SCOTUS Questions the Government’s Absurdly Broad Definition of ‘Aggravated Identity Theft’

Back in 2004, Congress decided to tackle the problem of “identity theft.” It was responding to much-publicized cases in which criminals obtained credit cards in other people’s names, sticking them with the resulting bills and hurting their credit ratings. But instead of focusing on that paradigmatic situation and crimes of a similar nature, Congress passed the Identity Theft Penalty Enhancement Act, which prescribed a two-year mandatory minimum sentence for “aggravated identity theft.” The law’s definition of that crime is so broad that it can be read to cover myriad minor offenses that are nothing like identity theft as it is generally understood.

Naturally, the federal government favors a sweeping interpretation of the statute, which gives prosecutors more power to coerce guilty pleas. Under the Justice Department’s reading, defendants who otherwise might pay fines and/or receive probation for low-level fraud can instead go to prison for two years. But during oral arguments this week in Dubin v. United States, a wide range of justices pushed back against that interpretation, noting that it produces absurd results.

The case involves David Dubin, who worked for a business that performs psychological testing of Texas teenagers living in emergency shelters. Dubin was accused of submitting a fraudulent Medicaid claim for a client who was tested by a licensed psychological associate in April 2013. According to the government, the claim misrepresented the services in three ways: It said the testing had been done by a licensed psychologist, which increased the reimbursement by $101; it said the testing happened in May rather than April; and it rounded up the time required for the evaluation from two-and-a-half hours to three hours.

A jury convicted Dubin of health care fraud under 18 USC 1347, which can be punished by a fine and/or up to 10 years in prison. Based on the same conduct, the jury also convicted him of aggravated identity theft under 18 USC 1028A, triggering the two-year mandatory minimum. Although the trial court said “this doesn’t seem to be an aggravated identity theft case,” it concluded that 5th Circuit precedent required judges to pretend otherwise.

On appeal, the gist of Dubin’s argument was straightforward: I did not commit identity theft, so how can I be guilty of identity theft? The U.S. Court of Appeals for the 5th Circuit gave its answer last March.

The law says a defendant is guilty of aggravated identity theft when he “knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person…during and in relation to” one of many predicate offenses, including health care fraud. As the 5th Circuit saw it, Dubin used “a means of identification of another person”—the client’s name and Medicaid ID number—when he submitted the disputed claim. And although he was generally authorized to use that information when he submitted Medicaid claims, the appeals court said, he did not have “lawful authority” to use it in connection with a fraudulent claim.

As Dubin’s lawyers note in their Supreme Court briefs