Dubin v US: SCOTUS Aggravated by Prosecutorial Overreach

Photo by Joe Ravi, CC BY-SA 3.0 <https://creativecommons.org/licenses/by-sa/3.0>, via Wikimedia Commons

Any lawyer who has represented clients in criminal matters (and anyone who has been said client) will tell you that prosecutors can be super creative. Did I ever tell you about the time when two young ladies in my jurisdiction were charged with possession with intent to deliver marijuana for passing a joint back and forth at a city bus stop? In that case it was the officer being creative and I was the prosecutor who dismissed the case (raising the ire of the cop who, by his own admission, wanted “to teach their smartasses a lesson.”) The point is, those on the government side of criminal cases can and do liberally stretch the meaning and intent of criminal statutes like so much taffy.

It’s not just low-level street cops with chips on their shoulders who do this stuff. Our friends the feds do it, too. Just ask David Dubin, manager of a psychological services company, who committed Medicaid fraud. He billed Medicaid for testing performed by a licensed psychologist, even though the person administering the test had no such credentials. This is a common type of Medicaid fraud. The person who administered the test was a licensed psychological associate, who can in fact give the test, but would receive a lower reimbursement than an actual licensee. By inflating the test giver’s credentials, the defendant was able to secure a whopping $338.

The Medicaid fraud charges make sense, but Dubin was also charged with identity theft. Aggravated identity theft, even. Why? because the Health Care Fraud charge carries no minimum prison sentence; identity theft includes a mandatory minimum of two years. The prosecutor’s theory was this: In order to submit the claim to Medicaid, Dubin had to include the patient’s Medicaid ID number. In doing so, said the feds, Dubin used the identity of another in the commission of a felony, constituting aggravated identity theft under §1028(A)(a)(1):

Whoever, during and in relation to any felony violation enumerated in subsection (c), knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person shall, in addition to the punishment provided for such felony, be sentenced to a term of imprisonment of 2 years.

Makes sense, technically. Just like, technically, each of those two girls at the bus stop held a joint in her hand with the intention of passing -i.e., delivering- it to her friend. And vice versa. It sorta kinda seems to fit but is also patently ridiculous and clearly not the intent of the statute, as Dubin’s lawyers argued here.

This week, SCOTUS, in its entirety, nodded in agreement.

The opinion was authored by Justice Sotomayor and joined by all but Gorsuch, who nevertheless concurred. Sotomayor sets it out in her typical simplified fashion in the first paragraph:

On [the government’s] sweeping reading, as long as a billing or payment method employs
another person’s name or other identifying information, that is enough. A lawyer who rounds up her hours from 2.9 to 3 and bills her client electronically has committed aggravated identity theft. The same is true of a waiter who serves flank steak but charges for filet mignon using an electronic payment method.

Technically, the opinion points out, since no Medicaid claim can be submitted without including the member identification number of the patient, all Medicaid fraud claims would also be aggravated identity theft. The prosecutor’s response to this: “just trust us to wield this power responsibly.” I assume Justice Sotomayor and her brethren and sistren kept their composure when this came up during oral arguments, though I could barely do so when reading it on my back porch. They simply must be joking. As shown by the facts of this case, the government is willing to tack it on to a single count of fraud totaling $338, committed by a first time offender. Additionally, Sotomayor writes, “If §1028A(a)(1)
applies virtually automatically to a swath of predicate offenses, the prosecutor can hold the threat of charging an additional 2-year mandatory prison sentence over the head of any defendant who is considering going to trial.”

So, how to square the facially applicable language of the statute? After all, it clearly says that the use of another person’s identification during and in relation to any felony violation is aggravated identity theft. The Court has no quibble with a Medicaid ID number being a form of identification. Rather, Sotomayor tackles the definition and interpretation of “use”, and the phrase “during and in relation to”.

This is the part where normal people will glaze over several droning pages of analysis on the meaning of words and statutory interpretation. Sotomayor cites precedent to define “use” in this instance as “conversion to one’s service,” and “in relation to” as requiring a “nexus of some kind.” This is still quite broad, she notes, and could still be interpreted to cover nearly any use of an identification during a fraud crime, no matter how integral or incidental the usage is to the commission of the offense.

It’s all about the context, she says:

Section 1028A(a)(1)’s title and terms both point to a narrower reading, one centered around the ordinary understanding of identity theft. This cuts against the Government’s broad reading, which the Government admits bears little relationship to the common
understanding of identity theft. In contrast, a more targeted reading accurately captures the ordinary understanding of identity theft, where misuse of a means of identification is at the crux of the criminality.

Importantly, the Court notes that there are different statutes for “identity fraud” and “identity theft”; this statute is the latter. Looking at the ordinary meaning of the phrase “identity theft”, the opinion finds that “[T]hese definitions refer to offenses built around what the defendant does with the means of identification in particular. In other words, the means of identification specifically is a key mover in the criminality.” For this statute to apply, the defendant would have needed to use the identification to deceive: “When a means of identification is used deceptively, this deception goes to “who” is involved, rather than just “how” or “when” services were provided.”

It’s hard to explain this, and Sotomayor struggles a bit, but you probably get it. If the defendant had never actually provided services to the patient but had somehow procured his or her ID number and used it for billing, we might be closer to an actual identity theft. But what is at issue under the facts of this case is not whether this Medicaid beneficiary ever received services, but rather who performed them. If the defendant had used the name and information of a licensed psychologist who had not performed the work, that might also have gotten the government its way. But the fraud here was not lying about who did the work or who received the services; it was about the credentials of the actual practitioner involved. Fraud, for sure, but nobody’s identity had to be stolen in order to complete this crime.

If you think it’s sketchy to balance this analysis on murky, fluid definitions, you might be Neil Gorsuch. Gorsuch agrees with the majority that Dubin’s conviction should be tossed. But he thinks the entire statute should be tossed right along with it for vagueness. He starts his concurring opinion with a banger:

Whoever among you is not an “aggravated identity thief,” let him cast the first stone.

He refers to the government’s “unserious” interpretation of the statute, which he does not think can be reconciled despite the majority’s heroic efforts.

The United States offers up a rapacious interpretation that would require only “the use of th[e] means of identification [to] ‘facilitat[e] or furthe[r]’ the predicate offense in
some way.”

***

The United States’ maximalist approach has simplicity on its side, yes; an everybody-is-guilty standard is no challenge to administer. But the Constitution prohibits the Judiciary from resolving reasonable doubts about a criminal statute’s meaning by rounding up to the most punitive interpretation its text and context can tolerate. (Emphasis mine, because I love it.)

Gorsuch finds the majority’s attempts to narrow the language to be no less nebulous and inexact than the statute itself. He sets forth what Sotomayor calls in a footnote “a blizzard of hypotheticals” to show why the majority’s approach is unworkable. In the end, a defendant must have a fair notice of what conduct is being punished by a statute, and Gorsuch sees no way to get there from this statute:

“…the Constitution’s promise of due process means that criminal statutes must provide rules “knowable in advance,” not intuitions discoverable only after a prosecutor has issued an indictment and a judge offers an opinion.”

In a bit of a dig, Sotomayor responds to the concurrence:

The concurrence’s bewilderment is not, fortunately, the standard for striking down an Act of Congress as unconstitutionally vague. There will be close cases, certainly, but that is commonplace in criminal law.

Overall, the prosecution was stretching the bounds of the law to add a stronger punishment where one was not provided for by the applicable statute. Since one cannot ever submit a fraudulent Medicaid/Medicare claim without including a member’s ID number, it stands to reason that if doing so was meant to be punishable by a mandatory two years in prison, the statute would so provide.

I am not a big fan of most of the current members of the big bench, but anytime they team up to smackdown overreaching prosecutors, I’m here for it. Credit where credit is due.