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Justices Likely To Limit Law Adding 2-Year Terms In Identity Theft Cases

The Supreme Court seems poised 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 involves Davis Dubin, who was convicted of health care fraud, the New York Times reports. Dubin, whose company provided mental health testing to young people at emergency shelters in Texas, was accused of bilking Medicaid by misrepresenting who 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. Dubin’s sentence included a two-year mandatory minimum term under a law titled “aggravated identity theft.” The text 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 Fisher, a lawyer for 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 about a valet parking a Porsche, saying, “The valet is authorized to drive it generally but not to drive it around the city, but to park it .“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 Neil Gorsuch 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.”


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