Petitions of the week

The Petitions of the week section highlights a selection of certificate petitions recently filed in the Supreme Court. A list of all the petitions we monitor is available here.

In three of the last four Parliaments, the Supreme Court has rejected vast readings of white-collar criminal laws requested by the federal government. These decisions concerned behavior ranging from electronic and computer fraud to tax offences. This week, we highlight cert petitions that ask the court to consider, among other things, whether the government is correct in saying that a federal identity theft law broadly applies to anyone who simply says or writes the name of someone else by committing a crime, or rather requires intentional misrepresentation of identity.

Although most people associate identity theft with stealing a bank account, people use fake names when committing all kinds of crimes. In 2004, Congress passed sentencing improvements intended to crack down on this growing problem. When David Dubin allegedly overcharged Medicaid by $92 for psychological testing performed on a young patient at an emergency shelter in Texas, a federal prosecutor charged Dubin with health care fraud. The prosecutor also charged him with “aggravated identity theft” under the 2004 enhancements because Dubin wrote the patient’s name on the bill submitted to Medicaid for reimbursement. A jury convicted Dubin on both counts.

Dubin argued that the identity theft amelioration only applies when someone intentionally lies about their or someone else’s identity as part of a crime, which they don’t. did not do here. Noting that “this does not appear to be an aggravated identity theft case,” the trial judge nonetheless upheld the verdict under binding precedent in the United States Court of Appeals for the 5th Circuit. The judge expressed “the hope [he would] be knocked down on the head of aggravated identity. That hope failed by one vote, as confirmed by the full 5th Circuit by a vote of 9-1-8.

In Dubin v. United States, Dubin is asking the justices to clarify this issue, which he says has now divided nine of the 13 circuit appeals courts. The answer matters to Dubin because the bonus added two years to his prison sentence. But it also matters to the country, he argues, because according to the 5th Circuit’s reading, “the additional two-year sentence not only applies to most health care fraud commissions, but would also result in the tax preparers, immigration attorneys, and anyone else convicted of submitting any form on anyone’s behalf that contains a false statement unrelated to the person’s identity.”

A list of featured petitions from this week is below:

Momphard v. Knibbs
22-8
Problems: (1) Did the United States Court of Appeals for the 4th Circuit err in finding that a reasonable officer in the petitioner’s position would not have perceived a danger warranting lethal force? and (2) whether the 4th Circuit erred in defining the defendant’s clearly established constitutional right in a general sense by expanding cases with superficial similarities for the purpose of abrogating qualified immunity.

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.

Cuker Interactive, LLC v Pillsbury Winthrop Shaw Pittman, LLP
22-18
Publish: Whether a federal court adjudicating a question of state law in a bankruptcy case must apply the forum state’s choice of law rules or the federal choice of law rules to determine which substantive law governs.

McCutchen v. United States
22-25
Publish: If, for the purposes of the taking clause of the Fifth Amendment, a delegation of the general power of legislative regulation to an agency constitutes an inherent restriction in respect of any personal property which could then be subject to a prospective legislative rule, making the physical taking non-repairable property.