US to Examine Scope of Identity Fraud

Previously in ID & Secure Document News™ (see IDN August 2022) we have chronicled how different legal cases involving identity fraud in the US have thrown up varying outcomes. This can partially be explained by jurisdiction differences in the US federal system, but there is another element to this, as ID fraud can be considered as an aggravating crime as well as a crime in its own right.

Now, as reported in Courthouse News Service ¹, the US Supreme Court has agreed to examine what constitutes identity theft in a fraud after criminal defence lawyers say it is over criminalised by the federal government.

The case that triggered the Supreme Court’s intervention was of a managing partner at a mental-health testing company (we’ll call him DD), who was convicted of health care fraud for filing a phony Medicaid reimbursement form.

Because DD used a patient’s name when filing a false claim, the government brought charges for identity theft as well. A jury found DD guilty of health care fraud and identity fraud and sentenced him to three years in prison. DD then petitioned the high court, asking if aggravated identity theft can occur anytime someone else’s name is used while committing a crime.

Congress created the Identity Theft Penalty Enhancement Act ² in 2004 to crack down on the growing problem of identity theft. The statute does not cover identity theft alone but rather when it occurs during the course of someone using another person’s personal data that involves fraud or deception. This statute holds a mandatory two-year sentence that must be stacked on top of the original felony.

‘The reach of the aggravated identity theft statute is also extremely important,’ Jeffrey Fisher, an attorney for DD with the Stanford Law School Supreme Court Litigation Clinic, wrote in his petition ³. ‘The statute subjects an offender to a mandatory two-year prison sentence that must be stacked on top of the sentence for the predicate felony.’ 

Here, for example, the statute nearly tripled DD’s term of imprisonment.

DD claims his case is just one area where this rule is applied, and the Fifth Circuit’s ruling will have wide implications.

Fisher went on to argue that the ruling would apply to tax preparers, immigration attorneys, and anyone else convicted of submitting any form on someone’s behalf that contains a misrepresentation unrelated to the person’s identity.

The government argues that DD qualifies for the enhanced sentence and that, even if the court were interested in examining the question presented, this case would be a poor vehicle to do so.

‘Section 1028A prescribes a sentence enhancement for any person who, ‘during and in relation to [certain felonies], knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person’, US Solicitor General Elizabeth Prelogar wrote in the government’s brief ⁴.

Criminal defence lawyers – who filed an amicus brief ⁵ – say the ruling is a symptom of the federal overcriminalisation epidemic.

‘Alarmingly, this trend has only worsened and overcriminalisation now includes instances where, as here, the executive branch uses criminal provisions in specific laws in ways Congress never intended,’ Henry Asbill, a partner with Buckley LLP, wrote for the lawyers.

1 - www.courthousenews.com/supreme-court-to-examine-the-scope-of-identity-fraud/ 

2 - www.congress.gov/bill/108th-congress/house-bill/1731

3 - www.courthousenews.com/wp-content/uploads/2022/11/dubin-scotus-petition.pdf 

4 - www.courthousenews.com/wp-content/uploads/2022/11/dubin-oppo-scotus-brief.pdf 

5 - www.courthousenews.com/wp-content/uploads/2022/11/dubin-amici-scotus-crim-defenselawyers.pdf