In a win for defendants, the Supreme Court limits the aggravated identity theft statute and resulting prosecutorial plea-bargaining power

Federal prosecutors will now be cabined in their ability to use aggravated identity theft charges to pressure defendants to plead guilty to other offenses in exchange for avoiding the two-year mandatory minimum, mandatory consecutive sentence that an aggravated identity theft conviction carries.

David Dubin was convicted of healthcare fraud for overbilling Medicaid for psychological testing by overstating the qualifications of the employee who performed the testing and lying about when the testing took place. Mr. Dubin’s fraudulent billing included patients’ Medicaid numbers, which are a means of identification.¹ 

The District Court denied Mr. Dubin’s post-conviction challenge based on binding Fifth Circuit precedent that held that the use of a name and identifier number in healthcare fraud constituted aggravated identity theft, but noted that it “hope[d]’ it would “get reversed” because this was an overbilling case that didn’t “seem to be an aggravated identity theft case.”² Mr. Dubin appealed his conviction to the Fifth Circuit, where the panel affirmed the District Court’s finding.³ The Fifth Circuit took the case en banc and in a closely divided opinion affirmed the panel’s decision, with ten judges voting in favor of affirming and eight judges voting in favor of reversal. The Firth Circuit’s en banc decision conflicted with decisions of the First, Sixth, Seventh, Ninth, and Eleventh Circuits as to how to interpret the aggravated identity theft statute.⁴ The Supreme Court granted certiorari to resolve the circuit split: it examined whether Mr. Dubin committed aggravated identity theft under 18 U.S.C. § 1028A(a)(1).

The aggravated identity statute makes it unlawful for a person to (1) knowingly (2) transfer, possess, or use (3) a means of identification (4) of another person (5) without lawful authority (6) in relation to (7) a predicate felony.⁵ The statute enumerates predicate felonies, which all involve fraud or deception, such as offenses involving false statements, wire fraud, bank fraud, offenses related to nationality and citizenship, and offenses related to immigration.⁶ The statute carries a mandatory minimum sentence of two years of incarceration that must be imposed consecutively to any predicate felony.

On June 8, 2023, the Court issued its opinion in Dubin v. United States, No. 22-10, 599 U.S. __ (2023), ruling that Mr. Dubin did not commit aggravated identity theft, because he did not “use” a means of identification “in relation to” the underlying healthcare fraud offense.⁷ Mr. Dubin’s “fraud was in misrepresenting how and when services were provided to a patient, not who received the services,” and so his use of patients’ means of identification “was not at the crux of what made the overbilling fraudulent.”⁸
 
Justice Sotomayor wrote the opinion, which was unanimous in judgment, narrowing the scope of the crime of aggravated identity theft. Justice Gorsuch filed a lone concurrence. 

The Court held that, under the aggravated identity theft statute, a defendant’s “use” of a person’s means of identification “in relation to” a predicate offense must be “at the crux of what makes the underlying offense criminal.”⁹ In other words, Section 1028A(a)(1) prohibits the stealing and misuse of people’s identities in order to commit another felony involving fraud or deception, not conduct where a person’s identity is merely incidental or ancillary to the underlying felony.
 
The Court reasoned that identity theft is what someone would commonly understand as identity theft: when someone steals identifying information about another person and actually uses it to deceive others. And the Court concluded that the aggravated identity theft statute, in contrast to the general identity theft statute,¹⁰ is meant to criminalize “particularly serious” forms of identity theft, “not just all manner of everyday over-billing offenses.”¹¹

Because many of the predicate offenses underlying aggravated identity theft do not carry mandatory minimum sentences, defendants who might otherwise receive probation-only or lesser prison sentences if convicted of the underlying predicate felony instead face two years’ incarceration that must be imposed consecutively if they are convicted of aggravated identity theft. Mandatory minimums tie judges’ hands at sentencing and prevent them from fully considering other mitigating factors. This particular statute prevents a judge from running the two-year mandatory minimum concurrently with a period of incarceration for the underlying offense or reducing the sentence for the underlying offense based on the two-year mandatory minimum that the aggravated identity theft statute imposes.¹² 

With the addition of an aggravated identity theft charge, federal prosecutors are better positioned to pressure defendants who might otherwise exercise their constitutional right to a jury trial to instead plead guilty to other charges in exchange for dropping aggravated identity theft and avoiding the risk of two-year custodial sentence. Before Dubin, prosecutors had much more leeway to exploit an aggravated identity theft charge in this way. And they have: in the ten years shortly after Section 1028A was enacted, the percentage of people convicted under the statute doubled from 21.9% in 2006 to 53.4% in 2016.¹³
 
Dubin is a positive development for defendants as it curtails the prosecutor’s ability to threaten imposition of an aggravated identity theft charge or use it as a bargaining chip in plea negotiations. It also reduces the real risk that innocent people will plead guilty to avoid the uncertainties of trial.¹⁴ This is particularly important when the vast majority of federal criminal charges are resolved through plea bargaining (approximately 97%), and only a very small minority of cases go to trial (roughly 3%).¹⁵ Hopefully Dubin will also contribute to reducing the documented racial disparities that the aggravated identity theft statute has imposed.¹⁶ 

Noting that the government admitted that it had previously “wield[ed]” the aggravated identity theft statute “well beyond ordinary understandings of identity theft,” the Court rejected the government’s broad reading of the statute that would have turned any fraud involving people’s means of identification into aggravated identity theft, regardless of whether that means of identification was related to the underlying fraud.¹⁷
 
The Court also rebuffed the government’s argument that prosecutors would act responsibly should the Court approve its sweeping reading of the statute: “We cannot construe a criminal statute on the assumption that the government will use it responsibly . . . . To 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.”¹⁸
 
In his concurrence, Justice Gorsuch criticized the government’s position as “affix[ing] th[e] unfortunate label” of “aggravated identity thief” “on almost every adult American,” including people who overcharge a friend using Venmo, a contractor who rounds up his time by a few minutes, and a college applicant who overstates his involvement in an extracurricular activity.¹⁹ Justice Gorsuch would have struck down the aggravated identity theft statute as unconstitutionally vague. The majority opinion noted that while there will sometimes be tough cases, it believed that courts would be able to apply its “crux” test.²⁰

The Dubin decision has important practical implications for defense attorneys. 

Defense attorneys should be attuned to circumstances where the aggravated identity theft allegations are not separate or distinct from the underlying fraud or deception itself and where their client is not alleged to have used someone’s means of identification to impersonate them. 

If their clients are presently charged with aggravated identity theft, defense attorneys should consider whether to file motions to dismiss for failure to state an offense in light of Dubin. 

In requesting discovery, negotiating with the government, and defending the case, defense attorneys can develop and point to facts showing that the transfer, possession, or use of a means of identification was merely incidental and that their client had no intention of separately using the means of identification for their own benefit, enrichment, or profit.

The Court’s narrowing of the aggravated identity theft statute can also be used to combat overly broad statutory interpretations of other criminal statutes and push back against the trend of prosecutors overcriminalizing conduct by broadly applying criminal statutes in ways that Congress did not intend.

¹ The term “means of identification” refers to “any name or number that may be used, alone or in conjunction with any other information, to identify a specific individual.” 18 U.S.C. § 1028(d)(7).
² Dubin v. United States, No. 22-10, 599 U.S. __ (2023), Joint Appendix at 37-38, available from https://www.supremecourt.gov/DocketPDF/22/22-10/250825/20221223152458753_22-10_JointAppendix.pdf.
³ United States v. Dubin, 982 F.3d 318 (5th Cir. 2020); but see id. at 330, 332 (Elrod, J. , concurring) ( “reluctantly” concluding that binding circuit precedent governed).
⁴ United States v. Dubin, 27 F.4th 1021 (5th Cir. 2022) (en banc).
⁵ 18 U.S.C. § 1028A(a)(1).
⁶ 18 U.S.C. § 1028A(c).
⁷ Dubin v. United States, No. 22-10, 599 U.S. __ (2023), at *13.
⁸ Id. at *13.
⁹ Id. at *3.
¹⁰ 18 U.S.C. § 1028.
¹¹ Dubin, 599 U.S. at *8 (citation omitted).
¹² 18 U.S.C. § 1028A(b)(2)-(3).
¹³ U.S. Sentencing Comm’n, Mandatory Minimum Penalties for Identity Theft Offenses in the Federal Criminal Justice System 14 (Sept. 2018), available from https://www.ussc.gov/sites/default/files/pdf/research-and-publications/research-publications/2018/20180924_ID-Theft-Mand-Min.pdf. 
¹⁴ See, e.g., Jed S. Rakoff, Why Innocent People Plead Guilty, N.Y. Rev. of Books (June 20, 2014), available from https://www.nacdl.org/getattachment/8e5437e4-79b2-4535-b26c-9fa266de7de8/why-innocent-people-plead-guilty-_-jrakoff_ny-review-of-books-2014.pdf. 
¹⁵ The Trial Penalty: The Sixth Amendment Right to Trial on the Verge of Extinction and How to Save It, National Association of Criminal Defense Lawyers (July 10, 2018), https://www.nacdl.org/Document/TrialPenaltySixthAmendmentRighttoTrialNearExtinct. 
¹⁶ U.S. Sentencing Comm’n, Mandatory Minimum Penalties for Identity Theft Offenses in the Federal Criminal Justice System 6 (Sept. 2018) (explaining how the aggravated identity theft mandatory minimum has impacted Black defendants more than defendants belonging to any other racial group). 
¹⁷ Dubin, 599 U.S. at *4-5.
¹⁸ Id. at *12 (cleaned up and internal citations omitted).
¹⁹ Id. at *13 (Gorsuch, J., concurring in judgment).
²⁰ Id. at *12, n.10.