoop, 22-5058
Issues: (1) Whether a petitioner who raises a claim under Brady v. Maryland must establish that they were more likely than not prejudiced by the government’s suppression of favorable evidence; and (2) whether the judgment of the U.S. Court of Appeals for the 6th Circuit requiring the petitioner in this case to establish that he was more likely than not prejudiced by the government’s suppression of favorable evidence should be summarily reversed.
(relisted after the Sept. 28, Oct. 7 and Oct. 14 conferences)

Recommended Citation: John Elwood, What constitutes “identity theft”?, SCOTUSblog (Oct. 26, 2022, 10:59 AM),