What is “identity theft”? – SCOTUSblog


The Relist Watch column examines cert petitions that the Supreme Court has “relisted” for its upcoming conference. A short explanation of the lists is available here.

This week’s episode will be brief, as there is only one newly re-enrolled case: Dubin v. United States.

In recent years, the Supreme Court has expressed doubts about white-collar prosecutions under broadly worded statutes. Think McDonnell v. United States (involving the prosecution of the former Governor of Virginia), Kelly v. United States (the “bridgegate” case), and the cases of this term Percoco v. United States (implying whether a private citizen can be found guilty of “honest services” fraud) and Ciminelli v. United States (involving the “right to control” theory of fraud). Dubin involves a favorite charge that federal prosecutors frequently associate with fraud crimes, “identity theft.” The common understanding of “identity theft” is when someone uses another person’s personal information to make fraudulent transactions, often resulting in harm to the person whose identity is being used fraudulently. But in recent years, prosecutors have brought charges whenever someone uses another person’s name while committing fraud.

This case is a good example. David Dubin worked for his father’s company, providing mental health testing to young people in emergency shelters. He submitted a bill to Medicaid for psychological testing, but because the bill incorrectly stated that it was performed by a licensed psychologist, rather than a licensed psychological associate, the bill was $92 too high. Bill also rounded the time spent on the test from 2.5 hours to 3 hours and falsely stated that the test was performed in May 2013 rather than April of that year to avoid the Medicaid rule. that it will reimburse only one such test per year. Dubin was charged with health care fraud. And because he used the actual patient’s name and identifying information on the form, he was also charged with “aggravated identity theft.” He was found guilty, and although even the district judge said he “hoped[d]that the conviction would be “overturned”, the en banc United States Court of Appeals for the 5th Circuit affirmed.

There were five distinct opinions. Judge Jennifer Walker Elrod dissented to say she would have followed the 6th Circuit’s ruling by United States vs. Medlock, under which a conviction for fraud will not support a charge of “identity theft” unless the defendant makes false statements about a person’s identity. Judge Gregg Costa, joined by six other judges, wrote that “[t]he Supreme Court’s message is unequivocal: courts should not attribute “breathtaking reach” to federal criminal statutes when a narrower reading is reasonable. Judge Priscilla Richman wrote separately to say that while “there is undeniably a division among the circuit courts” on this issue, Dubin’s actions fell within the statute’s literal prohibition against “we[ing]without lawful authorization, a means of identification of another person.

In his brief in opposition, the government argues that the decision “does not involve any division of authority” and that the case would be a “poor vehicle for considering the question presented”. We should have a better idea of ​​what the court thinks on Monday. Given the Supreme Court’s track record in such cases, if the Court allows review, it could be a scary day for the government.

Until next time, stay sure!

New list

Dubin v. United States, 22-10
Publish: If a person commits aggravated impersonation each time they mention or otherwise recite someone else’s name while committing a predicate offence.
(back on sale after the October 14 conference)

Return Relishes

Anthony v. Louisiana, 21-993
Problems: (1) Do the presumption of innocence, the right to confrontation, and the right to a fair trial permit a court to permit the grand jury prosecutor to testify and testify regarding the prosecutor’s belief of credibility the alleged victims, the guilt of the accused and the strength of the State’s case; (2) whether the admission of such inculpatory evidence constitutes structural error or, conversely, is subject to harmless error scrutiny; and (3) whether a reviewing court’s finding that the evidence at trial supports the accused’s beliefs, even excluding the grand jury prosecutor’s testimony, satisfies the state’s burden of proof. an error that is harmless beyond a reasonable doubt.
(rescheduled before the June 16 conference; on sale after the June 23, June 29, Sept. 28, Oct. 7 and Oct. 14 conferences)

Buffington vs. McDonough, 21-972
Problems: (1) If the doctrine of Chevron USA, Inc. v Natural Resources Defense Council, Inc. allows courts to defer to the Department of Veterans Affairs’ interpretation of a law designed to benefit veterans, without first considering the pro-veteran canon of interpretation; and (2) if Chevron should be cancelled.
(postponed before conferences on May 12, May 19, May 26, June 2, June 9, June 16, June 23; relisted after conferences on Sept. 28, Oct. 7, and Oct. 14)

Khorrami vs. Arizona, 21-1553
Publish: Whether the Sixth and 14th Amendments guarantee the right to a trial by a 12-person jury when the defendant is charged with a crime.
(back on sale after the conferences of September 28, October 7 and October 14)

Juno Therapeutics, Inc. v. Kite Pharma, Inc., 21-1566
Iissue: The relevance of the “written description of [an] invention” is measured by the legal standard of “in full, clear, concise and accurate terms enabling any person skilled in the art to make and use it” in 35 USC § 112(a)or by the Federal Circuit test that the “written description of the invention” must demonstrate the inventor’s “possession” of “the full scope of the claimed invention”, including all “known and unknown” variations of each component.
(back on sale after the conferences of September 28, October 7 and October 14)

Shoop vs. Cunningham, 21-1587
Problems: (1) Did the United States Court of Appeals for the 6th Circuit err in granting habeas relief based on an alleged misapplication of its own circuit precedent under the Anti-Terrorism and Effective Death Penalty Lawwhich generally prohibits courts from awarding habeas relief to state prisoners, but waives that ban with respect to prisoners in custody due to a state court ruling that was “contrary to, or involved an unreasonable application of a clearly established federal law, as determined by the Supreme Court of the United States”; and (2) if, where the requirements of a federal evidentiary hearing are otherwise satisfied but Federal Rule of Evidence 606(b)(1) prohibited from considering the only evidence in support of an evidence hearing, a court must hold the hearing regardless.
(back on sale after the conferences of September 28, October 7 and October 14)

Chinn vs Shoop, 22-5058
Problems: (1) If a claimant who raises a claim under Brady v. Maryland must establish that it is more likely than not that he was harmed by the government’s suppression of favorable evidence; and (2) whether the judgment of the United States Court of Appeals for the 6th Circuit requiring the petitioner in this case to establish that it was more likely than not that the government’s suppression of favorable evidence had aggrieved should be summarily annulled.
(back on sale after the conferences of September 28, October 7 and October 14)


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