Editor’s Note: The NYU Law Program on Corporate Compliance and Enforcement is following the Supreme Court’s recent decision in Dubin v. United States, in which it circumscribed the application of the aggravated identity theft statute, 18 U.S.C. § 1028A.  In this post, former federal prosecutors and current defense attorneys react to the decision.

Dubin May Open the Door to Future Challenges to Other Criminal Statutes

by Elizabeth Geddes

Courts engaged in statutory interpretation routinely begin and end their analyses of the reach of criminal statutes by relying on their plain and unambiguous language.  But where prosecutors use their discretion to stretch the limits of a statute to reach absurd results, the judiciary often declines to end its analysis where it otherwise might have. The Supreme Court did just that in Dubin v. United States, 599 U.S. ___ (2023), when it unanimously rejected the government’s attempt to tack on a mandatory consecutive two-year sentence for a violation of 18 U.S.C. § 1028A(a)(1), i.e., the “Aggravated Identity Theft” statute, to a routine health care fraud conviction where the defendant fraudulently over-billed Medicaid by inflating the price of a service that was in fact provided to a patient. While the defendant “used” the means of identification of another person in billing Medicaid (here, the name and Medicaid reimbursement number of a real patient who actually received the service) “in relation to” the healthcare fraud offense, the Supreme Court limited the statute’s reach to cases where the “use” of a means of identification is “at the crux of what makes the underlying offense criminal,” rather than ancillary to it. (Id. at *3).

From the government’s perspective, the case may well be an unfortunate example of the old adage, “bad cases make bad law.” The total reimbursement for the conduct involving a single patient underlying the Aggravated Identify Theft charge in the case amounted to a paltry $338 (though the overall fraudulent scheme involved a much more significant loss), likely leaving the Court and even a casual observer wondering why the government chose to pursue an Aggravated Identity Theft charge in this manner and then to double-down on its decision in defending that choice on appeal and before the Supreme Court. Unfortunately for the government, its attempt to take a criminal statute with a powerful hammer to its broadest end may have inadvertently opened the door for criminal defendants to challenge other conduct that otherwise appears to fall within the four corners of the Aggravated Identity Theft Statute. In Dubin, the Court looked to the title of the statute – an often overlooked component – as providing important context and color to the terms “uses” and “in relation to,” which it found were “indeterminate,” “elastic,” and “context sensitive.” (Id. at *6-*7). To be sure, the Court was careful to limit both the role that a title plays in statutory interpretation and the scenarios where a title may be relevant, but it made clear that the Aggravated Identity Theft statute was one of those instances where its title provides meaningful – and in fact determinative – context. Significantly, the Court highlighted that Congress titled the criminal statute “Aggravated Identity Theft,” which it observed typically applies when an offense “is made worse or more serious by circumstances such as violence, the presence of a deadly weapon, or the intent to commit another crime.” (Id. at *8). This may well lead to an increasing number of future challenges to even garden variety Aggravated Identity Theft prosecutions given that the vast majority of those prosecutions involve, at best, run-of-the-mill identity theft with nothing particularly aggravating at all. (My former colleagues’ prosecution of a man, Dmitry Yakovlev, for Aggravated Identity Theft, in which they proved at trial that Mr. Yakovlev stole his victims’ identities and then murdered them may be one of the rare instances where the offense was truly aggravated.)

Criminal defendants may also use Dubin as a vehicle to challenge the government’s use of other criminal statutes as many statutes have titles that bear little resemblance to the conduct seemingly covered by them. Consider a violation of 18 U.S.C. § 1952 – “Interstate and Foreign Travel or Transportation in aid of Racketeering Enterprises.” By its title, the statute applies to racketeering enterprises – a term most commonly associated with the mafia or other organized criminal groups – but the statute does not include either racketeering or enterprises anywhere in its text, and the government has often used the statute to prosecute individuals with no connection to the mafia or any purported racketeering enterprise. While the success of such a challenge appears remote, Dubin provides criminal defendants with a useful precedent to challenge the statute and others like it, where the conduct covered is broader than the colloquial use of the terms in its title.

Elizabeth Geddes is a Founder at Shihata & Geddes LLP and a former federal prosecutor at the U.S. Attorney’s Office for the Eastern District of New York.

Statutes Such as Section 1028A Create Problems that “Congress Alone Can Fix”

by Brian Jacobs

In Dubin v. United States, the Supreme Court has once again limited the reach of a federal criminal statute, holding that a defendant “uses” the means of identification of another person in relation to a predicate offense in violation of the aggravated identity theft statute—18 U.S.C. § 1028A—when the use is at the crux of what makes the conduct criminal. In reaching this conclusion, the decision illuminates several concerns underlying the trend toward such narrowing constructions in criminal cases. 

First among these is a concern—expressed in the majority opinion by Justice Sotomayor—regarding overcriminalization. That concern is most obvious in Justice Sotomayor’s discussion of how Section 1028A’s stringent two-year mandatory prison sentence should be reserved for those cases in which “heightened punishment” is appropriate, as opposed to those cases involving mitigating factors. Second is the concern that prosecutorial discretion does not adequately protect against overcriminalization. In this regard, Justice Sotomayor curtly dismisses the government’s assurance that “prosecutors will act responsibly” with the “just-as-familiar response” that the Court cannot rely on such assurances. By way of illustration, Justice Sotomayor lists elsewhere in the opinion several prosecutions that went “well beyond ordinary understandings of identity theft.” Third is a concern expressed in Justice Gorsuch’s concurrence: Statutes such as Section 1028A create problems that “Congress alone can fix.” Whether Congress will take up the challenge posed in Dubin and other recent Supreme Court decisions to clarify overbroad and ambiguous criminal statutes remains to be seen. For now, Dubin’s impact may well be felt not only in cases involved Section 1028A, but also in cases raising similar challenges to other broad federal criminal laws.

Brian Jacobs is a Partner at  Morvillo Abramowitz Grand Iason & Anello PC and a former federal prosecutor at the U.S. Attorney’s Office for the Southern District of New York (SDNY).

The Significance and Parameters of Dubin will Play Out for Years to Come

by Paul Krieger

The Dubin decision means that hundreds, if not thousands, of jury instructions have been utterly wrong since 1028A became law in 1998, which could result in a tidal wave of credible appeals. Perhaps more importantly, however, 1028A – and its mandatory and consecutive two-year prison sentence – has been routinely used by prosecutors as a blunt instrument to compel scores of defendants to plead guilty to the predicate offense with the understanding or explicit agreement that the 1028A charge would either be dropped or not brought at all. The Dubin decision will provide the defense bar with a greater ability to push back on that practice legally, factually, and on the equities. 

That said, the significance and parameters of Dubin will play out for years to come. Prosecutors will undoubtedly push lower courts to interpret Dubin to apply in the narrowest of cases and circumstances, e.g., when the defendant’s use of the means of identification of another person was wholly irrelevant to the underlying crime.  And defendants will seek to expand the holding in Dubin to call and allow for 1028A charges only in situations when the use of another person’s identity was essential to the success of the predicate offense.

It also is worth highlighting that the Court did not address another critical element of a 1028A in Dubin; namely that to commit a 1028A violation, a defendant must use a means of identification “without lawful authority.” (Page 16 of the Slip Opinion at footnote 8). That element of 1028A is often contested by defendants and similarly subject to challenges for vagueness and lack of clarity.  Dubin sidesteps the interplay between this “without lawful authority” element of 1028A and whether the identify theft conduct at issue formed the “crux” of what makes the actions at issue criminal. Going forward, it is certain that more defendants and lower courts will scrutinize the “without lawful authority” element of 1028A in light of Dubin.

Paul Krieger is a Co-Founder of Krieger Kim & Lewin LLP and a former federal prosecutor at the SDNY. 

The Supreme Court Acts to Protect People from Over-Zealous Prosecutors and Unduly Broad Criminal Statutes

by Harry Sandick

In Dubin v. United States, the Supreme Court gave a narrowing construction to a federal statute, 18 U.S.C. § 1028A.  This statute provides that whomever, “during and in relation to any [predicate offense], knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person” is a guilty of a crime.  Dubin was convicted of healthcare fraud for overbilling Medicaid by making a fraudulent submission in which he provided the patient’s Medicaid reimbursement number.  Taking the position that this number was a “means of identification” that was used without lawful authority, the government tried and convicted Dubin not only for healthcare fraud but for a violation of Section 1028A, which is meant by its title to punish “aggravated identity theft.”  In an opinion by Justice Sotomayor, the Supreme Court reversed the conviction, explaining that the statute only applies where misuse of a means of identification is “at the crux of the fraud.”  Otherwise, any time a person wrote a patient’s name or a reimbursement number on a fraudulent Medicaid or Medicare submission, the person would have committed this crime.  Or a person would commit this crime by facilitating mail fraud by using a person’s name to address a letter to them.  As the Court explained toward the end of its opinion, “crimes are supposed to be defined by the legislature, not by clever prosecutors riffing on equivocal language.”  (Slip op. at 21).  “From text to context, from content to common sense, Section 1028A(a)(1) is not amenable to the Government’s attempt to push the statutory envelope” (Slip Op. 23).  In a concurrence, Justice Gorsuch would have gone further and declared the entire statute void for vagueness.

The Supreme Court’s decision in Dubin continues a long-running trend at the Supreme Court to prevent prosecutors from taking advantage of statutory language that, if construed broadly and in the government’s favor, could be used to prosecute innocent conduct.  In direct terms, the Court rejected the government’s “familiar plea” that “[t]here is no reason to mistrust its sweeping reading, because prosecutors will act responsibility.”  This is an old song that the government always sings, and the Court has found the tune unharmonious in a host of different statutory contexts going back almost a decade.  In Bond v. United States, 572 U.S. 844, 848 (2014), the Supreme Court ruled that the Chemical Weapons Convention Implementation Act did not apply to “a jilted wife’s [attempt] to injure her husband’s lover’ by putting lab chemicals on the other woman’s doorknob.  In 2015, the Supreme Court held that the Sarbanes-Oxley Act’s prohibition on destroying records, documents or tangible objects did not apply to the throwing of fish overboard even when those fish were evidence in an investigation into unlawful fishing.  See Yates v. United States, 574 U.S. 528 (2015).  Then, in 2018, the Supreme Court held in Marinello v. United States, 138 S. Ct. 1101, 1109 (2018), that the tax obstruction statute required the government to prove that the defendant knew or should have known about a pending tax proceeding brought against him.  Most recently, the Supreme Court limited the reach of the Computer Fraud and Abuse Act in Van Buren v. United States, 141 S. Ct. 1648 (2021), holding that a person only “exceeds authorized access” by looking at particular areas of a computer or computer system that are off-limits to him as opposed to merely using the computer for some purpose that is technically not permitted by company policy.  In all of these cases, the Supreme Court acts to protect people from over-zealous prosecutors and unduly broad criminal statutes.

The Dubin court recognized this trend in its decisional law.  It relied heavily on Marinello and Van Buren in its analysis, and also cited Yates.  Dubin and the other cases in this line of authority reflect the Court’s recognition that we are living in an age of over-criminalization.  Not everything that is bad needs to be a crime, let alone a federal crime.  Many things that are bad—such as New Jersey Governor Chris Christie’s effort to exact political punishment on a local mayor by making it harder for the residents of the mayor’s town to cross the George Washington Bridge—cannot be punished under existing law without “a sweeping expansion of federal criminal jurisdiction.”  Kelly v. United States, 140 S. Ct. 1565, 1574 (2020).  By restricting the statute at issue in Dubin to its core purpose of punishing the most serious and harmful forms of identity fraud—those where the identity fraud is at the crux of the crime—the Supreme Court brings the existing law closer to what people would expect the law to reflect and prevents prosecutors from using this strangely written statute in a way that it should not be used.

Harry Sandick is a Partner Patterson Belknap Webb & Tyler LLP and a former federal prosecutor at the SDNY.

Hints that a Prosecutor’s Use of Mandatory Minimum Penalties as Leverage Is Irresponsible

by Justin Weddle

A key point about the Supreme Court’s Dubin decision is one that only receives passing mention in the decision itself—that Section 1028A’s mandatory minimum sentence requirement (like most mandatory minimum penalty statutes) constitutes a power shift from judges to prosecutors. The Court mentions this real-world context only once, noting that, with a broad interpretation of the elastic statutory language, “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.” (Slip op. at 19). In other words, the Court identified as a “salient” “concern” that prosecutors would wield creative interpretations of statutory language to exact trial penalties on defendants, or as leverage in plea negotiations. Interestingly, this “concern” comes at the end of a paragraph rejecting the prosecution’s argument that prosecutors can be trusted to use a broadly applicable statute “responsibly.” (Id.). The Court’s language hints that a prosecutor’s use of mandatory minimum penalties as leverage to avoid a trial or obtain a plea is irresponsible. This suggestion is noteworthy, and echoes DOJ policy changes in the December 16, 2022 “Garland Memo,” which newly directed prosecutors to exercise restraint in including mandatory minimum penalties in its charges, when other, more flexible statutes, would adequately capture the seriousness of the conduct. (General Department Policies Regarding Charging, Pleas, and Sentencing, Dec. 16, 2022).

Justice Gorsuch’s concurrence would have simply held that the statute was unconstitutionally vague, rather than seek, as the Court’s opinion did, to narrow that language with judicial interpretation. Indeed, he predicted that the Court’s test was itself not precise enough to eliminate the interpretive issues that had “plagued the lower courts.” But “the lower courts” may not be where this battle plays out, unless prosecutors take to heart the suggestion that threatening to add a Section 1028A charge against a defendant who considers going to trial is an improper use of plea-bargaining leverage. Otherwise, the Court’s test may have the perverse and unintended effect of encouraging prosecutorial creativity in finding identities “at the crux” of an underlying crime, particularly where doing so plays out not in briefs or lower court opinions, but around the plea bargaining table.

Justin Weddle is the Founder of Weddle Law PLLC and a former federal prosecutor at the SDNY.

Dubin Limits Abuse of Section 1028A by Prosecutors

by Elisha Kobre

Dubin’s biggest impact will be to decrease the leverage federal prosecutors are able to exert to extract guilty pleas in white collar cases.  Section 1028A is one of the only offenses available, in what are generally thought of as white-collar cases, to carry a mandatory minimum sentence of imprisonment.  Section 1028A imposes a mandatory two-year sentence of imprisonment in addition to any sentence for the underlying predicate offense.  Most mandatory minimum sentences arise in the context of narcotics and firearms violations.  Section 1028A was therefore a distinctly powerful and threatening tool in the white-collar context.

Prosecutors for this reason frequently charged Section 1028A in garden variety fraud cases—that no one would think of as involving identity theft—as a means of ratcheting up pressure on defendants to plead guilty to the underlying fraud. White-collar defendants are, moreover, likely to be particularly sensitive to the certainty and severity of a mandatory two-year term of imprisonment because many of these individuals are first time offenders hoping to receive little or no jail time altogether.  Conviction under the aggravated identity theft statute would dash any such hopes.  On top of which, Section 1028A is, in many cases, quite easy for the government to prove.  In Dubin, for example, proof of the Section 1028A violation was almost implicit in the proof of the underlying health care fraud and mail fraud. 

As a result, prosecutors would often charge Section 1028A in run of the mill fraud cases but then plea bargain that offense away in exchange for a guilty plea to the underlying fraud.  No longer, and that is a good thing.

Elisha Kobre is a Partner at Bradley Arant Boult Cummings LLP and a former federal prosecutor at the SDNY.

The Supreme Court Removes an Arrow from the Quiver

by Sarah Krissoff

Federal prosecutors have long wielded the Aggravated Identity Theft statute, 18 U.S.C. § 1028A, as a powerful tool in fraud cases.  The statute carries a mandatory minimum sentence of 2 years’ imprisonment that must be tacked on to any other sentence imposed, including any sentence for the predicate crime underlying the identify theft.  In other words, if you commit one of a long list of enumerated felonies, and transfer, possess, or unlawfully use the identification of another person in connection with that felony, you are facing the very real possibility of a 2 year mandatory minimum sentence sitting on top of any other sentence you receive. 

In a colorful opinion replete with examples of all of the everyday conduct that would be criminal under the Government’s interpretation of the statute, the Supreme Court rejected the Government’s “near limitless” reading of the statute, and held that an individual only “uses” another person’s means of identification “in relation to” a predicate offense when the use is at the crux of what makes the conduct criminal.  Dubin v. United States, 599 U.S. _____ (2023).  Thus, under Dubin, in order to invoke § 1028A when the predicate crime involves fraud or deceit, the “means of identification specifically must be used in a manner that is fraudulent or deceptive.”

With this decision, the Supreme Court stripped federal prosecutors of their ability to rely on § 1028A in cases where the use of another’s identity is an ancillary part of the payment or billing process used in the predicate offense.  Consistent with other recent decisions from the Supreme Court limiting the application of criminal statutes carrying mandatory minimum sentences, the Court continues to tell prosecutors – as it does explicitly in Dubin – that it is unwilling to rely on prosecutorial discretion to narrow the application of a broadly-worded criminal statute.  To use the Court’s own hypothetical, the waiter who serves flank steak but deliberately charges for filet mignon using a common, electronic payment method can breathe a sigh of relief. 

Sarah Krissoff is a Partner at Day Pitney LLP and a former federal prosecutor at the SDNY.

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