Dubin v. United States ( 2023 )

PRELIMINARY PRINT
Volume 599 U. S. Part 1
Pages 110–139
OFFICIAL REPORTS
OF
THE SUPREME COURT
June 8, 2023
Page Proof Pending Publication
REBECCA A. WOMELDORF
reporter of decisions
NOTICE: This preliminary print is subject to formal revision before
the bound volume is published. Users are requested to notify the Reporter
of Decisions, Supreme Court of the United States, Washington, D.C. 20543,
pio@supremecourt.gov, of any typographical or other formal errors.
110 OCTOBER TERM, 2022
Syllabus
DUBIN v. UNITED STATES
certiorari to the united states court of appeals for
the fth circuit
No. 22–10. Argued February 27, 2023—Decided June 8, 2023
Petitioner David Dubin was convicted of healthcare fraud under 18 U. S. C.
§ 1347 after he overbilled Medicaid for psychological testing performed
by the company he helped manage. The question is whether, in de-
frauding Medicaid, he also committed “[a]ggravated identity theft”
under § 1028A(a)(1). Section 1028A(a)(1) applies when a defendant,
“during and in relation to any [predicate offense, such as healthcare
fraud], knowingly transfers, possesses, or uses, without lawful authority,
a means of identifcation of another person.” The Government argued
below that § 1028A(a)(1) was automatically satisfed because Dubin's
fraudulent Medicaid billing included the patient's Medicaid reimburse-
ment number—a “means of identifcation.” Bound by Fifth Circuit
precedent, the District Court allowed Dubin's conviction for aggravated
identity theft to stand, even though, in the District Court's view, the
Page Proof Pending Publication
crux of the case was fraudulent billing, not identity theft. The Fifth
Circuit sitting en banc affrmed in a fractured decision, with fve concur-
ring judges acknowledging that under the Government's reading of
§ 1028A(a)(1), “the elements of [the] offense are not captured or even
fairly described by the words ``identity theft.' ” 27 F. 4th 1021, 1024
(opinion of Richman, C. J.).
Held: Under § 1028A(a)(1), a defendant “uses” another person's means of
identifcation “in relation to” a predicate offense when the use is at the
crux of what makes the conduct criminal. Pp. 116–132.
(a) This case turns on the scope of two of § 1028A(a)(1)'s elements:
Dubin was convicted under § 1028A(a)(1) for “us[ing]” a patient's means
of identifcation “in relation to” healthcare fraud. On the Government's
view, a defendant “uses” a means of identifcation “in relation to” a pred-
icate offense if the defendant employs that means of identifcation to
facilitate or further the predicate offense in some way. Section
1028A(a)(1) would thus apply automatically any time a name or other
means of identifcation happens to be part of the payment or billing
method used in the commission of a long list of predicate offenses.
Dubin's more targeted reading requires that the use of a means of iden-
tifcation have “a genuine nexus” to the predicate offense. When the
underlying crime involves fraud or deceit, as many of § 1028A's predi-
cates do, this entails using a means of identifcation specifcally in a
fraudulent or deceitful manner, not as a mere ancillary feature of a pay-
Cite as: 599 U. S. 110 (2023) 111
Syllabus
ment or billing method. A careful examination of § 1028A(a)(1)'s text
and structure points to a narrower reading. Pp. 116–118.
(b) The terms “uses” and “in relation to” have been singled out by
this Court as being particularly sensitive to context. The “various
defnitions of ``use' imply action and implementation.” Bailey v. United
States, 516 U. S. 137, 145. Beyond that general concept, however, “ ``use'
takes on different meanings depending on context.” Id., at 143. This
requires looking “not only to the word itself, but also to the statute and
the [surrounding] scheme, to determine the meaning Congress in-
tended.” Ibid. “In relation to” is similarly context sensitive. If ex-
tended to its furthest reach, “relate to” would be practically limitless.
The phrase clearly refers to a relationship or nexus of some kind, but
the nature and strength of this relationship or nexus will be informed
by context. Because the presence of two such context-dependent terms
renders § 1028A(a)(1) doubly attuned to its surroundings, resort to con-
text is especially necessary. Pp. 118–119.
(c) Section 1028A(a)(1)'s title and terms both point toward reading
the provision to capture the ordinary understanding of identity theft,
where misuse of a means of identifcation is at the crux of the criminal-
ity. Pp. 120–127.
(1) Section 1028A is a focused, standalone provision, and its title—
Page Proof Pending Publication
“Aggravated identity theft”—suggests that identity theft is at the core
of § 1028A(a)(1). A statute's title has long been considered a “ ``too[l]
available for the resolution of a doubt' about the meaning of a statute.”
Almendarez-Tor res v. United States, 523 U. S. 224, 234. Section
1028A's title is especially valuable here because it does not summarize
a list of “complicated and prolifc” provisions, Trainmen v. Baltimore &
Ohio R. Co., 331 U. S. 519, 528, and also “reinforces what the text's nouns
and verbs independently suggest,” Yates v. United States, 574 U. S. 528,
552 (Alito, J., concurring in judgment). The Court has previously ob-
served the contrast between § 1028A's targeted title and the broad title
of neighboring provision § 1028: “ ``Fraud and related activity in connec-
tion with identifcation documents, authentication features, and informa-
tion.' ” Flores-Figueroa v. United States, 556 U. S. 646, 655. That
“Congress separated the [identity] fraud crime from the [identity] theft
crime in” § 1028A suggests that § 1028A is focused on identity theft spe-
cifcally, rather than all fraud involving means of identifcation. Ibid.
The Government urges the Court to ignore § 1028A's title, because
the Government's reading of the provision bears little resemblance to
ordinary understandings of “identity theft.” This broad reading would,
in practice, place garden-variety overbilling at the core of § 1028A. In-
stead, “identity theft” has a focused meaning: “[T]he fraudulent appro-
priation and use of another person's identifying data or documents,”
Webster's Unabridged Dictionary xi, or “[t]he unlawful taking and use
112 DUBIN v. UNITED STATES
Syllabus
of another person's identifying information for fraudulent purposes,”
Black's Law Dictionary 894. This understanding of identity theft sup-
ports a reading of “in relation to” where use of the means of identifca-
tion is at the crux of the underlying crime. And under these defni-
tions, identity theft occurs when a defendant “uses” the means of
identifcation itself to defraud others. Further, the inclusion of “aggra-
vated” in § 1028A's title suggests that Congress had in mind a particu-
larly serious form of identity theft, not just all manner of everyday
overbilling offenses. Pp. 120–124.
(2) Section 1028A(a)(1)'s language points in the same direction as
its title. In particular, Congress used a trio of verbs that refect an
ordinary understanding of identity theft. Section 1028A(a)(1) applies
when a defendant “knowingly transfers, possesses, or uses, without law-
ful authority, a means of identifcation of another person,” “during and in
relation to” any predicate offense. (Emphasis added.) The two verbs
neighboring “uses”—“transfers” and “possesses”—are most naturally
read in the context of § 1028A(a)(1) to connote not only theft, but ordi-
nary understandings of identity theft in particular, i. e., they point to
(1) theft of a (2) means of identifcation belonging to (3) another person.
Because “transfer” and “possess” channel ordinary identity theft, the
interpretative cannon noscitur a sociis (“ ``a word is known by the com-
Page Proof Pending Publication
pany it keeps,' ” McDonnell v. United States, 579 U. S. 550, 568–569)
indicates that “uses” should be read in a similar manner. In addition,
the Court “assume[s] that Congress used [three] terms because it in-
tended each term to have a particular, nonsuperfuous meaning.” Bai-
ley, 516 U. S., at 146. On a more targeted reading, § 1028A(a)(1)'s three
verbs capture the complexity of identity theft, which intermingles as-
pects of theft and fraud, misappropriation and deceitful use. While
“transfer” and “possess” conjure up two steps of theft, “uses” supplies
the deceitful use aspect. In contrast, if § 1028A(a)(1) is not read in this
narrow manner, then the two other verbs risk leaving “uses” without
“virtually any function.” Ibid. Pp. 124–127.
(d) The list of § 1028A(a)(1)'s predicate offenses creates additional
problems for the Government's broad reading. Section 1028A(a)(1)'s
enhancement adds a severe 2-year mandatory prison sentence onto un-
derlying offenses that do not impose any mandatory prison sentence at
all. The Government's reading, however, does not meaningfully distin-
guish between the aggravated identity theft crime that Congress sin-
gled out for heightened punishment and other crimes. Instead, so long
as the criteria for the broad predicate offenses are met, a defendant
faces an automatic 2-year sentence for generic overbilling that happens
to use names or other means of identifcation for routine billing and
payment. A far more sensible conclusion from the statutory structure
is that § 1028A(a)(1)'s enhancement targets situations where the means
Cite as: 599 U. S. 110 (2023) 113
Opinion of the Court
of identifcation itself is at the crux of the underlying criminality, not
just an ancillary billing feature. Pp. 127–129.
(e) In contrast to the staggering breadth of the Government's reading
of § 1028A, this Court has “ ``traditionally exercised restraint in assessing
the reach of a federal criminal statute,' ” Marinello v. United States,
584 U. S. –––, –––, and prudently avoided reading incongruous breadth
into opaque language in criminal statutes. See, e. g., Van Buren v.
United States, 593 U. S. –––. The vast sweep of the Government's read-
ing—under which everyday overbilling cases would account for the ma-
jority of violations—“underscores the implausibility of the Govern-
ment's interpretation.” Id., at –––. While the Government represents
that prosecutors will act responsibly in charging defendants under its
sweeping reading, this Court “cannot construe a criminal statute on the
assumption that the Government will ``use it responsibly.' ” McDon-
nell, 579 U. S., at 576. Pp. 129–131.
27 F. 4th 1021, vacated and remanded.
Sotomayor, J., delivered the opinion of the Court, in which Roberts,
C. J., and Thomas, Alito, Kagan, Kavanaugh, Barrett, and Jackson,
JJ., joined. Gorsuch, J., fled an opinion concurring in the judgment,
post, p. 133.
Page Proof Pending Publication
Jeffrey L. Fisher argued the cause for petitioner. With
him on the briefs were Pamela S. Karlan, Easha Anand,
Anton Metlitsky, Bruce Pettig, Jason Zarrow, and Michael
C. Gross.
Vivek Suri argued the cause for the United States. With
him on the brief were Solicitor General Prelogar, Assistant
Attorney General Polite, Deputy Solicitor General Feigin,
and Kevin J. Barber.*
Justice Sotomayor delivered the opinion of the Court.
There is no dispute that petitioner David Fox Dubin over-
billed Medicaid for psychological testing. The question is
whether, in defrauding Medicaid, he also committed “[a]ggra-
vated identity theft,” 18 U. S. C. § 1028A(a)(1), triggering a
*Briefs of amici curiae urging reversal were fled for the National Asso-
ciation of Criminal Defense Lawyers by Henry W. Asbill, Jill Winter, and
Barbara E. Bergman; for the National Association of Federal Defenders
by Andrew L. Adler, Judith H. Mizner, Davina T. Chen, and Shelley Fite;
and for Joel S. Johnson by Mr. Johnson, pro se.
114 DUBIN v. UNITED STATES
Opinion of the Court
mandatory 2-year prison sentence. The Fifth Circuit found
that he did, based on a reading of the statute that covers
defendants who fraudulently infate the price of a service or
good they actually provided. On that sweeping reading, as
long as a billing or payment method employs another per-
son's name or other identifying information, that is enough.
A lawyer who rounds up her hours from 2.9 to 3 and bills
her client electronically has committed aggravated identity
theft. The same is true of a waiter who serves fank steak
but charges for flet mignon using an electronic payment
method.
The text and context of the statute do not support such a
boundless interpretation. Instead, § 1028A(a)(1) is violated
when the defendant's misuse of another person's means of
identifcation is at the crux of what makes the underlying
offense criminal, rather than merely an ancillary feature of a
billing method. Here, the crux of petitioner's overbilling
was infating the value of services actually provided, while
Page Proof Pending Publication
the patient's means of identifcation was an ancillary part of
the Medicaid billing process.
I
David Dubin helped his father manage a psychological
services company. This company submitted a claim for re-
imbursement to Medicaid for psychological testing by a li-
censed psychologist. In fact, however, the claim overstated
the qualifcations of the employee who actually performed
the testing and who was only a licensed psychological associ-
ate. This falsehood infated the amount of reimbursement.
Petitioner also changed the date on which the examination
occurred.1 Even with the infation, the total reimbursement
was only $338. App. 49. Petitioner was accordingly
charged with healthcare fraud, a federal offense under 18
1
The parties dispute whether changing the date affected the availability
of Medicaid reimbursement. The Court does not reach that question, as
the outcome of this case would be the same either way.
Cite as: 599 U. S. 110 (2023) 115
Opinion of the Court
U. S. C. § 1347. According to the Government, however,
petitioner's conduct also constituted “[a]ggravated identity
theft” under § 1028A(a)(1).
Section 1028A(a)(1) applies when a defendant, “during and
in relation to any [predicate offense], knowingly transfers,
possesses, or uses, without lawful authority, a means of iden-
tifcation of another person.” The predicate offenses in-
clude, among many others, healthcare fraud. § 1028A(c)(4).
Section 1028A(a)(1) carries a severe penalty: a mandatory
minimum sentence of two years in prison “in addition to the
punishment” for the predicate offense.
According to the Government, this is a clear aggravated
identity theft case. The Government argued at trial that
§ 1028A(a)(1) was automatically satisfed because petitioner's
fraudulent billing included the patient's Medicaid reimburse-
ment number (a “means of identifcation”). The District
Court was less sure. “[T]his doesn't seem to be an aggra-
Page Proof Pending Publication
vated identity theft case,” the court explained, as “the whole
crux of this case is how [petitioner was] billing.” App. 37–
38. This overbilling was “criminal,” but it “wasn't aggra-
vated identity theft.” Id., at 38. Nevertheless, the District
Court denied petitioner's post-trial challenge to his aggra-
vated identity theft conviction, explaining that contrary
Fifth Circuit precedent tied its hands. The court said that
it “hope[d]” it would “get reversed.” Id., at 39.
On appeal, a Fifth Circuit panel affrmed. On rehearing
en banc, a fractured court affrmed again. Five judges who
agreed with the Government nonetheless acknowledged that
under the Government's reading of § 1028A(a)(1), “the ele-
ments of [the] offense are not captured or even fairly de-
scribed by the words ``identity theft.' ” 27 F. 4th 1021, 1024
(2022) (Richman, C. J., concurring). Eight dissenting judges
agreed on this point.
This type of prosecution is not uncommon. The Govern-
ment has, by its own admission, wielded § 1028A(a)(1) well
beyond ordinary understandings of identity theft. One
116 DUBIN v. UNITED STATES
Opinion of the Court
prosecution targeted a defendant who “made a counterfeit
handgun permit” for another person, using that person's real
name and at that person's request. United States v. Spears,
729 F. 3d 753, 754 (CA7 2013) (en banc). Another involved
unlicensed doctors who violated the law by “issu[ing] pre-
scriptions that their [actual] patients would then fll at . . .
pharmacies.” United States v. Berroa, 856 F. 3d 141, 148,
155–156 (CA1 2017). There was also a prosecution involving
an ambulance service infating its reimbursement rates by
“mischaracteriz[ing] the nature of the transports, saying that
the patients had required stretchers when they had not.”
United States v. Michael, 882 F. 3d 624, 628 (CA6 2018) (cit-
ing United States v. Medlock, 792 F. 3d 700, 705 (CA6 2015)).
Yet another prosecution involved a defendant who “provided
massage services to patients to treat their pain,” but improp-
erly billed this “as a Medicare-eligible physical therapy serv-
ice.” United States v. Hong, 938 F. 3d 1040, 1051 (CA9
2019).
Page Proof Pending Publication
Many lower courts have responded to such prosecutions
with more restrained readings of the aggravated identity
theft statute.2 The Fifth Circuit did not. To resolve the
confict in the courts below, this Court granted certiorari,
598 U. S. ––– (2022), and now vacates the judgment of the
Fifth Circuit and remands.3
II
A
This case turns on two of § 1028A(a)(1)'s elements. Of the
various possible ways to violate § 1028A(a)(1), petitioner was
convicted for “us[ing]” a patient's means of identifcation “in
2
See Berroa, 856 F. 3d, at 148, 155–157; Michael, 882 F. 3d, at 628;
Spears, 729 F. 3d, at 754; Hong, 938 F. 3d, at 1051.
3
The Government argued below that because petitioner did not properly
raise certain challenges to his § 1028A conviction, he cannot obtain relief
without meeting the higher bar for plain-error review. The Fifth Circuit
below did not decide that question, which this Court leaves for remand.
Cite as: 599 U. S. 110 (2023) 117
Opinion of the Court
relation to” healthcare fraud. The parties offer competing
readings of these two elements.
The Government reads the terms broadly and in isolation.
On the Government's view, “[a] defendant uses a means of
identifcation ``in relation to' a predicate offense if the use of
that means of identifcation ``facilitates or furthers' the predi-
cate offense in some way.” Brief for United States 10 (quot-
ing Smith v. United States, 508 U. S. 223, 232 (1993)). As to
“uses,” the Government seems just to mean “employ[s]” in
any sense. Brief for United States 5, 7, 10–11. Section
1028A(a)(1) would thus apply automatically any time a name
or other means of identifcation happens to be part of the
payment or billing method used in the commission of a long
list of predicate offenses. In other words, virtually all of
the time.
Petitioner, in response, offers a more targeted reading.
For petitioner, using a means of identifcation in relation to a
Page Proof Pending Publication
predicate offense requires “a genuine nexus to the predicate
offense.” Brief for Petitioner 15. On this reading, the
means of identifcation is at the crux of what makes the pred-
icate offense criminal, rather than merely an ancillary fea-
ture of a payment method. When the underlying crime in-
volves fraud or deceit, as many of § 1028A's predicates do,
this entails using a means of identifcation specifcally in a
fraudulent or deceitful manner.
To illustrate, petitioner borrows a heuristic from the Sixth
Circuit. See Michael, 882 F. 3d, at 628. The relevant lan-
guage in § 1028A(a)(1) “covers misrepresenting who received
a certain service,” but not “fraudulent claims regarding how
or when a service was performed.” Brief for Petitioner 15.
In other words, fraud going to identity, not misrepresenta-
tion about services actually provided. Take an ambulance
service that actually transported patients but infated the
number of miles driven. The crux of this fraud was “how”
services were rendered; the patients' names were part of the
billing process, but ancillary to what made the conduct fraud-
118 DUBIN v. UNITED STATES
Opinion of the Court
ulent. See Michael, 882 F. 3d, at 628–629. In contrast,
take the pharmacist who swipes information from the phar-
macy's fles and uses it to open a bank account in a patient's
name. That “misuse of th[e] means of identifcation” would
be “integral to” what made the conduct fraudulent, because
misrepresentation about who was involved was at the crux
of the fraud. Id., at 629.
In deciding between the parties' readings, one limited and
one near limitless, precedent and prudence require a careful
examination of § 1028A(a)(1)'s text and structure. While
“uses” and “in relation to” are, in isolation, indeterminate,
the statutory context, taken as a whole, points to a nar-
rower reading.
B
In interpreting the scope of “uses” and “in relation to,” the
Court begins with those terms themselves. Both terms
have been singled out by this Court as particularly sensitive
Page Proof Pending Publication
to context, and they do not, standing alone, conclusively re-
solve this case.
Start with “uses.” As the Court has observed more than
once, “the word ``use' poses some interpretational diffculties
because of the different meanings attributable to it.” Bai-
ley v. United States, 516 U. S. 137, 143 (1995); see also Leocal
v. Ashcroft, 543 U. S. 1, 9 (2004). The “ ``ordinary or natural'
meaning” of “ ``use' ” is “variously defned as ``[t]o convert to
one's service,' ``to employ,' ``to avail oneself of,' and ``to carry
out a purpose or action by means of.' ” Bailey, 516 U. S., at
145. “These various defnitions of ``use' imply action and
implementation.” Ibid. Beyond that general concept,
however, “ ``use' takes on different meanings depending on
context,” and because it “draws meaning from its context,
. . . we will look not only to the word itself, but also to the
statute and the [surrounding] scheme, to determine the
meaning Congress intended.” Id., at 143; see also Leocal,
543 U. S., at 9 (“Particularly when interpreting a statute that
features as elastic a word as ``use,' we construe language in
its context and in light of the terms surrounding it”).
Cite as: 599 U. S. 110 (2023) 119
Opinion of the Court
For example, the federal arson statute only applies to
buildings “ ``used in' commerce or commerce-affecting activ-
ity.” Jones v. United States, 529 U. S. 848, 850–851 (2000).
In that statutory context, the Court distinguished between
uses of a building as “the locus of any commercial undertak-
ing,” and noncovered “passive,” “passing,” or ancillary uses
of a building “as collateral to obtain and secure a mortgage”
or to obtain an insurance policy. Id., at 855–856. It is
statutory context, therefore, that determines what kind of
active employment or conversion to one's service triggers
§ 1028A(a)(1)'s harsh penalty.
“In relation to” is similarly context sensitive. If “ ``relate
to' were taken to extend to the furthest stretch of its indeter-
minacy, then for all practical purposes” there would be no
limits, as “ ``[r]eally, universally, relations stop nowhere.' ”
New York State Conference of Blue Cross & Blue Shield
Plans v. Travelers Ins. Co., 514 U. S. 645, 655 (1995) (quoting
H. James, Roderick Hudson xli (New York ed., World's Clas-
Page Proof Pending Publication
sics 1980)). This language thus cannot be “considered in iso-
lation,” Maracich v. Spears, 570 U. S. 48, 59 (2013), and the
Court must “go beyond the unhelpful text and the frustrat-
ing diffculty of defning [this] key term” and look to statu-
tory context. Travelers, 514 U. S., at 656. That the phrase
refers to a relationship or nexus of some kind is clear. See
Smith, 508 U. S., at 238 (“ ``[I]n relation to' ” requires “some
purpose or effect” between two things). Yet the kind of re-
lationship required, its nature and strength, will be informed
by context.
The presence of two such context-dependent terms ren-
ders § 1028A(a)(1) doubly attuned to its surroundings. The
parties' competing readings both fall within the range of
meanings of “uses” and “in relation to,” taken alone. Resort
to context is thus especially necessary here.4
4
The Government tries to head off any contextual analysis at the pass,
urging that “uses” and “during and in relation to” in § 1028A(a)(1) must
be read identically to Smith and other of this Court's cases interpreting
18 U. S. C. § 924(c)(1)(A). That provision applies to “any person who, dur-
120 DUBIN v. UNITED STATES
Opinion of the Court
C
Having found the key terms “use” and “in relation to” in-
determinate, the next step is to look to their surrounding
words. After all, “a statute's meaning does not always turn
solely on the broadest imaginable defnitions of its compo-
nent words.” Epic Systems Corp. v. Lewis, 584 U. S.
–––, ––– (2018) (internal quotation marks omitted). Instead,
“[l]inguistic and statutory context also matter.” Ibid.Even in cases where “the literal language of the statute is
neutral” in isolation, reading “the whole phrase” can point to
a more targeted reading. Marinello v. United States, 584
U. S. –––, ––– – ––– (2018).
Such is the case here. Section 1028A(a)(1)'s title and
terms both point to a narrower reading, one centered around
the ordinary understanding of identity theft. This cuts
against the Government's broad reading, which the Govern-
ment admits bears little relationship to the common under-
Page Proof Pending Publication
standing of identity theft. In contrast, a more targeted
reading accurately captures the ordinary understanding of
identity theft, where misuse of a means of identifcation is at
the crux of the criminality.
1
Start at the top, with the words Congress chose for
§ 1028A's title: “Aggravated identity theft.” 118 Stat. 831.
This Court has long considered that “ ``the title of a stat-
ing and in relation to any crime of violence or drug traffcking crime . . .
uses or carries a frearm.” One need look no further than this Court's
§ 924(c) case law to see why this argument fails. The teaching of those
cases is that because “use” “draws meaning from its context, . . . we will
look not only to the word itself, but also to the statute and the [broader]
scheme.” Bailey v. United States, 516 U. S. 137, 143 (1995). Section
1028A(a)(1) differs greatly from § 924(c), from the thing that is “used,” to
the title, to the nature of the predicate offenses to which the enhancement
relates. Words can wound, but names and numbers are not guns. If any-
thing, the ubiquity of names and their vast range of “uses” makes the
verb especially indeterminate in this context. For that same reason, the
Court's decision today does not alter its § 924(c) case law.
Cite as: 599 U. S. 110 (2023) 121
Opinion of the Court
ute and the heading of a section' are ``tools available for
the resolution of a doubt' about the meaning of a statute.”
Almendarez-Torres v. United States, 523 U. S. 224, 234 (1998)
(quoting Trainmen v. Baltimore & Ohio R. Co., 331 U. S. 519,
528–529 (1947)). A title will not, of course, “override the
plain words” of a statute. Fulton v. Philadelphia, 593 U. S.
–––, ––– (2021). Yet here, the key terms are so “elastic” that
they must be construed “in light of the terms surrounding
[them],” Leocal, 543 U. S., at 9, and the title Congress chose
is among those terms. Even the Government acknowledged
that if the terms in § 1028A(a)(1) are unclear, “the title is a
useful clue.” Tr. of Oral Arg. 80.
Two additional points bolster this approach. First, the
title here is not serving the unenviable role of pithily summa-
rizing a list of “complicated and prolifc” provisions. Train-
men, 331 U. S., at 528. Section 1028A is a focused, stand-
alone provision. Second, a title is “especially valuable
[where] it reinforces what the text's nouns and verbs inde-
Page Proof Pending Publication
pendently suggest.” Yates v. United States, 574 U. S. 528,
552 (2015) (Alito, J., concurring in judgment). As explained
below, § 1028A(a)(1)'s text independently suggests a focus on
identity theft. See infra, at 124–127.
Indeed, this Court has already once used § 1028A's title
and place in the statutory scheme to shed light on its text.
In Flores-Figueroa v. United States, 556 U. S. 646 (2009),
this Court pointed out that a neighboring provision, § 1028,
carries the broad title “ ``Fraud and related activity in connec-
tion with identifcation documents, authentication features,
and information.' ” Id., at 655. Section 1028A, in contrast,
is far more targeted, “us[ing] the words ``identity theft.' ”
Ibid. That “Congress separated the [identity] fraud crime
from the [identity] theft crime in” § 1028A suggests that
§ 1028A is focused on identity theft specifcally, rather than
all fraud involving means of identifcation. Ibid.5
5
Flores-Figueroa held that under § 1028A(a)(1) a defendant must know
“that the ``means of identifcation' he or she unlawfully transferred, pos-
sessed, or used, in fact, belonged to ``another person.' ” 556 U. S., at 647.
122 DUBIN v. UNITED STATES
Opinion of the Court
Given that, it is abundantly clear why the Government
urges the Court to ignore the title. The Government's
broad reading, covering any time another person's means of
identifcation is employed in a way that facilitates a crime,
bears little resemblance to any ordinary meaning of “identity
theft.” Consider again an unlicensed doctor who flls out a
prescription actually requested by a patient; no one would
call that identity theft. Even judges below who agreed with
the Government's reading of § 1028A(a)(1), and ultimately
the Government itself, acknowledged that its reading of
§ 1028A(a)(1) does not fairly capture the ordinary meaning of
identity theft. Nor is the difference just around the edges;
the Government's reading would, in practice, place garden-
variety overbilling at the core of § 1028A.
Instead, “identity theft” has a focused meaning. One
dictionary defnes identity theft as “the fraudulent appropri-
ation and use of another person's identifying data or docu-
ments, as a credit card.” Webster's Unabridged Dictionary
Page Proof Pending Publication
xi (2d ed. 2001) (Webster's). Another similarly offers “[t]he
unlawful taking and use of another person's identifying infor-
mation for fraudulent purposes; specif[ically] a crime in
which someone steals personal information about and belong-
ing to another, such as a bank-account number or driver's-
license number, and uses the information to deceive others.”
Black's Law Dictionary 894 (11th ed. 2019) (Black's) (defning
“identity theft”).6
This supports a reading of “in relation to” where use of
the means of identifcation is at the crux of the underlying
criminality. These defnitions refer to offenses built around
what the defendant does with the means of identifcation in
particular. In other words, the means of identifcation spe-
The Court not only looked to § 1028A(a)(1)'s theft-focused title and role in
the statutory structure, but also drew on an understanding that the provi-
sion covers “classic identity theft.” Id., at 655–656.
6
“Steal[ing]” can, of course, include situations where something was ini-
tially lawfully acquired. See Black's 1710 (defning “steal”).
Cite as: 599 U. S. 110 (2023) 123
Opinion of the Court
cifcally is a key mover in the criminality. This central role
played by the means of identifcation, which serves to desig-
nate a specifc person's identity, explains why we say that
the “identity” itself has been stolen. See, e. g., Spears, 729
F. 3d, at 756 (“identity theft” occurs when someone's “iden-
tity has been stolen or misappropriated”). This helps ex-
plain why the examples resulting from the Government's
theory do not sound like identity theft. If a lawyer rounds
up her hours from 2.9 to 3 and bills her client using his name,
the name itself is not specifcally a source of fraud; it only
plays an ancillary role in the billing process. The same is
true for the waiter who substitutes one cut of meat for an-
other; we might say the flet mignon's identity was stolen,
perhaps, but not the diner's.
This understanding of identity theft also supports a more
targeted defnition of “uses.” The word “use” appears in
these defnitions with a specifc meaning: Identity theft en-
Page Proof Pending Publication
compasses when a defendant “uses the information to de-
ceive others,” Black's 894 (emphasis added), and “the fraudu-
lent . . . use” of a means of identifcation, Webster's xi
(emphasis added). In other words, identity theft is com-
mitted when a defendant uses the means of identifcation it-
self to defraud or deceive. This tracks the Sixth Circuit's
heuristic. When a means of identifcation is used decep-
tively, this deception goes to “who” is involved, rather than
just “how” or “when” services were provided. Use of the
means of identifcation would therefore be at “the locus of
[the criminal] undertaking,” rather than merely “passive,”
“passing,” or ancillary employment in a crime. Jones, 529
U. S., at 855–856.
On top of that, § 1028A's title is not just “identity theft,”
but “Aggravated identity theft.” Typically, “[a]n ``aggra-
vated' offense is one ``made worse or more serious by circum-
stances such as violence, the presence of a deadly weapon,
or the intent to commit another crime.' ” Carachuri-
Rosendo v. Holder, 560 U. S. 563, 574 (2010) (quoting Black's
124 DUBIN v. UNITED STATES
Opinion of the Court
Law Dictionary 75 (9th ed. 2009)). This suggests that Con-
gress had in mind a particularly serious form of identity
theft. Yet the Government's reading “would apply an ``ag-
gravated' . . . label” to all manner of everyday overbilling
offenses. Carachuri-Rosendo, 560 U. S., at 574. “Of course
. . . Congress, like ``Humpty Dumpty,' has the power to give
words unorthodox meanings.” Id., at 575. Yet where “the
Government argues for a result that the English language
tells us not to expect, . . . we must be very wary of the
Government's position.” Ibid. (internal quotation marks
omitted).
The title suggests identity thef t is at the core of
§ 1028A(a)(1). On the Government's reading, however, ev-
eryday overbilling would become the most common trigger
for § 1028A(a)(1)'s severe penalty. This would turn the core
of “worse or more serious” identity theft into something the
ordinary user of the English language would not consider
identity theft at all.
Page Proof Pending Publication 2
The title is, by defnition, just the beginning. A title does
not supplant the actual text of the provision, as the Govern-
ment observes. The problem for the Government is that
§ 1028A(a)(1)'s language points in the same direction as its
title. In particular, Congress used a trio of verbs that re-
fect an ordinary understanding of identity theft.
While “uses” is indeterminate in isolation, here it has com-
pany. Section 1028A(a)(1) applies when a defendant “know-
ingly transfers, possesses, or uses, without lawful authority,
a means of identifcation of another person,” “during and
in relation to” any predicate offense. (Emphasis added.)
“Under the familiar interpretive canon noscitur a sociis, ``a
word is known by the company it keeps.' ” McDonnell v.
United States, 579 U. S. 550, 568–569 (2016) (quoting Jarecki
v. G. D. Searle & Co., 367 U. S. 303, 307 (1961)). “[T]his
canon is often wisely applied where a word is capable of
many meanings in order to avoid the giving of unintended
Cite as: 599 U. S. 110 (2023) 125
Opinion of the Court
breadth to the Acts of Congress.” McDonnell, 579 U. S., at
569 (internal quotation marks omitted).
The two neighboring verbs here, “transfers” and “pos-
sesses, ” are most naturally read in the context of
§ 1028A(a)(1) to connote theft. While it is not necessary to
determine the precise metes and bounds of these two verbs,
their role in the provision points to this targeted reading.
Section 1028A(a)(1) covers unlawful possession or transfer
of a means of identifcation belonging to “another person.”
Generally, to unlawfully “possess” something belonging to
another person suggests it has been stolen. And to unlaw-
fully “transfer” something belonging to another person simi-
larly connotes misappropriating it and passing it along. In
Flores-Figueroa, this Court drew a similarly intuitive link
between a defendant taking a means of identifcation he
knows belongs to another person and “ ``theft.' ” 556 U. S.,
at 655. The Government, at argument, agreed: these two
Page Proof Pending Publication
verbs “refer to circumstances in which the information is sto-
len.” Tr. of Oral Arg. 90.7
“Transfer” and “possess” not only connote theft, but iden-
tity theft in particular. The verbs point to (1) theft of a (2)
means of identifcation belonging to (3) another person.
That tracks ordinary understandings of identity theft: “a
crime in which someone [1] steals [2] personal information
about and [3] belonging to another.” Black's 894. Simi-
larly, “the [1] fraudulent appropriation and use of [3] another
person's [2] identifying data or documents.” Webster's xi.
If this parallel were not enough, § 1028A(a)(1)'s title indicates
7
Those who fnd legislative history helpful will fnd yet further support.
“[P]ossesses” refers to “someone who has wrongly acquired another's
means of identifcation, but has not yet put it to use or transferred it
elsewhere.” H. R. Rep. No. 108–528, p. 10 (2004). “[T]ransfers” is when
the defendant “transferred it to another person or location where it can
be put to use.” Ibid. And “uses” is when “a defendant . . . obtained
someone else's means of identifcation and actually put that means of iden-
tifcation to use.” Ibid.
126 DUBIN v. UNITED STATES
Opinion of the Court
that the type of theft its verbs connote is identity theft
specifcally.
Because “transfer” and “possess” channel ordinary iden-
tity theft, noscitur a sociis indicates that “uses” should be
read in a similar manner to its companions. See McDonnell,
579 U. S., at 568–569. “Uses” is quite amenable to such a
reading, and not just because of its indeterminacy. As ex-
plained above, “using” another person's means of identifca-
tion to deceive or defraud is a common feature of identity
theft. See Webster's xi (“the fraudulent . . . use” of a means
of identifcation (emphasis added)); Black's 894 (when a de-
fendant “uses the information to deceive others” (emphasis
added)).
Congress thus employed a trio of verbs that capture vari-
ous aspects of “classic identity theft.” Flores-Figueroa, 556
U. S., at 656. There is “the defendant [who] has gone
through someone else's trash to fnd discarded credit card
Page Proof Pending Publication
and bank statements,” ibid., and thus has taken possession
unlawfully. There is the bank employee who passes along
customer information to an accomplice, and thus transfers it
unlawfully. Then there is use involving fraud or deceit
about identity: “a defendant [who] has used another person's
identifcation information to get access to that person's bank
account.” Ibid.Another canon of construction offers a further point in
favor of this narrow interpretation. The Court “assume[s]
that Congress used [three] terms because it intended each
term to have a particular, nonsuperfuous meaning.” Bai-
ley, 516 U. S., at 146. Reading § 1028A(a)(1)'s operative
verbs as tracking aspects of classic identity theft, each verb
has an independent role to play. As the defnitions reveal,
identity theft covers both when “someone steals personal in-
formation about and belonging to another . . . and uses the
information to deceive others,” Black's 894 (emphasis added),
and “fraudulent appropriation and use,” Webster's xi (em-
phasis added). Identity theft thus intermingles aspects of
Cite as: 599 U. S. 110 (2023) 127
Opinion of the Court
theft and fraud, misappropriation and deceitful use. Section
1028A(a)(1)'s three verbs capture this complexity. While
“transfer” and “possess” conjure up two steps of theft,
“uses” supplies the deceitful use aspect.
In contrast, if § 1028A(a)(1)'s verbs do not track identity
theft and if the means of identifcation need only facilitate
the predicate offense, the other two verbs threaten to leave
“uses” without “virtually any function.” Bailey, 516 U. S.,
at 146. Return to a defnition of “in relation to” that just
means “ ``facilitates or furthers' the predicate offense in some
way.” Brief for United States 10. In virtually all cases
where a defendant employs a means of identifcation to facili-
tate a crime, the defendant will also possess or transfer the
means of identifcation in a way that facilitates the crime.
For example, petitioner's possession of the patient's means
of identifcation facilitated the fraud, as did petitioner's
transfer of the patient's means of identifcation to Medicaid.
It is hard to imagine when “uses” would not similarly be
Page Proof Pending Publication
covered by, at least, one of the two other verbs. This risk
of superfuity suggests giving § 1028A(a)(1) a more precise
reading.
In sum, § 1028A(a)(1)'s title and text are mutually reinforc-
ing. Both point toward requiring the means of identifcation
to be at the crux of the criminality.
D
Section 1028A's list of predicate offenses points to yet an-
other stumbling block for the Government's broad reading.
Section 1028A(a)(1) is an enhancement, and a severe one at
that. It adds a 2-year mandatory prison sentence onto un-
derlying offenses that do not impose a mandatory prison sen-
tence of any kind. See, e. g., 18 U. S. C. § 1035 (“[f]alse state-
ments relating to health care matters,” setting no minimum
sentence). This prevents sentencing judges from consider-
ing the severity of the offense, even if the amount of money
involved was quite small or there are other mitigating fac-
128 DUBIN v. UNITED STATES
Opinion of the Court
tors. Interpretation of § 1028A(a)(1) should thus refect the
“distinction between” the aggravated identity theft crimes
that “Congress sought to distinguish for heightened punish-
ment and other crimes.” Leocal, 543 U. S., at 11.
Far from distinguishing, the Government's reading col-
lapses the enhancement into the enhanced. Here, the Gov-
ernment claims that because petitioner's overbilling was
facilitated by the patient's Medicaid reimbursement number,
§ 1028A(a)(1) automatically applies. Patient names or other
identifers will, of course, be involved in the great majority
of healthcare billing, whether Medicare for massages, Hong,
938 F. 3d, at 1051, or for ambulance stretcher services, Med-
lock, 792 F. 3d, at 706. Patient names will be on prescrip-
tions, Berroa, 856 F. 3d, at 148, 155–156, and patients com-
mitting fraud on their own behalf will often have to include
the names of others on their forms, such as doctors or em-
ployers. Under the Government's own reading, such cases
are “automatically identity theft,” Tr. of Oral Arg. 82, inde-
Page Proof Pending Publication
pendent of whether the name itself had anything to do with
the fraudulent aspect of the offense.
Nor are these implications confned to healthcare. Sec-
tion 1028A(a)(1)'s predicates include a vast array of offenses,
including wire fraud and mail fraud. § 1028A(c)(5). The
Government's boundless reading of “uses” and “in relation
to” would cover facilitating mail fraud by using another per-
son's name to address a letter to them.8 Even beyond that,
8
To avoid this, the Government has advanced a medley of shifting and
inconsistent readings of “without lawful authority,” another element of
§ 1028A(a)(1). Sometimes the Government has claimed that a defendant
would not violate § 1028A(a)(1) if they had permission to use a means of
identifcation to commit a crime. See Brief for United States 32 (“every-
one is presumed to have permission to use other people's names” in certain
ways to facilitate crimes, such as addressing a letter); id., at 31–32 (a
defendant can have “lawful authority” to use a co-conspirator's name to
commit bank fraud). Other times the Government has argued that no one
ever has permission to commit a crime. App. 32 (a person “can't give
someone [else] permission” to use their name to facilitate a crime); Tr. of
Cite as: 599 U. S. 110 (2023) 129
Opinion of the Court
names or other means of identifcation are used routinely for
billing and payment, whether payment apps, credit and debit
cards, a bill sent by mail, or an invoice sent electronically.
So long as the criteria for the broad predicate offenses are
met, the Government's reading creates an automatic 2-year
sentence for generic overbilling that happens to use ubiqui-
tous payment methods.
A far more sensible conclusion from the statutory struc-
ture is that § 1028A(a)(1)'s enhancement is not indiscrimi-
nate, but targets situations where the means of identifcation
itself plays a key role—one that warrants a 2-year manda-
tory minimum. This points once more to a targeted reading,
where the means of identifcation is at the crux of the under-
lying criminality, not an ancillary feature of billing.
E
If more were needed, a fnal clue comes from the stagger-
Page Proof Pending Publication
ing breadth of the Government's reading. This Court has
“ ``traditionally exercised restraint in assessing the reach of
a federal criminal statute.' ” Marinello, 584 U. S., at –––
(quoting United States v. Aguilar, 515 U. S. 593, 600 (1995));
see also Arthur Andersen LLP v. United States, 544 U. S.
696, 703–704 (2005); McBoyle v. United States, 283 U. S. 25,
27 (1931). This restraint arises “both out of deference to
the prerogatives of Congress and out of concern that a fair
warning should be given to the world in language that the
common world will understan[d] of what the law intends to
do if a certain line is passed.” Marinello, 584 U. S., at –––
(internal quotation marks omitted). After all, “[c]rimes are
supposed to be defned by the legislature, not by clever
Oral Arg. 91–92 (doctor would violate § 1028A(a)(1) even if patient granted
permission to use his name in the fraud). The Court need not, and does
not, reach the proper interpretation of “without lawful authority.” Suffce
it to say, these attempts to rein in § 1028A(a)(1) through another element
of the statute show that the Government itself understands the problems
that arise from its sweeping reading of “uses” and “in relation to.”
130 DUBIN v. UNITED STATES
Opinion of the Court
prosecutors riffng on equivocal language.” Spears, 729
F. 3d, at 758.
Time and again, this Court has prudently avoided reading
incongruous breadth into opaque language in criminal stat-
utes. In Van Buren v. United States, 593 U. S. ––– (2021),
the “far-reaching consequences” of the Government's reading
“underscore[d] the implausibility of the Government's inter-
pretation.” Id., at –––. In Marinello, the Court rejected
the Government's reading of a statute about obstructing ad-
ministration of the Tax Code that would have swept in the
“person who pays a babysitter $41 per week in cash without
withholding taxes,” as well as someone who “leaves a large
cash tip in a restaurant, fails to keep donation receipts from
every charity to which he or she contributes, or fails to pro-
vide every record to an accountant.” 584 U. S., at –––. Nor
was all such conduct innocent, as the statute required an
individual to act “ ``corruptly.' ” Id., at –––. Even still,
“[h]ad Congress intended” to sweep so far, “it would have
Page Proof Pending Publication
spoken with more clarity than it did.” Id., at –––. In
Yates, the Court held that the Government's “unrestrained”
reading would have turned a provision focused on “records”
and “documents” into “an all-encompassing ban on the spolia-
tion of evidence” that would “sweep within its reach physical
objects of every kind,” including a fsh. 574 U. S., at 536,
540 (plurality opinion). Had Congress set out to do so, “one
would have expected a clearer indication of that intent.”
Id., at 540.
So too here. The Government's reading would sweep in
the hour-infating lawyer, the steak-switching waiter, the
building contractor who tacks an extra $10 onto the price of
the paint he purchased. So long as they used various com-
mon billing methods, they would all be subject to a manda-
tory two years in federal prison. To say that such a result
is implausible would be an understatement.9 Because ev-
9
Even the Government had trouble stomaching some of these results,
offering inconsistent accounts of certain examples. The Government
claimed, for example, that if “an applicant for a bank loan . . . slightly
Cite as: 599 U. S. 110 (2023) 131
Opinion of the Court
eryday overbilling cases would account for the majority of
violations in practice, the Government's reading places at the
core of the statute its most improbable applications.
Finally, the Government makes a familiar plea: There is
no reason to mistrust its sweeping reading, because prosecu-
tors will act responsibly. To this, the Court gives a just-as-
familiar response: We “cannot construe a criminal statute on
the assumption that the Government will ``use it responsi-
bly.' ” McDonnell, 579 U. S., at 576 (quoting United States
v. Stevens, 559 U. S. 460, 480 (2010)). “[T]o rely upon prose-
cutorial discretion to narrow the otherwise wide-ranging
scope of a criminal statute's highly abstract general statu-
tory language places great power in the hands of the prose-
cutor.” Marinello, 584 U. S., at –––. This concern is par-
ticularly 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 manda-
tory prison sentence over the head of any defendant who is
Page Proof Pending Publication
considering going to trial.
III
All the points above are different wells drawing from the
same source. The Court need not decide whether any of
these points, standing alone, would be dispositive. Taken
together, from text to context, from content to common
sense, § 1028A(a)(1) is not amenable to the Government's at-
tempt to push the statutory envelope. A defendant “uses”
another person's means of identifcation “in relation to” a
predicate offense when this use is at the crux of what makes
the conduct criminal. 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.” Post, at 135, 137–138 (Gorsuch, J., concurring in
judgment). Instead, with fraud or deceit crimes like the
infates his salary while correctly identifying the co-signer,” “the inclusion
of the co-signer's name is not ``in relation to' the fraud.” Brief for United
States 31–32 (some internal quotation marks omitted). This cannot be
squared with the Government's own “facilitates” standard.
132 DUBIN v. UNITED STATES
Opinion of the Court
one in this case, the means of identifcation specifcally must
be used in a manner that is fraudulent or deceptive. Such
fraud or deceit going to identity can often be succinctly sum-
marized as going to “who” is involved.10
Here, petitioner's use of the patient's name was not at the
crux of what made the underlying overbilling fraudulent.
The crux of the healthcare fraud was a misrepresentation
about the qualifcations of petitioner's employee. The pa-
tient's name was an ancillary feature of the billing method
employed. The Sixth Circuit's more colloquial formulation
is a helpful guide, though like any rule of thumb it will have
its limits. Here, however, it neatly captures the thrust of
the analysis, as petitioner's fraud was in misrepresenting
how and when services were provided to a patient, not who
received the services.
* * *
Because petitioner did not use the patient's means of iden-
tifcation in relation to a predicate offense within the mean-
Page Proof Pending Publication
ing of § 1028A(a)(1), the judgment of the Court of Appeals is
vacated, and the case is remanded for further proceedings
consistent with this opinion.
It is so ordered.
10
Adrift in a blizzard of its own hypotheticals, the concurrence believes
that it is too diffcult to discern when a means of identifcation is at the
crux of the underlying criminality. Post, at 136. The concurrence's be-
wilderment is not, fortunately, the standard for striking down an Act of
Congress as unconstitutionally vague. There will be close cases, cer-
tainly, but that is commonplace in criminal law. Equally commonplace are
requirements that something play a specifc role in an offense, whether
that role is articulated as a “nexus,” Marinello v. United States, 584 U. S.
–––, ––– (2018), a “locus,” Jones v. United States, 529 U. S. 848, 855–856
(2000), or “proximate cause,” Robers v. United States, 572 U. S. 639, 645
(2014). Such requirements are not always simple to apply. Yet resolving
hard cases is part of the judicial job description. Hastily resorting to
vagueness doctrine, in contrast, would hobble legislatures' ability to draw
nuanced lines to address a complex world. Such an approach would also
leave victims of actual aggravated identity theft, a serious offense, without
the added protection of § 1028A(a)(1).
Cite as: 599 U. S. 110 (2023) 133
Gorsuch, J., concurring in judgment
Justice Gorsuch, concurring in the judgment.
Whoever among you is not an “aggravated identity thief,”
let him cast the frst stone. The United States came to this
Court with a view of 18 U. S. C. § 1028A(a)(1) that would affx
that unfortunate label on almost every adult American.
Every bill splitter who has overcharged a friend using a
mobile-payment service like Venmo. Every contractor who
has rounded up his billed time by even a few minutes.
Every college hopeful who has overstated his involvement in
the high school glee club. All of those individuals, the
United States says, engage in conduct that can invite a man-
datory 2-year stint in federal prison. The Court today
rightly rejects that unserious position. But in so holding, I
worry the Court has stumbled upon a more fundamental
problem with § 1028A(a)(1). That provision is not much bet-
ter than a Rorschach test. Depending on how you squint
your eyes, you can stretch (or shrink) its meaning to convict
Page Proof Pending Publication
(or exonerate) just about anyone. Doubtless, creative prose-
cutors and receptive judges can do the same. Truly, the
statute fails to provide even rudimentary notice of what it
does and does not criminalize. We have a term for laws like
that. We call them vague. And “[i]n our constitutional
order, a vague law is no law at all.” United States v. Davis,
588 U. S. –––, ––– (2019).
The “[a]ggravated identity theft” statute stipulates that
“[w]hoever, during and in relation to any felony violation”
listed in a later subsection, “knowingly transfers, possesses,
or uses, without lawful authority, a means of identifcation of
another person shall, in addition to the punishment provided
for such felony, be sentenced to a term of imprisonment of 2
years.” § 1028A(a)(1). Today, the Court sets out to deter-
mine what conduct that law reaches. It is, as the Court ac-
knowledges, no easy task. Both the term “us[e]” and the
phrase “in relation to” can support a multitude of possible
meanings. Ante, at 118–119. They of course “ ``imply action
and implementation.' ” Ante, at 118 (quoting Bailey v.
134 DUBIN v. UNITED STATES
Gorsuch, J., concurring in judgment
United States, 516 U. S. 137, 145 (1995)). Beyond that “gen-
eral concept,” however, we must fend for ourselves based
only on limited contextual clues. Ante, at 118–119.
The United States offers up a rapacious interpretation
that would require only “the use of th[e] means of identifca-
tion [to] ``facilitat[e] or furthe[r]' the predicate offense in some
way.” Brief for United States 10 (emphasis added). Ad-
mittedly, this reading “fall[s] within the range” of plausible
meanings the statute could support. Ante, at 119. But so
too do other readings—ones that require a more demanding
“nexus” between the “means of identifcation” and the under-
lying misconduct. Ante, at 119–120. For many of the rea-
sons the Court gives (and more besides), I agree that we
must adhere to those more restrained offerings. The
United States' maximalist approach has simplicity on its side,
yes; an everybody-is-guilty standard is no challenge to ad-
minister. But the Constitution prohibits the Judiciary from
Page Proof Pending Publication
resolving reasonable doubts about a criminal statute's mean-
ing by rounding up to the most punitive interpretation its
text and context can tolerate. See Wooden v. United States,
595 U. S. –––, ––– – ––– (2022) (Gorsuch, J., concurring in
judgment). That insight alone means Mr. Dubin's
§ 1028A(a)(1) conviction cannot stand.
Unfortunately, our opinion cannot end there. Having told
lower courts how not to read the statute, we owe them some
guidance as to how they should read it. That is where the
real challenge begins. Drawing on contextual clues and
rules of statutory interpretation, the Court concludes that a
violation of § 1028A(a)(1) occurs whenever the “use of the
means of identifcation is at the crux of the underlying crimi-
nality.” Ante, at 122 (emphasis added). “In other words,
the means of identifcation specifcally” must be in some way
“a key mover in the criminality.” Ante, at 122–123 (empha-
sis added). Put still another way, the “means of identifca-
tion” must play the (or maybe a) “central role” in the com-
mission of the offense. Ante, at 123 (emphasis added).
Cite as: 599 U. S. 110 (2023) 135
Gorsuch, J., concurring in judgment
Setting aside some defnite-article inconsistency, those for-
mulations all sound sensible enough. On closer review, how-
ever, they present intractable interpretive challenges of
their own. When, exactly, is a “means of identifcation” “at
the crux,” “a key mover,” or a “central role” player in an
offense? No doubt, the answer “turns on causation, or at
least causation often helps to answer the question.” United
States v. Michael, 882 F. 3d 624, 628 (CA6 2018). The Court
agrees but stresses that “a causal relationship” of any kind
will not suffce. Ante, at 131. At the same time, however,
it studiously avoids indicating whether the appropriate
standard is proximate cause or something else entirely novel.
Ibid. All of which gives rise to further questions. In vir-
tually every fraud, a “means of identifcation” plays some
critical role in the fraud's success—good luck committing a
mail or wire fraud, for instance, without relying heavily on
the name of the victim and likely the names of other third
Page Proof Pending Publication
parties. Just how much “causation” must a prosecutor es-
tablish to sustain a § 1028A(a)(1) conviction? For that mat-
ter, how does one even determine the extent to which a
“means of identifcation” “caused” an offense, as compared to
the many other necessary inputs?
The Court supplies no frm answer. Instead, it leans on
various illustrations that only highlight the diffculties inher-
ent in this exercise. Take, for instance, the Court's assur-
ance that a “waiter who serves fank steak but charges for
flet mignon using an electronic payment method” has not
committed aggravated identity theft. Ante, at 114, 123.
Why not, exactly? In one sense, the “means of identifca-
tion” (the credit card) lies “at the crux” of the fraud. The
restaurant uses it to charge the customer for a product it
never supplied. Maybe that feels less distasteful than a sce-
nario in which an overseas hacker steals an individual's
credit card information and deploys it to order luxury goods
on Amazon. But the Constitution's promise of due process
means that criminal statutes must provide rules “knowable
136 DUBIN v. UNITED STATES
Gorsuch, J., concurring in judgment
in advance,” not intuitions discoverable only after a prosecu-
tor has issued an indictment and a judge offers an opinion.
Percoco v. United States, 598 U. S. 319, 337 (2023) (Gorsuch,
J., concurring in judgment).
Not yet convinced? Consider some tweaks to the Court's
hypothetical. Suppose that, instead of misrepresenting the
cut of its steaks, a restaurant charged a customer for an ap-
petizer he ordered that never arrived. What about an appe-
tizer he never ordered? An additional entrée? Three?
Three plus a $5,000 bottle of Moët? How about a Boeing
737? Now suppose the restaurant ran the customer's credit
card for the same steak twice. What if it waited an hour to
do so? A day? A year? What if the waiter gave the
credit card information to a different employee at the same
restaurant to run the charge? A different employee at a
different restaurant? What if the restaurant sold the cus-
tomer's credit card information on the dark web, and another
Page Proof Pending Publication
restaurant ran the card for flet mignon? On the Court's
telling, the “crux” of the fraud in some of these examples lies
merely in “how and when services were provided,” while in
others the “crux” involves “who received the services.”
Ante, at 132. But how to tell which is which?
The Court's “crux” test seemingly offers no sure way
through this “blizzard of . . . hypotheticals.” Ibid., n. 10.
Nor is that because I have cherry-picked “hard cases.”
Ibid. Scenarios like these—and variations of them—illus-
trate the sorts of problems that invariably arise in even
simple § 1028A(a)(1) cases involving bogus restaurant bills.
Other contexts can present still greater complications and
still deeper uncertainties. The problem we face, then, is not
that § 1028A(a)(1) presents some hard cases at its edges; the
problem is this statute has no easy cases. Really, you could
spend a whole day cooking up scenarios—ranging from the
mundane to the fanciful—that collapse even your most basic
intuitions about what § 1028A(a)(1) does and does not crimi-
nalize. Try making up some of your own and running them
Cite as: 599 U. S. 110 (2023) 137
Gorsuch, J., concurring in judgment
by a friend or family member. You may be surprised at how
sharply instincts diverge.
For the less adventurous, consider just the facts of the
case now before us. On one framing, it seems outrageous to
convict Mr. Dubin of aggravated identity theft. After all,
the patient did (at one point) receive psychological testing.
So you might say, as the Court does, that Mr. Dubin lied only
about the qualifcations of the individual who provided those
services and the date on which they occurred. See ante, at
119, 132. But on another framing, the patient's identity was
“a key mover,” perhaps even “at the crux,” of the fraud.
Mr. Dubin could not have successfully billed the insurance
provider without accurately offering up some specifc pa-
tient's name and information. Nor, as the United States
notes, could Mr. Dubin have simply drawn a random name
from a hat. Rather, his fraud depended on purloining the
specifc identity of a “Texas Medicaid enrollee who had at
Page Proof Pending Publication
least three hours of psychological-testing reimbursement left
in his or her account.” Brief for United States 13. Along
the way, Mr. Dubin's fraud directly harmed the patient
by depriving him of his annual eligibility for otherwise-
compensable psychological services. From the patient's
perspective, Mr. Dubin's use of his “means of identifcation”
could hardly feel “ancillary.” Ante, at 114.
As an abstract exercise, debating fact patterns like these
may seem good fun. But there is nothing entertaining
about a 2-year mandatory federal prison sentence. Criminal
statutes are not games to be played in the car on a cross-
country road trip. To satisfy the constitutional minimum of
due process, they must at least provide “ordinary people”
with “fair notice of the conduct [they] punis[h].” Johnson v.
United States, 576 U. S. 591, 595 (2015). And, respectfully,
I do not see how § 1028A(a)(1) can clear that threshold.
Under the Court's “crux” test, no boundary separates con-
duct that gives rise to liability from conduct that does not.
And it appears I share this concern with the very lower
138 DUBIN v. UNITED STATES
Gorsuch, J., concurring in judgment
court judges who will have to apply this standard prospec-
tively. As even many of the Fifth Circuit dissenters below
warned, the sort of “facilitation standard” the Court today
adopts, “with its incidental/integral dividing line,” is un-
workable because it “lacks clear lines and a limiting princi-
ple.” 27 F. 4th 1021, 1042 (2022) (en banc) (Costa, J., dissent-
ing). In the end, it is hard not to worry that the Court's
“crux” test will simply become a fg leaf for judges' and ju-
rors' own subjective moral judgments about whether (as the
Court itself puts it) the defendant's crime is “one that war-
rants a 2-year mandatory minimum.” Ante, at 129.
I do not question that the Court today has done the best
it might to make sense of this statute. It's just that it faces
an impossible task. In the past when this Court has grap-
pled with similar statutory language, it has done so in con-
texts where the relevant terms could carry only a few possi-
ble (and comparatively fxed) meanings. For example, when
Page Proof Pending Publication
it comes to the “us[e]” of a frearm “in relation” to a crime
of violence, 18 U. S. C. § 924(c)(1)(A), the presence of a gun
could be a but-for cause of (or a necessary ingredient of) the
offense—used, for example, as compensation in an exchange
for illicit drugs. Smith v. United States, 508 U. S. 223, 237–
238 (1993). Or the gun could be “ ``used as a weapon' ” by
being discharged or brandished. Id., at 243 (Scalia, J., dis-
senting). Because both those interpretations are relatively
bounded and understandable, this Court could use principles
of statutory interpretation to choose between them. The
same holds true for many of the other statutes the Court
(mistakenly) frets I would call into doubt. See ante, at
132, n. 10.
The same cannot be said for § 1028A(a)(1), though. There
are an uncountable number of ways in which an individual
could “us[e]” the “means of identifcation” of another to com-
mit fraud. That list covers everything from including a vic-
tim's name in the subject line of a fraudulent email; to
misrepresenting information on a loan form involving a
Cite as: 599 U. S. 110 (2023) 139
Gorsuch, J., concurring in judgment
co-signer; to putting on a wig and walking into a bank with
a fake ID. And no obvious neutral rule exists to separate
those “uses” that violate § 1028A(a)(1) from others that do
not. In this way, § 1028A(a)(1) is not just an “ambiguous”
statute—“one that does defne prohibited conduct with some
precision, but [that] is subject to two or more different inter-
pretations.” J. Decker, Addressing Vagueness, Ambiguity,
and Other Uncertainty in American Criminal Laws, 80 Den-
ver U. L. Rev. 241, 261 (2002) (emphasis added). Instead, it
is a vague statute—one that “does not satisfactorily defne
the proscribed conduct” at all. Id., at 260–261.
I do not write this opinion as wishcasting. Perhaps, by
applying the Court's “crux” test, lower courts will achieve a
consistency that has, to date, eluded them. Or perhaps they
will, prompted by today's decision, locate a previously unseen
path through this statutory quagmire. But I would not hold
my breath. Section 1028A(a)(1) simply does too little to
specify which individuals deserve the inglorious title of “ag-
Page Proof Pending Publication
gravated identity thief.” That is a problem Congress alone
can fx. Until it does, I fear the issues that have long
plagued lower courts will persist. And I will not be sur-
prised if someday, maybe someday soon, they fnd their way
back here.
Reporter’s Note
The attached opinion has been revised to refect the usual publication
and citation style of the United States Reports. The revised pagination
makes available the offcial United States Reports citation in advance of
publication. The syllabus has been prepared by the Reporter of Decisions
for the convenience of the reader and constitutes no part of the opinion of
Page Proof Pending Publication
the Court. A list of counsel who argued or fled briefs in this case, and
who were members of the bar of this Court at the time this case was
argued, has been inserted following the syllabus. Other revisions may
include adjustments to formatting, captions, citation form, and any errant
punctuation. The following additional edits were made:
p. 112, line 20 from bottom, “term to a have” is changed to “term to have”
p. 126, line 9 from bottom, “term to a have” is changed to “term to have”