Courthouse Steps Oral Argument: Dubin v. United States

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Chayila Kleist:  Hello and welcome to The Federalist Society’s webinar call. Today, February 27th, 2023, we’re excited to host a post oral argument Courthouse Steps on Dubin v. United States, which was argued earlier today before the Court.

 

My name’s Chayila Kleist, and I’m an assistant director of practice groups here at The Federalist Society. As always, please note that all expressions of opinion are those of the expert on today’s call as The Federalist Society takes no position on particular legal or public policy issues. Now in the interest of time I’ll keep my introduction brief, but if you’d like to know more about our speaker, you can access his impressive full bio at fedsoc.org.

 

Today we are fortunate to have with us John Richter, who’s a trial investigations partner at King & Spalding in the special matters investigation practice group. Mr. Richter previously served as the acting assistant attorney general in charge of the criminal division at the U.S. Department of Justice and as the U.S. Attorney for the western district of Oklahoma. Now, as a last note before we get started, throughout the panel if you have any questions, please submit them via the question and answer feature which you can find at the bottom of your Zoom window so that we have access to them when we get to that portion of today’s webinar. With that, thank you all for being with us today. Mr. Richter, the floor is yours.

 

John C. Richter:  Thanks, Chayila. So the Court heard oral argument today in the case of Dubin v. United States. This is a case involving a federal criminal statute, Title XVIII U.S.C. Section 1028, which portion of which provides for aggravated identity theft a two year sentencing enhancement. And the statute defines aggravating identity theft as the knowing transfer, possession, or use without lawful authority of a means of identification of another person during and in relation to certain predicate offenses. And the certain predicate offenses are basically any fraud statute; a firearms statute, Title XVIII U.S.C. Section 922(a)(6), which relates to making false statements in connection with the acquisition of a firearm; and certain immigration citizenship and nationality type predicate offenses.

 

The question presented for the Court was whether a person commits aggravated identity theft any time he uses someone else’s name while committing the predicate offense. And in this case, the Dubin case, involved the submission of a claim for reimbursement to the Centers for Medicare and Medicaid Services for a service that was not provided in the manner in which the claim claimed. In particular, the case of Dubin involved a psychologist in which the claim at issue that was submitted certified that the work for which the claim was being submitted for government payment was performed by a licensed psychologist when in fact it had been done by not a psychologist. And as a result of which the claim was deemed to be a false claim.

 

The government brought a healthcare fraud offense, indicted him for healthcare fraud and in addition indicted him for aggravated identity theft. And he was convicted, and the conviction was upheld in the Fifth Circuit.

 

The oral argument today was very interesting for a few reasons. First, the Court -- the petitioner, represented by Professor Jeff Fisher, basically argued that the Fifth Circuit’s decision stretched the statute too far. Basically he argued that Dubin had permission for the -- so-called Patient L’s authority to make use of that patient’s name in submitting a claim and so that there was no actual misrepresentation or use of the name without lawful authority. Rather, there was simply -- and so therefore the name and the use of the identity was only incidental to the commission of the offense.

 

Basically, the argument that was made by the petitioner was that in the context of this particular statute, given that there is an underlying predicate federal fraud offense in which the medium sentence nationwide at this point in time for a federal fraud offense is about 12 months and that about 12 percent of all convicted offenders for federal fraud offenses receive probation, that the transformation through the construction of this interpretation of this statute as argued by the government in this appeal would transform every fraud prosecution into an aggravated identity theft prosecution, thereby meaning that every single fraud prosecution that would have the opportunity for a two year mandatory minimum sentence which applies to aggravated identity theft as compared to, say, wire fraud, healthcare fraud, mail fraud, bank fraud where it’s a range but there is no mandatory minimum sentence.

 

The Court was very active today in its questions. I think the challenge for all the justices was the interpretation of the language of the aggravated identity theft statute, which is far from clear. It uses phraseology that is pretty broad in nature.

 

Justice Thomas led the questioning. Obviously, Justice Thomas, who’s become much more active on the bench than historically he was in terms of asking questions -- and he led off by asking whether Mr. Dubin, the defendant in this case was authorized to use Patient L’s identity to which petitioner’s counsel said yes, he was authorized to use for the transaction. The only problem was that the underlying services were provided. They just were not provided by the licensed psychologist. They were provided by another lesser licensed practitioner.

 

Justice Thomas used an analogy of well, wait a minute. If I drop off my Porsche -- he was clear then to make sure that he doesn’t actually have a Porsche -- and when I drop it off at valet I drop it off and give them general authority to move my car. But they’re not authorized to drive it around town. So then there was some back and forth about that.

 

Justice Jackson then wanted to pursue a hypothetical about a waiter in which a waiter is given a credit card, and instead of just the food that was ordered by the patron the waiter then charges additional things on the card. Interestingly enough, I would’ve thought that in that instance the analogy would’ve been -- that the petitioner’s counsel would’ve said that that was not lawfully authorized and therefore was without lawful authority. But instead he seemed to concede that in fact that analogy would be actionable under the aggravated identity theft.

 

Justice Sotomayor pursued another analogy involving the waiter, in this case a Tomahawk steak rather than a sirloin steak. Point being is they went back and forth with the justices using a lot of hypotheticals that had little to do with the actual facts of the case involving Mr. Dubin. Justice Sotomayor also then posed a couple of -- another hypothetical about well, what if instead of a claim for psychological services as here it was a claim for, say, cancer services. Would that be outside the lawful authority, notwithstanding that it was a patient? And again the petitioner’s counsel answered that he believed that that individual could be prosecuted for fraud but potentially not for aggravated identity theft.

 

There was then some additional argument on a number of other cases. Justice Kagan raised questions about the use and how this might apply to state fraud statutes and underlined since fraud as defined as predicate in 1028, is not limited just to federal fraud. And there was back and forth on this in relation to language and whether that meant instrumental or incidental.

 

They then had some back and forth during argument about whether the caption which lists identity theft as the caption -- what effect such a caption might have. And I think the petitioner’s counsel handled that fairly adeptly by saying that the caption certainly can have some influence but that you didn’t have to rely on the caption to reach a conclusion consistent with the petitioner’s position, that really the conduct by Dubin is at the heart of what Congress intended for healthcare fraud but not for obviously aggravated identity theft.

 

One of the key points that the petitioner’s counsel made a number of times is how the application of a two year mandatory minimum to every federal fraud case would change drastically the plea bargaining position and leverage in fraud cases and therefore the fact that this couldn’t have been what Congress intended in passing this statute. There was back and forth between the meaning of the broader portion of the statute that deals with identity theft, which is basically knowingly possessing or used in connection with unlawful activity and does not carry a two year mandatory minimum with the subpart that involves aggravated identity theft. The justices went back and forth on whether this aggravated identity theft is essentially a subset of the broader identity theft statute or whether it essentially is an enhancement.

 

And what the petitioner was arguing is that he didn’t think Congress would’ve wanted to transfer every fraud case to a mandatory minimum. And there was a lot of discussion about a case called United States v. Michael in which Judge Jeffrey Sutton out of the Sixth Circuit sought to define in his mind how this statute should be interpreted, that if you lie about who received the services, then that would fall within the aggravated identity theft statute. If however you lie about when or what or how the services were rendered under Judge Sutton’s formulation following Sixth Circuit jurisprudence, this statute would not apply in the case of Dubin where services were provided. It was an actual patient of the psychologist. But the psychologist did not provide the services.

 

There was a question by Chief Justice Roberts about whether the fact that there had been -- what if this was overbilling for, say, three hours and the patient had theoretically, say, eight hours of insurance coverage? Was the deprivation of that extra -- the loss of that time material to interpreting this statute? Petitioner’s counsel handled that by basically saying that all fraud obviously involves potential harm but that the harm isn’t textually based and therefore really is not for consideration.

 

In terms of the -- there was then a lot of back and forth about the way in which the statute ought to be interpreted. What I think stood out in this case was how each of the justices came at different ways of interpretation in seeking to question counsel as to how they ought to read the statute. And I think -- and what seemed very clear was that each of the justices were thinking about this case and interpretation principles not just for this case but also for how such interpretation principles might set a precedent for use in other cases that will be coming down the road.

 

So for example they talked about vagueness. They talked about the rule of lenity. They talked about constitutional avoidance. And then obviously they talked about various other statutory construction and interpretation principles that they thought ought to be one or more of the ways in which they could interpret this statute.

 

I did learn a new rule of construction, and there’s some legal Latin, ejusdem generis rule, which is a rule of construction that follows specific words -- or general words in a statute that follows specific words in a list must be construed as referring only the types of things identified by the specific words. Justice Coney Barrett raised the question as to whether that principle applied. And there was some back and forth about that.

 

I think ultimately there seemed to be -- and then Justice Gorsuch very much got into and raised questions and concerns about federalism and the concern that by applying this literally to every fraud case it would swallow up essentially every state fraud case and used the analogy that if he goes and orders salmon and was told that it was fresh when he was at the restaurant and in fact it was actually frozen that this in theory could be deemed to be fraud. And because they used the name of the person in charging the credit card, this could deem to trigger an aggravated identity theft conviction and a two year mandatory minimum. Obviously he was concerned that all state misrepresentations would become federal offenses.

 

So the back and forth between the justices I think was very interesting in that regard, and I think for the most part the justices seemed to be leaning, a majority of them, in the direction of trying to find a way to reverse the Fifth Circuit in the questioning of the petitioner’s counsel and seemed fairly supportive of him during most of the argument. They were talking about the title. They were talking about the rule of lenity. They were talking about statutory constructions and canons. And they were talking about constitutional avoidance and federalism.

 

The response by the Department of Justice -- I think in contrast the justices gave the Solicitor General’s Office a fair bit of trouble during the oral argument. The lawyer for the Department of Justice talked about the waiter example and acknowledged that he appreciated that this particular case was unattractive given that the underlying healthcare fraud in which the aggravated identity theft conviction applied was one claim for $338 and that it was a small fraud and tried to make the argument that you still have to prove scienter. You have to prove the knowing intent. You’d have to prove it beyond a reasonable doubt.

 

Gorsuch certainly popped in and said that anytime anyone overbills it would violate the statute under that construction and again reinforced the federalism and does this really give fair notice to persons that they’re violating federal law. The justices again repeated as they went and questioned counsel for the government about how their rules of interpretation might apply, Gorsuch emphasizing the federalism problem.

 

There was a funny exchange in which they asked him whether it would apply, and he said, well, it would because interstate commerce applied. The Department of Justice’s attorney seemed to acknowledge the breadth of the commerce clause jurisprudence at the Supreme Court level and federal level but seemed to be blaming the Supreme Court for it, which certainly got some laughs and wry smiles from the Court. But Justice Gorsuch obviously was very concerned about notice and federalism.

 

Justice Coney Barrett was very concerned about due process because of the mandatory minimum. She saw this as a more serious offense. And yet it didn’t seem that there was more egregious conduct. And here of course with Mr. Dubin it was only $338 of alleged fraud that constituted a healthcare fraud conviction that was the predicate offense for a two year mandatory minimum. And as Justice Coney Barrett acknowledged the -- or made the point that in response to some earlier questioning by Justice Thomas the government’s counsel acknowledged that this was teeny, teeny fraud, which I think is a very technical way to describe this matter. But to the credit of counsel for the department, and notwithstanding the pressure he was putting on, he did his best to push back.

 

I think at the end of the day Justice Sotomayor, Justice Kavanaugh, Justice Coney Barrett, and Justice Gorsuch pressed him all very hard. Justice Gorsuch finally boxed government’s counsel in and said, well, if the Court were to reject the government’s theory, what kind of fall back rule would the government support? In this case the government’s counsel urged that they adopt the Sixth Circuit reasoning, most recently as described by Judge Sutton, and said that the Sutton test, which really turns on the distinction between if the name about who received the service was instrumental to the crime, then it would qualify for aggravated identity theft using the name. If on the other hand it was simply the use of the name incidental to a fraud about how or when the award for the claim was done, then it would not qualify for aggravated identity theft.

 

There was again some back and forth by both Justice Coney Barrett and by Justice Jackson who were very concerned about the implications it meant of this two year mandatory minimum in what are effectively or potentially cases that would not be so serious. And likewise, Justice Kavanaugh weighed in with regard to Judge Costa’s opinion in the underlying Fifth Circuit case that courts should not assign breathtaking scope where a narrower interpretation is possible. Justice Kavanaugh was asking government’s counsel about fair notice, about not entrapping the unwary, and asked why this case shouldn’t fall in that jurisprudence. Government’s counsel sought to make a distinction that said, well, unlike other cases, this involves predicate crime that’s already defined and routine conduct. In other cases it was just routine conduct by itself without a predicate.

 

I think that’s what’s interesting, except that of course to the degree you fold the aggravated identity theft into basically every fraud case nationwide, it sort of collapses and makes every fraud case a two year mandatory minimum at the federal level. And that seemed to be what the Court was concerned about.

 

Following government’s counsel, petitioner’s counsel had opportunity for rebuttal. And he emphasized it in relation to aspects of the offense and urged the adoption of Judge Sutton’s approach, basically saying that if it’s a lie about the nature of the claim and not about who received it, then it’s not a violation of this aggravated identity theft statute. And with regard to “with lawful authority,” again it was designed to basically say it's got to be a set of circumstances in which essentially the name has been taken from somebody without their permission.

 

In terms of the back and forth here, I think he finally closed with the real world consequences that petitioner’s counsel believed would apply here. And that was that every simple fraud case would obviously be charged with aggravated identity theft or at least at a minimum there would be the threat of it, that that would change obviously plea bargaining, gain quicker pleas in federal fraud cases, that it would be extraordinarily strong remedy that was not intended by Congress at the time that this statute was passed.

 

The matter was then submitted for consideration. And obviously now the Court will be meeting and determining who will write the opinion and the various positions that each of the justices will take. I think from reading the tea leaves I think the majority of the justices -- certainly the majority of the justices were interested in reversing the Fifth Circuit and finding a way to narrow the application of the aggravated identity theft federal statute. But each of them I think was struggling with the proper means to effectuate that end. And I think what rule of interpretation should be applied in the circumstances, all mindful that whatever rule got applied here might very well then be used as precedent to apply in another situation in another case with other circumstances where the application of that rule might effectuate an end that particular justice would prefer not to see or might prefer to see depending on the nature.

 

So an interesting and lively oral argument today in Dubin v. United States. I think government counsel had an uphill battle going into this knowing that the Court had taken it from the Fifth Circuit on cert. And it played out that way. Petitioner’s counsel clearly had the easier, the more friendly bench today. But I think the struggle will be in writing the opinion, and the struggle will be in the breadth ultimately of what the opinion decides as opposed -- and whether in fact they decide that they want a fairly narrow interpretation in their holding and a remand to the lower courts to further develop and construe the case law as it may apply to other fact patterns that may come before the Court. So, Chayila, that’s what I’ve got for now on this matter and happy to answer any questions you or members of our audience may have.

 

Chayila Kleist:  Absolutely. Well, first off, thank you for that summation of the case, the facts, sort of how oral argument went before the Court. It certainly helps lay the stage as we’re thinking through sort of the issues at play and the questions it may be posed. As a reminder to our audience, if you have questions, please submit them via the question and answer feature as we’re now transitioning to that section of today’s webinar. But as the audience is submitting questions, I actually do have a couple of my own that I’d love to pose as we get started.

 

Before we get into some of the possible outcomes and ramifications of the case depending on the ruling of the Court, I’d love to start with some of the definitions at issue and how they were treated in oral argument, especially since you mentioned that the text was such a big part of what was at issue during oral argument. I know during the lead up to the Court accepting this case in sort of the lower court levels the nature and definition of the term “use” was a fairly big issue. You covered this a little in your summation of the facts, but why is the definition of the term “use” so important in this case? And did it continue to remain equally as important in oral argument today?

 

John C. Richter:  Yeah. Well, obviously “use” is a very broad term, and I think where they’re struggling is how to narrow the construction so that -- because in this case, for example, and in every case involving a submission of a claim to the federal government for payment wherein there was fraud, particularly in the healthcare context that this case involved, you would have to use a patient’s name. So the form that gets submitted, the 5800 form, will have the patient’s name, and it’ll have other identifying information for the services that were provided by the healthcare provider.

 

In this case of course the question is does that mean that every healthcare fraud offense where you list a patient’s name and submit it to the federal government is not only potentially eligible for healthcare fraud but also for aggravated identity theft? And where the Court was struggling is, and I think in oral argument it was clear, that they didn’t see the means and neither did counsel for certainly the petitioner who was urging obviously a narrower construction -- see a means to limit the word “use” because it’s generally -- of course the name, quote, has to be used in every claim submitted.

 

So they looked for really in relation to and without lawful authority as the terms that could be used to narrow potentially the construction of the statute, the interpretation of the statute in order to reach a conclusion in which aggravated identity theft would not apply to each and every wire fraud, mail fraud, bank fraud, healthcare fraud case that gets brought not only at the federal level but would not swallow on top of that essentially the entire corpus of state fraud offenses, at least at the felony level.

 

So while obviously the word “use” is an important key part of the statute, I think they focused really more on these other elements in today’s oral argument because they saw those as a better vehicle for narrowing. And I think the government’s counsel was forced to sort of take the position and did -- the government’s taking the position that the statute does apply in all these fraud cases but spent most of his time trying to parry the questions and leading assertions in the form of questions by justices who were testing out the limits of the government’s position.

 

Chayila Kleist:  Got it. Continuing on the train of thought of definitions, is it just a question whether or not sort of aggravated identity theft does apply in this situation? Did both parties put forward definitions of identity theft? And if so, did either of those definitions depart from the way identity theft has been defined both in principle and in practice?

 

John C. Richter:  Well, I think that’s where the Court and the advocates were grappling. Everybody knows -- I think at some level the sense is that at the time the statute was passed the thinking was of the paradigm that was not present in the Dubin case. Everybody was thinking of the situation in which literally your personal information is stolen from you, taken from you, and used by someone else completely without your authority for their own gain. And clearly the aggravated identity theft statute would apply in those kinds of circumstances.

 

What made this case hard, and makes this case hard for the Court, is that in this case the claim did not involve someone who was not the patient of the psychologist. The person was a patient. The patient did receive services. The only question was is whether those services were provided by a licensed psychologist, thereby entitling a higher payment than in fact the amount that was paid here.

 

In this case, the services were provided by a different licensed practitioner but who was not a psychologist, and so the amount of payment was less, to the tune of $338. And so I think what tugged at the heartstrings and makes this case a hard case is the fact that I don’t think very many people would believe that in this day in age that a $338 false claim should subject a person automatically to a two year mandatory minimum sentence in federal prison. And I think that juxtaposed with the struggle that the lower courts have had and the differences that they’ve had has led obviously to the Court granting cert and grappling with this today.

 

Chayila Kleist:  Got it. We have a couple comments/questions from the audience, so I’ll go there before pivoting back. Does the interpretation laid out by the government in this case leave hospitals and practitioners liable for insurance billing fraud if they don’t identify properly the medications or procedures they put forward? And what does that mean for sort of patients and clients, if anything?

 

John C. Richter:  Well, I think what the Court was grappling with here of course obviously any time a party submits claims to the federal government that are inaccurate it raises the risk of a potential false claim or fraud investigation. What the Court was grappling here is whether in addition to the question of an underlying fraud investigation, whether of a civil variety or a criminal variety or an administrative variety, say, through a Medicare administrative contractor, is when the aggravated identity theft statute would apply in addition to those underlying fraud, civil, and criminal statutes.

 

So of course when inaccurate information is provided to any insurance company, whether a commercial company or a government insurer, it necessarily raises questions about whether it was an honest mistake or whether there was an intent to defraud. And therein lies and the facts therefore matter in terms of what is found and the volume and the nature of the problems with the particular claims that have been submitted.

 

But what the Court noted here was -- and what the Court was struggling with is since any claim for payment necessarily is going to relate to a particular patient and that patient necessarily -- that patient’s name will be on such a claim to an insurer whether the government or otherwise, the commercial insurer, whether that aggravated identity theft applies in every one of those cases as was urged by the government or whether it would only apply in circumstances in which the name was instrumental to the alleged fraud, meaning of course if a provider submitted claims for a fictitious person, clearly even the petitioner in this case would say that the aggravated identity theft statute would apply in addition to the underlying healthcare fraud or False Claims Act statutes.

 

In contract, if it was a real patient for real services but those services were described in error or in a manner that was wrong or false and intent to deceive could be -- the requisite scienter and mens rea could be established beyond a reasonable doubt, the idea would be that a fraud might’ve occurred and might be able to be proven. But the name was simply incidental to the claim, not instrumental to it. And therefore because it was the how, what, and when that related to the claim, the claim should not allow the government to add an aggravated identity mandatory minimum charge to its indictment.

 

Chayila Kleist:  Got it. Thank you. Another question from our audience, is there a statute of limitations on these sorts of crimes? Is it two years, for example, or until the crime’s indemnified? And I’ll add does that affect the way the Court might be thinking about this?

 

John C. Richter:  There was certainly nothing in the argument with the papers submitted to the Court that makes me think that the statute of limitations in particular is driving the decision making about this statute. Candidly, I have not looked. I would assume that the general federal five year statute of limitations would apply to this -- for criminal statutes would apply to this particular Title XVIII offense. And obviously that would start running from the discovery of the offense and/or the conspiracy around it.

 

So one of the ways the government often gets around five year statutes of limitation for substantive offenses is by charging a conspiracy where if you’ve got multiple claims, over time you can take basically the latest claim in time, wrap up earlier claims underneath the scope of the conspiracy, use that last claim as the hook for the running of the five year statute, and import the other claims as part of the conspiracy to prove the offense in hopes of ultimately proving the total amount of the actual or intended loss.

 

Chayila Kleist:  Got it. Moving somewhat to the possible ramifications of this case depending on how the Court rules, you mentioned there was a fair amount of discussion around what other crimes might be charged or have this tacked on and be treated as prefatory crimes in this case. There were a lot of crimes that seem -- at least of the white collar variety that seem to have been deemed as possibly they could be charged. Is there sort of a perspective on how many would actually -- what this would actually change as regards the prosecution of white collar crimes moving forward?

 

John C. Richter:  There was a lot of discussion about what the practical ramifications are. I think the government’s counsel was seeking to minimize the potential effect, and petitioner’s counsel was seeking to maximize the potential effect in the argument. At a practical level, I would expect given that I deal with this in my practice every day that to the degree that there would be fraud claims, and if the construction of the statute weren’t as broadly drawn as the government suggested, that we would see a far broader use of the aggravated identity theft by the government in fraud cases around the country.

 

Obviously any time a case makes its way to the United States Supreme Court, it gets higher visibility, which would mean that more prosecutors pay attention to it. And the ones that haven’t figured it out yet would therefore recognize, hey, I’ve got a two year mandatory minimum. I can basically threaten to impose that, or we could cut a deal in which the mandatory minimum doesn’t apply. And you can take your chances on a range of sentences that might obviously involve something less than two years in federal prison or -- and of course this two year statute is enhancement not only as a mandatory minimum but is an add-on. So if you got a lengthier period of time because of the underlying fraud, it would add two years.

 

In my experience as a prosecutor and as a defense counsel, the simple reality is the more weapons the government has to bring to bear in terms of duration of offenses and any time a government has a mandatory minimum or a sentencing enhancement that it can bring to bear, that provides greater leverage for negotiating purposes and plea bargaining. And it’s a common technique to note for defense counsel or a defendant that there are certain other offenses that could be charged and let them know that but that for early cooperation an acceptance of responsibility to a different offense, there may be a deal they can cut that doesn’t involve the application of that mandatory minimum.

 

How that works in any particular time is somewhat dependent on the exercise of prosecutorial discretion by federal prosecutors as is supposed to be influenced and governed by attorney general policies involving the charging of criminal defendants. There’s a bit of a yin and yang between Republican and Democratic administrations as to exactly where that line ought to be drawn. But suffice it to say that having a mandatory minimum certainly provides greater leverage. And that certainly was the petitioner’s point, which was that you would see this being used in run of the mill fraud cases far more than Congress ever thought when it passed this statute.

 

Chayila Kleist:  Got it. Continuing on in that vein of sort of what the possible ramifications are if the Court upholds Dubin’s conviction, was there discussion or is there the possibility that this case would affect crimes and charging a prosecution beyond the traditionally white collar arena?

 

John C. Richter:  Well, obviously for the aggravated identity theft, the predicate crimes as I noted are threefold: fraud, one offense under 18 U.S.C. §922 related to firearms, and immigration, citizenship, and nationality related offenses. And again, the question is going to be -- and obviously in the immigration context then presumably any kind of immigration fraud is going to be affected by the ruling in this case. So if the Court does rule and seek to narrow on the application of this statute, it will apply not only in fraud cases generally speaking but in these other classes of cases that are noted in the predicate offenses under the statute.

 

Chayila Kleist:  Got it. Thank you. Switching to the other hypothetical, what are the possible ramifications if the Court sides with Dubin as you mentioned may be possible? Could such a ruling limit the capacity of prosecutors to go after crimes in this vein, or are there other ramifications that might occur?

 

John C. Richter:  Well, undoubtedly if the Court sides with Mr. Dubin, whether it’s through a definitive ruling construing the statute or a ruling that in some way remands it to the Fifth Circuit for further consideration consistent with the Court’s opinion, however it gets handled undoubtedly it will obviously make a bit of a difference for Mr. Dubin in that there’s a better chance that he will not have two years tacked onto the existing sentence that he received for the underlying other fraud convictions that are not before the Court in his cert petition.

 

With regard to other potential individuals who will be charged or have been charged in the federal courts, obviously how this case gets -- how the Court ends up construing the statute and interpreting it is going to govern every federal case out there and is going to govern every time a federal prosecutor is thinking about this and whether aggravated identity theft applies or doesn’t apply in the context of a set of circumstances in which this enhancement might have formerly been thought to have applied. So I think those are the ramifications.

 

And likewise, as is often the case when the Court makes a ruling and applies principles of interpretation to a criminal statute, both the government and the defense bar will look very hard at how the Court applied those rules of interpretation to see how those rules of interpretation might also be deployed with other statutes in other circumstances as various cases are being brought and charged by federal prosecutors and as defense counsel are looking for ways to challenge statutes and say that they’ve been misapplied or inappropriately applied or should not apply to a particular set of circumstances for a particular defendant.

 

Chayila Kleist:  Thank you. Taking a question from the audience, how does the ruling in this case affect the capacity of those who have had intentional improper occurrences, by which I think they mean intentional fraud committed against them or in their name? How does it affect their capacity to have remedy, if at all?

 

John C. Richter:  Well, identity theft in its purest variety, meaning if someone has effectively taken someone’s identifying information and used it for their own purposes entirely out of whole cloth, clearly remains unlawful under this statute. What the Court was grappling with in the Dubin case is a situation in which someone has been treated by a healthcare provider, that provider actually provided real services. So the person was truly a patient and obviously gave their name to the provider to submit a claim for payment for the services.

 

The question is whether that name by itself and the use of that person’s name in the context where they had given permission to submit a claim on their behalf when the claim itself is fraudulent -- the question is does the aggravated identity theft statute apply or not. And of course what the Court was grappling with is a bit of the when -- what does “with lawful authority” mean, what does “in relation to mean,” and “in relation to the offense” mean and all towards the end of trying to determine whether there is a reasonable means to construe the statute more narrowly or not.

 

Chayila Kleist:  Thank you. Appreciate it. Two last questions, the first, you mentioned there’s at least one case that came up in oral argument that is perhaps precedential in this case or determinative. Is there precedent that will be affected by the way the Court rules in this case, and what sort of might the ramifications be?

 

John C. Richter:  Well, sure. Any time you’ve got a split in authority at the courts of appeal level, which we had in this matter, the ramifications of a Supreme Court decision are supposed to resolve the circuit splits. Whether it will ultimately resolve the circuit split depends on the nature of the actual opinion issued by the Court. But the Court is certainly going to -- assuming the Court does rule -- will necessarily have to be internalized in the jurisprudence of each of the courts of appeal.

 

So in this case, obviously the Fifth Circuit court of appeal’s precedent in the Dubin en banc decision and panel decision at some level will have to be reversed if the Court sides with Mr. Dubin. If it sides with the United States, it won’t. And then you’ll have a rule that applies nationwide. So yes, the lower courts necessarily any time a statute is constructed have to take that into account and must follow the Supreme Court’s ruling to the best of their ability, their sworn duty to do so.

 

Chayila Kleist:  Well, thank you. And your mention of the nature of the decision tees up my last question pretty perfectly. You mentioned that if you had to guess there’s likely to be a reversal of the Fifth Circuit’s decision in this case, and that’s what’s actually going to sort of be the place where the rubber meets the road is sort of how the justices get to that decision. So following on on that, do you have a read, either a general or unsolidified one, as to what those frameworks may be and how the various members of the Court will break out on the issue?

 

John C. Richter:  Yeah. I’m going to take a bit of a pass on prognosticating --

 

Chayila Kleist:  Fair enough.

 

John C. Richter:  -- who does what when. I think it was pretty fair to say that Justice Jackson, Justice Sotomayor were very troubled by the outcome in the Fifth Circuit and were asking questions and pressing counsel very hard to try to ascertain how they might -- what the bases might be. I think a number of the more recently appointed justices, Kavanaugh and Gorsuch, likewise—and Coney Barrett—seemed to all be interested in exploring ways in which the case might be turned around.

 

Justice Alito had a few questions. The chief justice had a couple. Justice Thomas had a couple. Not clear exactly where they came down. They didn’t show their hand quite as much as others. Although, you’ve got to be careful when you listen to questions from judges and justices. Sometimes they may come across as being completely in your court because they ask questions that seem to be very friendly to you, and ultimately they are persuaded by other things as they consider the case and its ramifications after the case has been submitted for decision.

 

Likewise of course, the Court will have had its conference to discuss the matter. Opinions get circulated amongst the justices to sign onto. And judges then will have an opportunity to agree or disagree with one another and then decide what they can agree to or not agree to. So it’s really always difficult to truly prognosticate very successfully. But certainly the tenor today is we can say the petitioner counsel had a friendly bench at least in the types of questions and the arguments -- the questions that were asked of him than government’s counsel did.

 

 

Chayila Kleist:  Fair enough. Well, we’ll wrap it there with no more questions from me or the audience. So on behalf of The Federalist Society, thank you so much, Mr. Richter. Really appreciate the benefit of your time and expertise today and thank you to our audience for joining and participating at the end of a Monday. We welcome listener feedback at email at [email protected]. And as always, please keep an eye on our website and your emails for announcements about other upcoming virtual events. With that, thank you all for being with us today. We’re adjourned.