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

Scenario PREVIEW

The justices will start out the second week of the February session with oral argument in Dubin v. United States. (Davis Staedtler by means of Flickr)

The federal aggravated identity theft statute imposes a two-yr sentence for any particular person who, “during and in relation to” certain enumerated felonies, “knowingly transfers, possesses, or employs with out lawful authority, a means of identification of a further man or woman.” On Monday, the Supreme Courtroom will consider the get to of this statute in Dubin v. United States.

As qualifications, petitioner David Dubin was convicted of overall health treatment fraud — an enumerated felony. Dubin was the controlling companion of a psychological companies organization that his father experienced started. The exercise offered psychological health tests to youths at crisis shelters. Dubin’s conviction stemmed for a Medicaid declare he submitted in relation to the remedy of a patient. The affected person was in fact addressed by the exercise. And there is not any argument that Dubin submitted the declare devoid of the patient’s authorization. Instead, the government’s principle is that Dubin overbilled for the therapy delivered — the submitted declare contained “three materials falsehoods” linked to the type and length of solutions offered.

Dubin did not commit identity theft as one particular may perhaps normally imagine of it. But the aggravated id theft statute does not use the phrase “identity theft.” And wanting 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” overall health care fraud, and he “plainly” acted “without lawful authority” when he dedicated the fraud.

Dubin disagrees. In his view, the statutory phrase “in relation to” ought to be study in tandem with the verb “uses.” When seen with each other, Dubin contends, the statute “requires a significant nexus between the employment of another’s name and the predicate offense.” Furthermore, working with another’s id “without lawful authority” needs the authorities “to present that the defendant used another’s person’s name with no permission that was lawfully acquired” — a showing the federal government did not make listed here.

A panel of the U.S. Courtroom of Appeals for the 5th Circuit held that the statute included Dubin’s carry out. The panel reasoned that the statute “operates simply as a two-part question”: “did defendant use a implies of identification and, was that use both ‘without lawful authority’ or over and above the scope of the authority offered?” Then, on the lookout to the dictionary for steerage, the panel asserted that “use” implies to “employ,” even though “without lawful authority” means conduct that is “contrary to legislation.” As a result, putting the words alongside one another, the panel held that since Dubin “employed” the patient’s identification when submitting the fraudulent assert, his perform fell in the ambit of the statute. Choose Jennifer Elrod concurred less than the reasoning that binding circuit precedent necessary this final result. But if she have been writing on a “blank slate,” she would have dominated for Dubin. 

Just after rehearing the case en banc, a splintered 5th Circuit affirmed Dubin’s conviction. Nine judges signed on to a limited view that adopted the panel opinion’s reasoning. Eight judges dissented. And a person choose considered the problem was not thoroughly in advance of the courtroom.  

The dissenting judges criticized the the greater part for resorting to the dictionary to interpret “the chameleon-like word ‘use.’” And the dissenters explained that even though “a textual situation can be made” for the expansive looking at of the identity theft statute propounded by the the vast majority (and the government), when there is a plausible narrower interpretation of a prison statute, Supreme Court docket circumstance legislation teaches that a court should undertake the narrower interpretation. The dissenting judges also reasoned that adopting the narrower watch of the statute aligned with widespread sense: “ordinary people today recognize id theft to be … the unauthorized use of someone’s identification.” Dubin did not commit id theft as the criminal offense is typically understood.

Just as the problem more than the accurate get to of the aggravated identification theft statute split the 5th Circuit, it has break up the circuits. Now the Supreme Court docket will determine no matter if Dubin should have two decades included to his prison sentence for the criminal offense of aggravated identification theft for what was in essence basic health care fraud. Whilst a great deal of oral argument may perhaps circle close to what the statute suggests by “use,” “in relation to,” and “without lawful authority,” the Supreme Courtroom has, at bottom, a single standard query to response: Does a defendant have to steal one’s identity to commit the crime of id theft?