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Supreme Court Narrows Aggravated Identity Theft, Leaving Open More Questions


Under federal law, identity theft can take several forms.  Most often it involves the use of a “means of identification” “with the intent to commit” a federal offense or a felony under state or local law.  18 U.S.C. § 1028(a)(7).  The penalties vary from five to 30 years’ imprisonment depending, in general, on the type of identification document involved, the number of documents involved, whether the offense involved the production or transfer of identification documents, and the types of offenses the offense facilitated.  18 U.S.C. § 1028(b).

Congress also created a separate and distinct crime—“aggravated identity theft”—with additional, consecutive penalties, which provides:

Whoever, during and in relation to [specified felony offenses] knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person shall, in addition to the punishment provided for such felony, be sentenced to a term of imprisonment of 2 years.

18 U.S.C. § 1028A(a)(1) (emphasis supplied).[1]  Defining the statute’s seemingly unlimited scope has presented significant challenges for the courts to determine what constitutes “use” “in relation to” a specified offense.  See, e.g., United States v. Medlock, 792 F.3d 700 (6th Cir. 2015) (reversing § 1028A conviction because identities were not “used” to make misrepresentations), cert. denied, 136 S. Ct. 601 (2015); United States v. Miller, 734 F.3d 530, 542 (6th Cir. 2013) (defendant did not “use” identifications by including names of persons in a resolution and falsely stating their positions).

In a case decided in June, the United States Supreme Court attempted to reconcile the various approaches in Dubin v. United States, 599 U.S. __ (2023).  The defendant, David Dubin, managed his father’s psychological services company, which submitted claims to Medicaid for reimbursement for psychological testing, and he was charged with various offenses in connection with the submission of false claims to Medicaid.  The claims that Dubin submitted were false in various ways, including overstating the qualifications of personnel who performed the service, which increased the rate of reimbursement.  Following trial, he was convicted of one count each of health care fraud, conspiracy to commit health care fraud, and aggravated identity theft, 18 U.S.C. §§ 1347, 1349, 1028A.

The Supreme Court granted certiorari, noting a conflict among the circuits in the interpretation of the elements of § 1028A.  In deciding the question, the unanimous Court focused on the scope of “uses” and “in relation to,” noting the chasm between the parties’ respective interpretations of the statute.  Dubin v. United States, 599 U.S. __ (slip op. at 4).  The government, it observed, urged a rudimentary interpretation of “use”—that is, “use” of one’s identity occurs whenever it facilitates the commission of an offense.  The petitioner, the Court noted, maintained that “use” requires more, that is, a genuine nexus to the predicate offense.  Id. And as to “in relation to,” the Court clearly is driven by context.  It found both terms to be “indeterminate,” so it turned to surrounding language.  In particular, it observed that “[s]ection 1028A(a)(1)’s title and terms both point to a narrower reading, one centered around the ordinary understanding of identity theft.”  Id. at 8.

The Court first addressed the statute’s title, finding that it “suggests identity theft is at the core of § 1028A(a)(1).”  Id. at 12.  It interpreted “uses” relying on the accompanying verbs, “transfers” and “possesses,” and observed

Identity theft thus intermingles aspects of theft and fraud, misappropriation and deceitful use.  Section 1028A(a)(1)’s three verbs capture this complexity.  While “transfer” and “possess” conjure up two steps of theft, “uses” supplies the deceitful use aspect.

Id. at 14.  The Court concluded that the statute’s “title and text are mutually reinforcing.  Both point toward requiring the means of identification to be at the crux of the criminality.”  Id. at 15.  And it noted that the two-year mandatory penalty also points to a targeted reading where the means of identification is at the crux of the underlying criminality, not an ancillary feature of billing.  Id. at 17.  In summary, the Court held that a

defendant “uses” another person’s means of identification “in relation to” a predicate offense when this use is at the crux of what makes the conduct criminal.  To be clear, being at the crux of the criminality requires more than a causal relationship, such as “facilitation” of the offense or being a but-for cause of its “success.”

Id. at 19-20.  The Court acknowledged that a “heuristic” or “colloquial formulation” developed by the Sixth Circuit in United States v. Michael, 882 F.3d 624, 628 (6th Cir. 2018), was a “helpful guide” by limiting § 1028A’s use to misrepresentations as to who rendered a service but not misrepresentations as or how or when the service was performed.  Id. at 5, 20.  But it also noted that the standard had its limits and is not applicable to all situations.

Justice Gorsuch concurred in the judgment, writing separately to underscore what he sees as the vagueness of the aggravated identity statute:

Truly, the statute fails to provide rudimentary notice of what it does and does not criminalize.  We have a term for laws like that.  We call them vague.  And “[i]n our constitutional order, a vague law is no law at all.”

599 U.S. __ (2023) (slip concur. op. at 1) (quoting United States v. Davis, 139 S. Ct. 2319, 2323 (2019)).  The terms “use” and “in relation to” “support a multitude of possible meanings,” and the Justice concluded that the Court must confine its interpretation to the “more restrained” ones.  599 U.S. at __ (slip concur. op. at 2).  As to even those, however, he found that “they present intractable interpretive challenges of their own.”  Id. at 3.  Reciting various examples of what could be aggravated identity theft, the Justice found that the Court’s “crux” test “offers no sure way through this ‘blizzard of. . .hypotheticals.’”  Id. at 4.  He concluded:

There are an uncountable number of ways in which an individual could “us[e]” the “means of identification” of another to commit fraud.  That list covers everything from including a victim’s name in the subject line of a fraudulent email; to misrepresenting information on a loan form involving a cosigner; to putting on a wig and walking into a bank with a fake ID.  And no obvious neutral rule exists to separate those “uses” that violate §1028A(a)(1) from others that do not.  In this way, §1028A(a)(1) is not just an “ambiguous” statute—“one that does define prohibited conduct with some precision, but [that] is subject to two or more different interpretations.” J. Decker, Addressing Vagueness, Ambiguity, and Other Uncertainty in American Criminal Laws, 80 Denver U. L. Rev. 241, 261 (2002) (emphasis added).

Id. at 7.  For Justice Gorsuch, only Congress can fix the apparent vagueness.  For the time-being, however, he is evidently willing to see how the lower courts deal with the “crux” standard.

In implementing this new standard lowers courts will continue to be challenged.  For example, in the Sixth Circuit the standard jury instruction provides for four elements:

(1)      The defendant committed a felony specified in the statute,

(2)      The defendant knowingly used a means of identification of another person without lawful authority,

(3)      The defendant knew the means of identification belonged to another person.

(4)      The use was during and in relation to the specified felony.

Sixth Circuit Pattern Criminal Jury Instructions 15.04, at 407 (2023 update).  The last element is insufficiently descriptive, so courts will have to craft language to ensure that the jury only finds that the use (possession or transfer) was the crux of the underlying offense.

[1]The specified offenses are enumerated in the statute and include, for example, bank fraud and wire fraud.  18 U.S.C. §§ 1343, 1344.