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Literalism vs. lenity in a case on the scope of federal identity theft

The front of the Supreme Court building.

The federal aggravated identity theft statute imposes a two-year sentence for any person who, “during and in relation to” certain enumerated felonies, “knowingly transfers, possesses, or uses without lawful authority, a means of identification of another person.” On Monday, the Supreme Court will consider the reach of this statute in Dubin v. United States.

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.

Just as the question over the correct reach of the aggravated identity theft statute split the 5th Circuit, it has split the circuits. Now the Supreme Court will decide whether Dubin should have two years added to his prison sentence for the crime of aggravated identity theft for what was in essence plain health care fraud. While much of oral argument may circle around what the statute means by “use,” “in relation to,” and “without lawful authority,” the Supreme Court has, at bottom, one basic question to answer: Does a defendant have to steal one’s identity to commit the crime of identity theft?

Recommended Citation: Daniel Harawa, Literalism vs. lenity in a case on the scope of federal identity theft, SCOTUSblog (Feb. 24, 2023, 3:53 PM),