SCOTUS: Courts Should Avoid Assigning 'Breathtaking' Scope to White-Collar Crime Statutes

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

The "aggravated identity theft" statute makes it unlawful for a defendant "during and in relation to" a broad array of enumerated federal felonies "to knowingly transfer[], possess[], or use[], without lawful authority, a means of identification of another person." 18 U.S.C. Section 1028A(a)(1). "Means of identification" is broadly defined to include any name or number that, alone or in conjunction with other information, can be used to identify a specific individual. The statute imposes a mandatory two-year prison sentence that must run consecutively to any sentence imposed for the underlying felony. Despite its title, Section 1028A(a)(1)'s text does not contain the words "identity theft" (or even "theft"). The government has interpreted the statute's broad language to permit prosecutors to tack on Section 1028A charges to virtually any fraud in which a person's identification information was used in any way.