A post of this nature has appeared on these pages approximately twenty times.
Even though the current Supreme Court is often ideologically divided, the Court has shown remarkable consistency in recent years in rejecting (often times unanimously) overly expansive interpretations of a criminal statute by the Department of Justice.
This prior post highlighted two Supreme Court decisions from May and this post highlights a Supreme Court decision earlier this month.
Justice Sonia Sotomayor authored the unanimous decision in Dubin v. U.S. and the decision begins as follows:
“There is no dispute that petitioner David Fox Dubin overbilled Medicaid for psychological testing. The question is whether, in defrauding Medicaid, he also committed “[a]ggravated identity theft,” 18 U. S. C. §1028A(a)(1), triggering a mandatory 2-year prison sentence. The Fifth Circuit found that he did, based on a reading of the statute that covers defendants who fraudulently inflate the price of a service or good they actually provided. On that sweeping reading, as long as a billing or payment method employs another person’s name or other identifying information, that is enough. A lawyer who rounds up her hours from 2.9 to 3 and bills her client electronically has committed aggravated identity theft. The same is true of a waiter who serves flank steak but charges for filet mignon using an electronic payment method.
The text and context of the statute do not support such a boundless interpretation.
[…]
This type of prosecution is not uncommon. The Government has, by its own admission, wielded §1028A(a)(1) well beyond ordinary understandings of identity theft. One prosecution targeted a defendant who “made a counterfeit handgun permit” for another person, using that person’s real name and at that person’s request. United States v. Spears, 729 F. 3d 753, 754 (CA7 2013) (en banc). Another involved unlicensed doctors who violated the law by “issu[ing] prescriptions that their [actual] patients would then fill at . . . pharmacies.” United States v. Berroa, 856 F. 3d 141, 148, 155–156 (CA1 2017). There was also a prosecution involving an ambulance service inflating its reimbursement rates by “mischaracteriz[ing] the nature of the transports, saying that the patients had required stretchers when they had not.” United States v. Michael, 882 F. 3d 624, 628 (CA6 2018) (citing United States v. Medlock, 792 F. 3d 700, 705 (CA6 2015)). Yet another prosecution involved a defendant who “provided massage services to patients to treat their pain,” but improperly billed this “as a Medicare-eligible physical therapy service.” United States v. Hong, 938 F. 3d 1040, 1051 (CA9 2019).
Many lower courts have responded to such prosecutions with more restrained readings of the aggravated identity theft statute. The Fifth Circuit did not. To resolve the conflict in the courts below, this Court granted certiorari, 598 U. S. ___ (2022), and now vacates the judgment of the Fifth Circuit and remands.”
As stated in the opinion:
“This Court has “‘traditionally exercised restraint in assessing the reach of a federal criminal statute.’” Marinello, 584 U. S., at ___ (slip op., at 9) (quoting United States v. Aguilar, 515 U. S. 593, 600 (1995)); see also Arthur Andersen LLP v. United States, 544 U. S. 696, 703–704 (2005); McBoyle v. United States, 283 U. S. 25, 27 (1931). This restraint arises “both out of deference to the prerogatives of Congress and out of concern that a fair warning should be given to the world in language that the common world will understan[d] of what the law intends to do if a certain line is passed.” Marinello, 584 U. S., at ___ (slip op., at 4) (internal quotation marks omitted). After all, “[c]rimes are supposed to be defined by the legislature, not by clever prosecutors riffing on equivocal language.” Spears, 729 F. 3d, at 758.
Time and again, this Court has prudently avoided reading incongruous breadth into opaque language in criminal statutes. In Van Buren v. United States, 593 U. S. ___ (2021), the “far-reaching consequences” of the Government’s reading “underscore[d] the implausibility of the Government’s interpretation.” Id., at ___ (slip op., at 17). In Marinello, the Court rejected the Government’s reading of a statute about obstructing administration of the Tax Code that would have swept in the “person who pays a babysitter $41 per week in cash without withholding taxes,” as well as someone who “leaves a large cash tip in a restaurant, fails to keep donation receipts from every charity to which he or she contributes, or fails to provide every record to an accountant.” 584 U. S., at ___ (slip op., at 7). Nor was all such conduct innocent, as the statute required an individual to act “‘corruptly.’” Id., at ___ (slip op., at 8). Even still, “[h]ad Congress intended” to sweep so far, “it would have spoken with more clarity than it did.” Id., at ___ (slip op., at 7). In Yates, the Court held that the Government’s “unrestrained” reading would have turned a provision focused on “records” and “documents” into “an all-encompassing ban on the spoliation of evidence” that would “sweep within its reach physical objects of every kind,” including a fish. 574 U. S., at 536, 540 (plurality opinion). Had Congress set out to do so, “one would have expected a clearer indication of that intent.” Ibid.
So too here. The Government’s reading would sweep in the hour-inflating lawyer, the steak-switching waiter, the building contractor who tacks an extra $10 onto the price of the paint he purchased. So long as they used various common billing methods, they would all be subject to a mandatory two years in federal prison. To say that such a result is implausible would be an understatement. Because everyday overbilling cases would account for the majority of violations in practice, the Government’s reading places at the core of the statute its most improbable applications.
Finally, the Government makes a familiar plea: There is no reason to mistrust its sweeping reading, because prosecutors will act responsibly. To this, the Court gives a justas-familiar response: We “cannot construe a criminal statute on the assumption that the Government will ‘use it responsibly.’” McDonnell, 579 U. S., at 576 (quoting United States v. Stevens, 559 U. S. 460, 480 (2010)). “[T]o rely upon prosecutorial discretion to narrow the otherwise wide-ranging scope of a criminal statute’s highly abstract general statutory language places great power in the hands of the prosecutor.” Marinello, 584 U. S., at ___ (slip op., at 9). This concern is particularly salient here. If §1028A(a)(1) applies virtually automatically to a swath of predicate offenses, the prosecutor can hold the threat of charging an additional 2-year mandatory prison sentence over the head of any defendant who is considering going to trial.”
In a concerning opinion, Justice Neil Gorsuch stated:
“For many of the reasons the Court gives (and more besides), I agree that we must adhere to those more restrained offerings. The United States’ maximalist approach has simplicity on its side, yes; an everybody-is-guilty standard is no challenge to administer. But the Constitution prohibits the Judiciary from resolving reasonable doubts about a criminal statute’s meaning by rounding up to the most punitive interpretation its text and context can tolerate. See Wooden v. United States, 595 U. S. ___, ___–___ (2022) (GORSUCH, J., concurring in judgment) (slip op., at 6–9). That insight alone means Mr. Dubin’s §1028A(a)(1) conviction cannot stand.
[…]
As an abstract exercise, debating fact patterns like these may seem good fun. But there is nothing entertaining about a 2-year mandatory federal prison sentence. Criminal statutes are not games to be played in the car on a cross country road trip. To satisfy the constitutional minimum of due process, they must at least provide “ordinary people” with “fair notice of the conduct [they] punis[h].” Johnson v. United States, 576 U. S. 591, 595 (2015). And, respectfully, I do not see how §1028A(a)(1) can clear that threshold.”
The Dubin case (along with the decision last month in Ciminelli v. United States and Percoco v. United States) are just the latest in a long string of Supreme Court decisions rejecting expansive DOJ (or government) interpretations of statutes.
For instance in U.S. v. Skilling (2010), the Supreme Court rejected the DOJ’s “honest services fraud” theory of criminal prosecution. Instead of the broad construction the DOJ urged, the Court adopted a narrow interpretation of the relevant statute and reiterated “if Congress desires to go further, it must speak more clearly.”
Likewise in Bond v. U.S. (2013), the Supreme Court unanimously rejected the DOJ’s theory of criminal prosecution. Instead of the expansive construction of the term “chemical weapons” the DOJ urged, the Court adopted a narrow interpretation stating that the DOJ’s interpretation “would sweep in everything from the detergent under the kitchen sink to the stain remover in the laundry room.”
Similarly, as highlighted in this prior post, in U.S. v. Yates (2015), the Supreme Court again rejected the DOJ’s theory of criminal prosecution in the infamous are fish “tangible objects” case. Calling the DOJ’s enforcement theory an “unrestrained” and “unbounded” reading of relevant statute, the Court reversed the 11th Circuit’s opinion affirming the criminal conviction.
In U.S. v. McDonnell (2015) (see here for the prior post), the Supreme Court again rejected the DOJ’s theory of criminal prosecution. Calling the DOJ’s theory of prosecution “boundless,” the Court adopted a narrow interpretation of the meaning of “official action” (a term that also appears in the FCPA) in the federal bribery statute. As stated by the Court:
“There is no doubt that this case is distasteful; it may be worse than that. But our concern is not with tawdry tales of Ferraris, Rolexes, and ball gowns. It is instead with the broader legal implications of the Government’s boundless interpretation of the federal bribery statute. A more limited interpretation of the term “official act” leaves ample room for prosecuting corruption, while comporting with the text of the statute and the precedent of this Court.”
The McDonnell court further stated (internal citations omitted)
“[W]e cannot construe a criminal statute on the assumption that the Government will “use it responsibly.” The Court in Sun-Diamond declined to rely on “the Government’s discretion” to protect against overzealous prosecutions under §201, concluding instead that “a statute in this field that can linguistically be interpreted to be either a meat axe or a scalpel should reasonably be taken to be the latter.” A related concern is that, under the Government’s interpretation, the term “official act” is not defined “with sufficient definiteness that ordinary people can understand what conduct is prohibited,” or “in a manner that does not encourage arbitrary and discriminatory enforcement.” Under the “‘standardless sweep’” of the Government’s reading, public officials could be subject to prosecution, without fair notice, for the most prosaic interactions. “Invoking so shapeless a provision to condemn someone to prison” for up to 15 years raises the serious concern that the provision “does not comport with the Constitution’s guarantee of due process.” Our more constrained interpretation of §201(a)(3) avoids this “vagueness shoal.””
In Digital Realty Trust v. Somers (2018) (see here for the prior post) the Supreme Court once again reminded us that the law means what actual words in a specific statute say (not what other similar statutes may say) and not what the SEC interprets words in a statute to mean.
In Kelly v. U.S. (2020) (see here for the prior post) (the so-called Bridgegate case in which the DOJ charged former public officials who worked at or with the Port Authority of New York and New Jersey and had political ties to former New Jersey Governor Chris Christie), the Supreme Court unanimously reversed criminal convictions even though “the evidence the jury heard no doubt shows wrongdoing – deception, corruption, abuse of power.” In so doing, the court stated that “the federal fraud statutes at issue do not criminalize all such conduct” and that “not every corrupt act by state or local officials is a federal crime.”
In Van Buren v. U.S. (2021) (see here for the prior post), the Supreme Court rejected the DOJ’s expansive interpretation of the Computer Fraud and Abuse Act and concluded that actual words in a statute have meaning and that federal criminal statutes are not all-purpose ethics statutes.
And then of course there were Supreme Court benchslaps of SEC statute of limitations positions in Gabelli v. SEC (2013) (see here for the prior post) and Kokesh v. SEC (2017) (see here for the prior post) as well as the Supreme Court’s benchslap of the Federal Trade Commission in 2021 (see here for the prior post) as well as the Department of Health and Human Services in 2021 (see here for the prior post).
