Despite SCOTUS Ruling, Aggravated Identity Theft Statute Ripe for Overreach

In 2004, when identity theft emerged as a significant threat to individuals and institutions alike, Congress enacted 18 U.S.C. §1028A, entitled “Aggravated Identity Theft,” to impose stricter penalties on offenders. The statute imposes a non-discretionary two-year prison sentence for offenders who, “during and in relation to any [predicate offense], knowingly transfer, possess, or use, without lawful authority, a means of identification of another person.”
Predicate offenses encompass a wide range of crimes, including healthcare fraud and wire fraud, and the two-year mandatory minimum must run consecutively to the sentences imposed for the predicate and other offenses charged.
While intended to target classic identity theft, the statute’s ambiguous language has allowed prosecutors to apply it expansively, often leading to disproportionate sentences for defendants whose actions fall outside the traditional understanding of identity theft.
The Supreme Court’s June 2023 decision in Dubin v. United States, 599 U.S. 110 (2023), aimed to curb this prosecutorial overreach by narrowing the interpretation of §1028A. However, early indications suggest that the decision’s impact has been limited as the government and lower courts continue to apply the statute broadly.
This article suggests that, despite the Supreme Court’s ruling in Dubin, §1028A remains inherently vague, perpetuating unjust outcomes. Without legislative amendment or more definitive judicial guidance, the statute will continue to serve as a tool for prosecutorial overreach.

‘Dubin’s’ Attempt To Narrow §1028A

Since its enactment, “[t]he Government has, by its own admission, wielded §1028A(a)(1) well beyond the ordinary meanings of identity theft.” Dubin, 599 U.S. at 115. The government’s expansive application of §1028A has enabled prosecutors to charge it in undeserving cases, often using the threat of the mandatory two-year minimum prison sentence as undue leverage to secure more favorable plea agreements. The government’s liberal use of the statute has resulted in overly harsh penalties for crimes that do not conform to the statute’s original purpose.
Recognizing this growing inequity, the Supreme Court in Dubin sought to narrow the statute’s interpretation by clarifying what it means to “use” a “means of identification” under §1028A. The defendant David Dubin, who managed a psychological services company, submitted reimbursement claims to Medicaid that inflated the reimbursement amounts his company was entitled to.
Specifically, Dubin “overstated the qualifications of the employee that actually performed the testing,” thus causing an undue inflation in the reimbursement his company received from Medicaid. Dubin, 599 U.S. at 114. Because Dubin’s inflated requests included the patients’ Medicaid reimbursement numbers (a “means of identification” per 18 U.S.C. §1028(d)(7)), the government charged Dubin with aggravated identity theft in addition to healthcare fraud and other crimes.
Dubin was subsequently convicted of two counts of health care fraud and related offenses, resulting in a sentence of one year and one day incarceration. He was also convicted of aggravated identity theft for which the court imposed a consecutive two-years’ incarceration, thus tripling his sentence.
In a decision written by Justice Sonia Sotomayor, the Supreme Court ruled in Dubin’s favor, holding that §1028A should not apply to cases where identity use is incidental to the underlying crime, even when use of another’s identity is necessary to complete the criminal transaction.
The Supreme Court recognized that if the statute were read too broadly, it could apply to virtually any crime involving someone else’s name or identifying information and thus sought to bring §1028A back in line with its original purpose. Id. at 127.
The Dubin court concluded that the aggravated identity theft statute requires “a more targeted reading [that] accurately captures the ordinary understanding of identity theft, where misuse of a means of identification is at the crux of the criminality.” Id. at 120 (emphasis added).The decision stated:
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.’ Instead, with fraud or deceit crimes like the one in this case, the means of identification specifically must be used in a manner that is fraudulent or deceptive. Such fraud or deceit going to identity can often be succinctly summarized as going to ‘who’ is involved.
Id. at 131-32 (internal citation omitted).
The Dubin court further emphasized: “[c]rimes are supposed to be defined by the Legislature, not by clever prosecutors riffing on equivocal language” (id. at 129-30 (internal quotations omitted)) and further cautioned that “we cannot construe a criminal statute on the assumption that the Government will use it responsibly,” explaining:
[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. 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.
Id. at 131 (internal citations and quotations omitted).