“The Supreme Court’s message is unmistakable: Courts should not assign federal criminal statutes a ‘breathtaking’ scope when a narrower reading is reasonable.” See United States v. Dubin, 27 F.4th 1021, 1041 (5th Cir. 2022) (Costa, J., dissenting). So began the powerful dissent of Judge Gregg Costa, joined by six of his U.S. Court of Appeals for the Fifth Circuit colleagues sitting en banc, which presaged the Supreme Court’s June 8, 2023, unanimous reversal in Dubin v. United States, 143 S. Ct. 1557 (2023). The dissenters then cited a string of Supreme Court criminal law decisions, many previously discussed in this column, illustrating that the Court’s delivery of that message was “nearly an annual event,” and observed that not “once this century” has the Court adopted the “government’s broad reading … for a white collar/regulatory criminal statute.” Dubin, 27 F.4th at 1041. In its ruling in Dubin, the Supreme Court forcefully continued the trend recognized by Costa, rejecting the government’s literalist view of 18 U.S.C. Section 1028A(a)(1) that would make virtually every low-level fraud by a health care provider into aggravated identify theft subject to a mandatory two-year prison sentence.
Though it has garnered less attention than this term’s unanimous Ciminelli decision rejecting the “right to control” theory of wire fraud, Dubin is significant in itself. Prosecutors regularly use the “Aggravated identity theft” statute, 18 U.S.C. Section 1028A(a)(1), and the breadth of the government’s prior interpretation, combined with its mandatory minimum sentence, made the law a powerful tool to induce guilty pleas in fraud cases. The courts’ struggle to derive a principled narrowing of the statute, culminating in the Supreme Court’s adoption of a rule requiring that a defendant’s use of a means of identification be “at the crux of what makes the conduct criminal” is also an interesting study in criminal statutory interpretation. Practitioners may want to consider opportunities to apply Dubin’s rationale in other criminal law contexts. In some notable cases, counsel already have begun doing so.
Aggravated Identity Theft and the ’Use’ of Another’s Identity
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