Health care fraud case sharpens dispute over what counts as “aggravated identity theft”

Petitions of the week

The Petitions of the Week column highlights a selection of cert petitions recently filed in the Supreme Court. A list of all petitions we’re watching is available here.

In three of the past four terms, the Supreme Court has rejected broad readings of white-collar criminal laws urged by the federal government. Those decisions concerned conduct ranging from wire and computer fraud to tax violations. This week, we highlight cert petitions that ask the court to consider, among other things, whether the government is correct that a federal identity-theft statute broadly applies to anyone who merely says or writes someone else’s name while committing a crime, or instead requires intentional misrepresentation of identity.

Although most people associate identity theft with having a bank account stolen, people use false names when committing all sorts of crimes. In 2004, Congress passed sentencing enhancements meant to crack down on this growing issue. When David Dubin allegedly overbilled Medicaid by $92 for psychological testing performed on a young patient in an emergency shelter in Texas, a federal prosecutor charged Dubin with health care fraud. The prosecutor also charged him with “aggravated identity theft” under the 2004 enhancements because Dubin wrote the patient’s name on the bill submitted to Medicaid for reimbursement. A jury convicted Dubin on both counts.

Dubin argued that the identity-theft enhancement applies only when someone intentionally lies about their or someone else’s identity as part of a crime, neither of which he did here. Remarking that “this doesn’t seem to be an aggravated identity theft case,” the trial judge nonetheless upheld the verdict under binding precedent in the U.S. Court of Appeals for the 5th Circuit. The judge voiced “hope [he would] get reversed on the aggravated identity count.” That hope fell short by one vote, as the full 5th Circuit affirmed by a vote of 9-1-8.

In Dubin v. United States, Dubin asks the justices to provide clarity on this issue, which he says has now split nine of the 13 circuit courts of appeals. The answer matters to Dubin because the enhancement added two years onto his prison sentence. But it also matters for the country, he argues, because under the 5th Circuit’s reading “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.”

A list of this week’s featured petitions is below:

Momphard v. Knibbs
22-8
Issues: (1) Whether the U.S. Court of Appeals for the 4th Circuit erred in finding that a reasonable officer in petitioner’s position would not have perceived a danger that justified lethal force; and (2) whether the 4th Circuit erred in defining respondent’s clearly established constitutional right in a general sense by stretching cases with superficial similarities for purposes of abrogating qualified immunity.

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.

Cuker Interactive, LLC v. Pillsbury Winthrop Shaw Pittman, LLP
22-18
Issue: Whether a federal court deciding a state-law issue in a bankruptcy case must apply the forum state’s choice-of-law rules or federal choice-of-law rules to determine what substantive law governs.

McCutchen v. United States
22-25
Issue: Whether, for purposes of the Fifth Amendment’s taking clause, a delegation of general legislative rulemaking authority to an agency constitutes an inherent restraint on title to any personal property that could be subsequently subjected to a prospective legislative rule, rendering the physical taking of the property non-redressable.