Supreme Court Cautions Against Overly Broad Criminal Charging Decisions

5 minute read | June.16.2023

The U.S. Supreme Court recently struck another blow against overcriminalization of federal criminal statutes, i.e., the application of criminal provisions in specific laws in ways that Congress never intended. The court’s unanimous decision in United States v. Dubin continued its trend of rejecting federal prosecutors’ application of criminal statutes in broad and even counter-intuitive ways.[1]

This time, the Court rejected the government’s proposed reading of 18 U.S.C. § 1028A, a statute entitled “Aggravated identify theft.”  The law imposes a mandatory sentence of two consecutive years of incarceration when a defendant “uses, without lawful authority, a means of identification of another person” during the commission of a number of predicate offenses.  

What Happened: United States v. Dubin at a Glance

David Dubin was convicted of healthcare fraud for Medicaid overbilling.  This scheme necessarily included a patient’s Medicaid reimbursement number – a “means of identification” – in billing. As a result, the government also charged Dubin with aggravated identity theft, arguing that the statute was “automatically” satisfied by the presence of this number.  The district court said that this didn’t “seem to be an aggravated identity theft case” and hoped it would “get reversed,” but it was obligated to follow circuit precedent defining the scope of aggravated identify theft broadly, to encompass circumstances including the incidental presence of identifying information. The Fifth Circuit panel then upheld the government’s theory and a fractured en banc panel affirmed, relying on a literal reading of the word “use.”  In doing so, it diverged from multiple federal circuits that had defined the law more narrowly.  The Supreme Court addressed this circuit split.   

Dubin’s case concerned criminal defense attorneys across the country for a litany of reasons.[2] Fundamentally, the facts of the case did not seem to fit what the average person thinks of when they hear “identity theft” – that is, when a person steals someone else’s identity or means of identification to pass themselves off as that person or improperly access their benefits.  Dubin did not do this, but rather, submitted the Medicaid reimbursement number of a patient who received actual medical services and voluntarily provided her identification.  The common-sense distinction that the statute does not criminalize the incidental employment of identifying information is further supported by Section 1028A’s overall text, structure, and title.

But despite these seemingly obvious indications that this statute was not intended for situations like Dubin’s, as well repeated rebukes by other federal circuits overturning similarly counter-intuitive convictions, and the Supreme Court’s repeated warnings against interpreting federal criminal statutes to have a “‘breathtaking’ scope when a narrower reading is reasonable,”[3] the government sought to transform Dubin’s healthcare fraud case into aggravated identity theft. 

This charging decision, and its subsequent endorsement by the Fifth Circuit, was particularly significant because of just how far Section 1028A reaches.  Several of the statute’s predicate offenses inherently involve a name or other identifying information, including healthcare fraud as well as tax, immigration, and Social Security offenses. Others often involve the use of a name or other identifying information, including fraud and false statement offenses such as mail, bank, and wire fraud, and various forms of theft and embezzlement.  Under the government’s theory, these offenses could automatically be converted into aggravated identity theft and subject the accused to an additional two-year mandatory minimum sentence.  Had the Supreme Court endorsed the government’s reading of the statute, federal prosecutors would have been empowered to bring aggravated identity theft charges in even more innovative and tenuous ways.   

Instead, the Supreme Court emphasized that statutes should not be read in a vacuum to craft the broadest possible application. A more appropriate interpretation, the Court concluded, is that Section 1028A applies when a defendant uses another person’s identity in a way that is “at the crux of what makes the conduct criminal.”

What It Means: Another Powerful Message About Prosecutorial Abuse of Discretion

In its ruling, the Supreme Court yet again cautioned against the overcriminalization of federal statutes. 

The Court observed that federal prosecutors routinely seek to apply the aggravated identity theft statute in situations “well beyond ordinary understandings of identity theft.” The Court also underscored the absurdity of prosecutors’ theory by explaining that it would apply “virtually all of the time” and make an identify thief of a lawyer who inflates hours billed from 2.9 to 3.0 or to a waiter who serves flank steak but charges for filet mignon (assuming the use of common billing methods like credit cards).  Given this implausibility and the range of predicate offenses at issue, the Court soundly rejected the government’s position. 

The Court has time and time again refused to construe a criminal statute too broadly on the assumption that DOJ will use it responsibly. It sent the same message in this case.

[1] See e.g. Van Buren v. United States, 141 S. Ct. 1648, 1661 (2021); Kelly v. United States, 140 S. Ct. 1565 (2020); McDonnell v. United States, 579 U.S. 550 (2016); Yates v. United States, 574 U.S. 528 (2015); Bond v. United States, 572 U.S. 844 (2014); Sekhar v. United States, 570 U.S. 729 (2013) (all overturning criminal convictions).

[2] In fact, Orrick attorneys and authors of this alert represented the National Association of Criminal Defense Lawyers as amicus counsel before the Supreme Court and Fifth Circuit. 

[3] Van Buren, 141 S. Ct. at 1661.