Dubin v. United States (22-10)
argument 22-10Dubin v. United States
Supreme Court of the United States
1h 32m
8 speakers
8 chapters
transcribed 8 days ago
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What is the Supreme Court’s central question about the scope of aggravated identity theft in Dubin v. United States?
We'll hear an argument
this morning in Case 2210, Dubin v. United
States. Mr. Fisher?
Mr. Chief Justice, and may it please the Court, the Fifth Circuit's decision here stretches the aggravated identity theft statute beyond its breaking point. Overbilling Medicaid by $101 may provide fodder for a simple health care fraud prosecution. But as even the concurring judges below recognized, it does not meet any ordinary understanding of the term identity theft. Nor, for two independent reasons, does Mr. Dubin's conduct fall within the terms of Section 1028A. First, he did not use patient L's name in relation to his health care fraud offense. That statutory element requires that the use of the name be instrumental, not merely incidental, to the fraud. In a fraud case... Another way to think about that is it requires the name to be the who in the fraud, that is, misrepresenting who receives services, not merely how or when those services are received.
And Mr. Dubin's conduct falls only in the latter camp. Second, Mr. Dubin did not use patient L's identity without lawful authority. He had permission to use patient L's identity to bill Medicaid for psychological services, and that's precisely what he did. A contextual perspective confirms this analysis. The federal fraud statute, that's the predicate here, like the other federal fraud statutes, covers an enormously broad swath of conduct. And therefore, Congress has made prison time discretionary in those instances. And as the Federal Defender's Brief explains, the median sentence in a fraud case in this country is 12 months. 25% of offenders receive only probation. This statute, by contrast, requires a two-year mandatory minimum.
So all indications are what Congress was doing targeting a particularly egregious form of fraud, use of somebody's name through stealing it, misappropriating it, or impersonating the person, identity theft. But if the government is right, and if the First Circuit is right about how broad the statute is, what it would do is it would transform fraud prosecutions to having every one of them be essentially an aggravated identity theft prosecution too. And that would thwart Congress's careful design. The Court should reverse, and I'm happy to answer any questions the Court has.
Mr. Fisher, you said that Mr. Dubin was authorized to use the patient L's identity. Was Dubin authorized to use patient L's identity for this particular transaction?
Well, I think the best I can answer is yes, he was in the sense that he was authorized to to use patient L's identity for billing Medicaid. Well, I understand. That's a little
broader. Well, you could say that if you drop a car off at a valet, your Porsche, I don't have one, but if you had a Porsche, you'd be concerned about the use of it. And 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.
Well, I think, Justice Thomas, the only way to make sense of that element in the statute is to do it more generally. And I think there's a couple of reasons why that is so. And first, let me just start with the record in this case. The only thing the government ever argued in this case was that the unauthorized use was the fact that Mr. Dubin committed a crime with the name. That's at Joint Appendix page 31 and 32. And it's also at the PET app 66A and 67A. So the Fifth Circuit's theory and the government's theory was simply using the name to commit a crime is what makes it unauthorized use. And so When you turn to the statute, that cannot be right for two reasons. One is because the statute already requires a violation.
That's the predicate crime, and this would just make it superfluous. And second of all, remember, just as a matter of grammar, lawful modifies authority, not use. And so what the government would do, and I think with all due respect, what your hypothetical would do would ask whether the item was used lawfully, not whether the person had authority in a general sense.
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Chapters
8 chapters
1
What is the Supreme Court’s central question about the scope of aggravated identity theft in Dubin v. United States?
0:00–11:25
2
How does the argument distinguish between “instrumental” use of a name and incidental use in fraud cases?
11:25–23:35
3
What does “without lawful authority” mean under the statute, and how is it applied to the Dubin case?
23:35–34:30
4
How does the Sixth Circuit’s Judge Sutton heuristic separate “who” versus “how/when” in identity‑theft analysis?
34:30–45:03
5
Why do the Justices raise federalism concerns about applying the statute to state‑law offenses?
45:03–56:11
6
What vagueness and fair‑notice issues arise from a broad reading of the aggravated identity‑theft provision?
56:11–1:07:08
7
How does the mandatory two‑year minimum affect sentencing and plea‑bargaining for low‑level fraud?
1:07:08–1:19:08
8
What resolution or standard does the Court appear to be leaning toward for interpreting the statute?
1:19:08–1:32:28