Supreme Court Seems Skeptical of Broad Sweep of Identity Theft Law

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WASHINGTON — The Supreme Court seemed poised on Monday to limit the scope of a federal law that adds two years of prison time to sentences for a variety of felonies if the defendant engaged in identity theft in the process.

The case concerned David Dubin, who was convicted of health care fraud. Mr. Dubin, whose company provided mental health testing to young people at emergency shelters in Texas, was accused of bilking Medicaid by misrepresenting who had conducted the testing and when it was performed and by rounding up the number of hours spent carrying out the tests from 2.5 to three.

Mr. Dubin’s sentence included a two-year mandatory minimum term under a statutory provision titled “aggravated identity theft.” But the text of the provision is broad and does not seem to require identity theft in the ordinary understanding of that phrase. Rather, it requires the longer sentence if the defendant “during and in relation to” certain felonies “knowingly transfers, possesses or uses without lawful authority, a means of identification of another person.”

Jeffrey L. Fisher, a lawyer for Mr. Dubin, said his client had not used a patient’s identity in any meaningful way, adding that the nature of the conduct mattered. “It has to be a lie about who receives services or who obtains services,” he said, “not a lie about how those services were rendered.”

The justices tried to test the limits of that argument. Justice Clarence Thomas asked, for instance, about a valet parking a Porsche, noting that “I don’t have one.”

“The valet is authorized to drive it generally but not to drive it around the city, but to park it,” he said. “So I don’t see how this is any different from that. He’s authorized to bill at the appropriate charges, but it’s not a general authorization.”

Justice Ketanji Brown Jackson asked about charges at a restaurant. “I give the waiter my credit card, and rather than charging me for the food, he charges me, you know, he pays down his mortgage with my credit card,” she said.

Justice Neil M. Gorsuch also asked about restaurant charges. “If the government’s theory is correct and every time I order salmon at a restaurant I’m told it’s fresh, but it’s frozen, and my credit card is run for fresh salmon, that’s identity theft,” he said.

He said that the government’s position in the case would transform commonplace misconduct into identity theft “whether it’s in a restaurant billing scenario, a health care billing scenario, or lawyers who round their hours up.” He added, to laughter, “I’m sure nobody in this audience has ever done that.”

Vivek Suri, a lawyer for the federal government, faced hostile questions.

“Let’s say the only allegation here involved the rounding up from 2.5 hours to three hours,” Justice Thomas said. “Would that be sufficient to violate this provision?”

Mr. Suri said yes. “I appreciate that that may seem an unattractive result,” he said.

Justice Thomas responded that “unattractive is an understatement.”

Justice Gorsuch said Mr. Suri had conceded away his case. “It seems to me you’ve just given up the ghost and clarified things substantially — that every time anyone overbills for anything, that triggers this statute,” Justice Gorsuch said.

Justice Jackson appeared to agree. “It’s like every fraud in the world,” she told Mr. Suri. “And you just admitted in response to Justice Thomas that it could be a teeny, teeny fraud.”

Near the end of the argument in the case, Dubin v. United States, No. 22-10, Mr. Fisher said the two-year mandatory minimum sentence under the contested provision functioned as “a very strong cudgel to use against people to procure pleas in very low-level fraud cases.”

“And that’s not what Congress was aimed for in this case,” he said. “Congress wasn’t trying to create a two-year mandatory minimum all of a sudden for ordinary fraud offenses.”

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