US Government Overreached in Identity Theft Case
The US Supreme Court has limited the reach of the federal Identity Theft Penalty Enhancement Act, rebuffing the Biden administration’s efforts to prosecute a man already convicted of Medicaid fraud with a separate charge of aggravated identity theft arising out of the same fraud case.
In November of last year, ID & Secure Document News™ reported that the US Supreme Court had agreed to examine what constitutes identity theft in a fraud, after criminal defence lawyers said it is over criminalised by the federal government.
Congress created the Identity Theft Penalty Enhancement Act 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 to enable a crime of fraud or deception. This statute holds a mandatory two-year sentence that must be added to the sentence for the original felony.
Court papers
In the 9–0 opinion in Dubin v. United States, the Supreme Court disagreed with the US Department of Justice’s argument that petitioner David Fox Dubin was automatically guilty under the Identity Theft Penalty Enhancement Act because a fraudulent Medicaid billing form included the patient’s Medicaid reimbursement number as a ‘means of identification’.
Dubin worked as a managing partner at a company in Austin, Texas, created by his father. Both men were convicted by a US district court for a scheme to defraud Texas’s Medicaid program.
Dubin’s attorney, Jeffrey L Fisher, a professor at Stanford Law School, said he was pleased with the Supreme Court’s ruling.
‘We’re grateful for the Court’s decision for Mr Dubin’s sake and are pleased in general that the Court has reigned in the prosecutorial overreaching the statute allowed,’ Fisher said.
‘The government’s theory was that the petitioner overbilled Medicaid for the services provided,’ which was sufficient for a conviction for health care fraud.
‘But the government was not content with that conviction. It also indicted the petitioner for aggravated identity theft’.
The government’s position was that Dubin violated the identity theft law because he placed a patient’s identifying information on the fraudulent Medicaid claim form.
Frozen not fresh
Justice Neil Gorsuch of the Supreme Court filed a separate concurring opinion which was sceptical of the government’s far-reaching theory, saying that under it, ‘every time I order salmon at a restaurant, and I’m told it’s fresh, but it’s frozen, and my credit card is charged for fresh salmon, that’s identity theft.’ According to Gorsuch’s written opinion, the problem with the Biden administration’s reading of the act is that under it almost every adult American would be an aggravated identity thief. ‘Whoever among you is not an ‘aggravated identity thief,’ let him cast the first stone,’ he concluded.
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