Dubin v. United States HTML PDF
Decided: Syllabus | Majority Opinion | Concurrence
Syllabus
Dubin v. united states
27 F. 4th 1021, vacated and remanded.
NOTE:âWhere it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
DUBIN v. UNITED STATES
certiorari to the united states court of appeals for the fifth circuit
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 defrauding Medicaid, he also committed â[a]ggravated identity theftâ under §1028A(a)(1). Section 1028A(a)(1) applies when a defendant, âduring and in relation to any [predicate offense, such as healthcare fraud], knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person.â The Government argued below that §1028A(a)(1) was automatically satisfied because Dubinâs fraudulent Medicaid billing included the patientâs Medicaid reimbursement numberâa âmeans of identification.â Bound by Fifth Circuit precedent, the District Court allowed Dubinâs conviction for aggravated identity theft to stand, even though, in the District Courtâs view, the crux of the case was fraudulent billing, not identity theft. The Fifth Circuit sitting en banc affirmed in a fractured decision, with five concurring judges acknowledging that under the Governmentâs reading of §1028A(a)(1), âthe elements of [the] offense are not captured or even fairly described by the words âidentity theft.â â 27 F. 4th 1021, 1024 (opinion of Richman, C. J.).
Held: Under §1028A(a)(1), a defendant âusesâ another personâs means of identification âin relation toâ a predicate offense when the use is at the crux of what makes the conduct criminal. Pp. 4â21.
â(a) This case turns on the scope of two of §1028A(a)(1)âs elements: Dubin was convicted under §1028A(a)(1) for âus[ing]â a patientâs means of identification âin relation toâ healthcare fraud. On the Governmentâs view, a defendant âusesâ a means of identification âin relation toâ a predicate offense if the defendant employs that means of identification 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 identification happens to be part of the payment or billing method used in the commission of a long list of predicate offenses. Dubinâs more targeted reading requires that the use of a means of identification have âa genuine nexusâ to the predicate offense. When the underlying crime involves fraud or deceit, as many of §1028Aâs predicates do, this entails using a means of identification specifically in a fraudulent or deceitful manner, not as a mere ancillary feature of a payment or billing method. A careful examination of §1028A(a)(1)âs text and structure points to a narrower reading. Pp. 4â5.
â(b) The terms âusesâ and âin relation toâ have been singled out by this Court as being particularly sensitive to context. The âvarious definitions of âuseâ imply action and implementation.â Bailey v. United States, 516 U. S. 137, 145. Beyond that general concept, however, â âuseâ takes on different meanings depending on context.â Id., at 143. This requires looking ânot only to the word itself, but also to the statute and the [surrounding] scheme, to determine the meaning Congress intended.â Ibid. âIn relation toâ is similarly context sensitive. If extended to its furthest reach, ârelate toâ 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 context is especially necessary. Pp. 5â7.
â(c) Section 1028A(a)(1)âs title and terms both point toward reading the provision to capture the ordinary understanding of identity theft, where misuse of a means of identification is at the crux of the criminality. Pp. 8â15.
ââ(1) Section 1028A is a focused, standalone provision, and its titleââAggravated identity theftââsuggests that identity theft is at the core of §1028A(a)(1). A statuteâs title has long been considered a â âtoo[l] available for the resolution of a doubtâ about the meaning of a statute.â Almendarez-Torres v. United States, 523 U. S. 224, 234. Section 1028Aâs title is especially valuable here because it does not summarize a list of âcomplicated and prolificâ provisions, Trainmen v. Baltimore & Ohio R. Co., 331 U. S. 519, 528, and also âreinforces what the textâs nouns and verbs independently suggest,â Yates v. United States, 574 U. S. 528, 552 (Alito, J., concurring in judgment). The Court has previously observed the contrast between §1028Aâs targeted title and the broad title of neighboring provision §1028: â âFraud and related activity in connection with identification documents, authentication features, and information.â â Flores-Figueroa v. United States, 556 U. S. 646, 655. That âCongress separated the [identity] fraud crime from the [identity] theft crime inâ §1028A suggests that §1028A is focused on  identity theft specifically, rather than all fraud involving means of identification. Ibid.
âThe Government urges the Court to ignore §1028Aâs title, because the Governmentâs reading of the provision bears little resemblance to ordinary understandings of âidentity theft.â This broad reading would, in practice, place garden-variety overbilling at the core of §1028A. Instead, âidentity theftâ has a focused meaning: â[T]he fraudulent appropriation and use of another personâs identifying data or documents,â Websterâs Unabridged Dictionary xi, or â[t]he unlawful taking and use of another personâs identifying information for fraudulent purposes,â Blackâs Law Dictionary 894. This understanding of identity theft supports a reading of âin relation toâ where use of the means of identification is at the crux of the underlying crime. And under these definitions, identity theft occurs when a defendant âusesâ the means of identification itself to defraud others. Further, the inclusion of âaggravatedâ in §1028Aâs title suggests that Congress had in mind a particularly serious form of identity theft, not just all manner of everyday overbilling offenses. Pp. 8â12.
ââ(2) Section 1028A(a)(1)âs language points in the same direction as its title. In particular, Congress used a trio of verbs that reflect an ordinary understanding of identity theft. Section 1028A(a)(1) applies when a defendant âknowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person,â âduring and in relation toâ any predicate offense. (Emphasis added). The two verbs neighboring âusesâââtransfersâ and âpossessesââare most naturally read in the context of §1028A(a)(1) to connote not only theft, but ordinary understandings of identity theft in particular, i.e., they point to (1) theft of a (2) means of identification belonging to (3) another person. Because âtransferâ and âpossessâ channel ordinary identity theft, the interpretative cannon noscitur a sociis (â âa word is known by the company it keeps,â â McDonnell v. United States, 579 U. S. 550, 568â569) indicates that âusesâ should be read in a similar manner. In addition, the Court âassume[s] that Congress used [three] terms because it intended each term to a have a particular, nonsuperfluous meaning.â Bailey, 516 U. S., at 146. On a more targeted reading, §1028A(a)(1)âs three verbs capture the complexity of identity theft, which intermingles aspects of theft and fraud, misappropriation and deceitful use. While âtransferâ and âpossessâ conjure up two steps of theft, âusesâ 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 âusesâ without âvirtually any function.â Ibid. Pp. 12â15.
â(d) The list of §1028A(a)(1)âs predicate offenses creates additional problems for the Governmentâs broad reading. Section 1028A(a)(1)âs enhancement adds a severe 2-year mandatory prison sentence onto  underlying offenses that do not impose any mandatory prison sentence at all. The Governmentâs reading, however, does not meaningfully distinguish between the aggravated identity theft crime that Congress singled 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 identification for routine billing and payment. A far more sensible conclusion from the statutory structure is that §1028A(a)(1)âs enhancement targets situations where the means of identification itself is at the crux of the underlying criminality, not just an ancillary billing feature. Pp. 15â17.
â(e) In contrast to the staggering breadth of the Governmentâs reading of §1028A, this Court has â âtraditionally exercised restraint in assessing the reach of a federal criminal statute,â â 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 Governmentâs readingâunder which everyday overbilling cases would account for the majority of violationsââunderscores the implausibility of the Governmentâs interpretation.â Id., at ___. While the Government represents that prosecutors will act responsibly in charging defendants under its sweeping reading, this Court âcannot construe a criminal statute on the assumption that the Government will âuse it responsibly.â â McDonnell, 579 U. S., at 576. Pp. 17â19.
27 F. 4th 1021, vacated and remanded.
âSotomayor, J., delivered the opinion of the Court, in which Roberts, C. J., and Thomas, Alito, Kagan, Kavanaugh, Barrett, and Jackson, JJ., joined. Gorsuch, J., filed an opinion concurring in the judgment.
TOP
Opinion
NOTICE: This opinion is subject to formal revision before publication in the United States Reports. Readers 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.
SUPREME COURT OF THE UNITED STATES
_________________
No. 22â10
_________________
David Fox Dubin, PETITIONER v. UNITED STATES
on writ of certiorari to the united states court of appeals for the fifth circuit
âJustice Sotomayor delivered the opinion of the Court.
âThere is no dispute that petitioner David Fox Dubin overbilled Medicaid for psychological testing. The question is whether, in defrauding Medicaid, he also committed â[a]ggravated identity theft,â 18 U. S. C. §1028A(a)(1), triggering a mandatory 2-year prison sentence. The Fifth Circuit found that he did, based on a reading of the statute that covers defendants who fraudulently inflate the price of a service or good they actually provided. On that sweeping reading, as long as a billing or payment method employs another personâs 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 flank steak but charges for filet mignon using an electronic payment method.
âThe text and context of the statute do not support such a boundless interpretation. Instead, §1028A(a)(1) is violated when the defendantâs misuse of another personâs means of identification 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 petitionerâs overbilling was inflating the value of services actually provided, while  the patientâs means of identification was an ancillary part of the Medicaid billing process.
I
âDavid Dubin helped his father manage a psychological services company. This company submitted a claim for reimbursement to Medicaid for psychological testing by a licensed psychologist. In fact, however, the claim overstated the qualifications of the employee who actually performed the testing and who was only a licensed psychological associate. This falsehood inflated the amount of reimbursement. Petitioner also changed the date on which the examination occurred.1 Even with the inflation, the total reimbursement was only $338. App. 49. Petitioner was accordingly charged with healthcare fraud, a federal offense under 18 U. S. C. §1347. According to the Government, however, petitionerâs conduct also constituted â[a]ggravated identity theftâ under §1028A(a)(1).
âSection 1028A(a)(1) applies when a defendant, âduring and in relation to any [predicate offense], knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person.â The predicate offenses include, 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 âin addition to the punishmentâ for the predicate offense.
âAccording to the Government, this is a clear aggravated identity theft case. The Government argued at trial that §1028A(a)(1) was automatically satisfied because petitionerâs fraudulent billing included the patientâs Medicaid reimbursement number (a âmeans of identificationâ). The District Court was less sure. â[T]his doesnât seem to be an aggravated identity theft caseâ the court explained, as âthe  whole crux of this case is how [petitioner was] billing.â App. 37â38. This overbilling was âcriminal,â but it âwasnât aggravated identity theft.â Id., at 38. Nevertheless, the District Court denied petitionerâs post-trial challenge to his aggravated identity theft conviction, explaining that contrary Fifth Circuit precedent tied its hands. The court said that it âhope[d]â it would âget reversed.â Id., at 39.
âOn appeal, a Fifth Circuit panel affirmed. On rehearing en banc, a fractured court affirmed again. Five judges who agreed with the Government nonetheless acknowledged that under the Governmentâs reading of §1028A(a)(1), âthe elements of [the] offense are not captured or even fairly described by the words âidentity theft.â â 27 F. 4th 1021, 1024 (2022) (Richman, C. J., concurring). Eight dissenting judges agreed on this point.
âThis type of prosecution is not uncommon. The Government has, by its own admission, wielded §1028A(a)(1) well beyond ordinary understandings of identity theft. One prosecution targeted a defendant who âmade a counterfeit handgun permitâ for another person, using that personâs real name and at that personâs request. United States v. Spears, 729 F. 3d 753, 754 (CA7 2013) (en banc). Another involved unlicensed doctors who violated the law by âissu[ing] prescriptions that their [actual] patients would then fill at . . . pharmacies.â United States v. Berroa, 856 F. 3d 141, 148, 155â156 (CA1 2017). There was also a prosecution involving an ambulance service inflating its reimbursement rates by âmischaracteriz[ing] the nature of the transports, saying that the patients had required stretchers when they had not.â United States v. Michael, 882 F. 3d 624, 628 (CA6 2018) (citing United States v. Medlock, 792 F. 3d 700, 705 (CA6 2015)). Yet another prosecution involved a defendant who âprovided massage services to patients to treat their pain,â but improperly billed this âas a Medicare-eligible physical therapy service.â United States v. Hong, 938 F. 3d 1040, 1051 (CA9 2019).
 âMany 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 conflict 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
âThis case turns on two of §1028A(a)(1)âs elements. Of the various possible ways to violate §1028A(a)(1), petitioner was convicted for âus[ing]â a patientâs means of identification âin relation toâ healthcare fraud. The parties offer competing readings of these two elements.
âThe Government reads the terms broadly and in isolation. On the Governmentâs view, â[a] defendant uses a means of identification âin relation toâ a predicate offense if the use of that means of identification âfacilitates or furthersâ the predicate offense in some way.â Brief for United States 10 (quoting Smith v. United States, 508 U. S. 223, 232 (1993)). As to âuses,â the Government seems just to mean âemploy[s]â in any sense. Brief for United States 5, 7, 10â11. Section 1028A(a)(1) would thus apply automatically any time a name or other means of identification 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.
âPetitioner, in response, offers a more targeted reading. For petitioner, using a means of identification in relation to  a predicate offense requires âa genuine nexus to the predicate offense.â Brief for Petitioner 15. On this reading, the means of identification is at the crux of what makes the predicate offense criminal, rather than merely an ancillary feature of a payment method. When the underlying crime involves fraud or deceit, as many of §1028Aâs predicates do, this entails using a means of identification specifically in a fraudulent or deceitful manner.
âTo illustrate, petitioner borrows a heuristic from the Sixth Circuit. See Michael, 882 F. 3d, at 628. The relevant language in §1028A(a)(1) âcovers misrepresenting who received a certain service,â but not âfraudulent claims regarding how or when a service was performed.â Brief for Petitioner 15. In other words, fraud going to identity, not misrepresentation about services actually provided. Take an ambulance service that actually transported patients but inflated the number of miles driven. The crux of this fraud was âhowâ services were rendered; the patientsâ names were part of the billing process, but ancillary to what made the conduct fraudulent. See Michael, 882 F. 3d, at 628â629. In contrast, take the pharmacist who swipes information from the pharmacyâs files and uses it to open a bank account in a patientâs name. That âmisuse of th[e] means of identificationâ would be âintegral toâ what made the conduct fraudulent, because misrepresentation about who was involved was at the crux of the fraud. Id., at 629.
âIn deciding between the partiesâ readings, one limited and one near limitless, precedent and prudence require a careful examination of §1028A(a)(1)âs text and structure. While âusesâ and âin relation toâ are, in isolation, indeterminate, the statutory context, taken as a whole, points to a narrower reading.
B
âIn interpreting the scope of âusesâ and âin relation to,â the Court begins with those terms themselves. Both terms  have been singled out by this Court as particularly sensitive to context, and they do not, standing alone, conclusively resolve this case.
âStart with âuses.â As the Court has observed more than once, âthe word âuseâ poses some interpretational difficulties because of the different meanings attributable to it.â Bailey v. United States, 516 U. S. 137, 143 (1995); see also Leocal v. Ashcroft, 543 U. S. 1, 9 (2004). The â âordinary or natural meaningâ â of â âuseâ â is âvariously defined as â[t]o convert to oneâs service,â âto employ,â âto avail oneself of,â and âto carry out a purpose or action by means of.â â Bailey, 516 U. S., at 145. âThese various definitions of âuseâ imply action and implementation.â Ibid. Beyond that general concept, however, â âuseâ takes on different meanings depending on context,â and because it âdraws 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.â Id., at 143; see also Leocal, 543 U. S., at 9 (âParticularly when interpreting a statute that features as elastic a word as âuse,â we construe language in its context and in light of the terms surrounding itâ).
âFor example, the federal arson statute only applies to buildings â âused inâ commerce or commerce-affecting activity.â Jones v. United States, 529 U. S. 848, 850â851 (2000). In that statutory context, the Court distinguished between uses of a building as âthe locus of any commercial undertaking,â and noncovered âpassive,â âpassing,â or ancillary uses of a building âas collateral to obtain and secure a mortgageâ or to obtain an insurance policy. Id., at 855â856. It is statutory context, therefore, that determines what kind of active employment or conversion to oneâs service triggers §1028A(a)(1)âs harsh penalty.
ââIn relation toâ is similarly context sensitive. If â ârelate toâ were taken to extend to the furthest stretch of its indeterminacy, then for all practical purposesâ there would be  no limits, as â â[r]eally, universally, relations stop nowhere.â â 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., Worldâs Classics 1980)). This language thus cannot be âconsidered in isolation,â Maracich v. Spears, 570 U. S. 48, 59 (2013), and the Court must âgo beyond the unhelpful text and the frustrating difficulty of defining [this] key termâ and look to statutory 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 (â â[I]n relation toâ â requires âsome purpose or effectâ between two things). Yet the kind of relationship required, its nature and strength, will be informed by context.
âThe presence of two such context-dependent terms renders §1028A(a)(1) doubly attuned to its surroundings. The partiesâ competing readings both fall within the range of meanings of âusesâ and âin relation to,â taken alone. Resort to context is thus especially necessary here.4
 C
âHaving found the key terms âuseâ and âin relation toâ indeterminate, the next step is to look to their surrounding words. After all, âa statuteâs meaning does not always turn solely on the broadest imaginable definitions of its component words.â Epic Systems Corp. v. Lewis, 584 U. S. ___, ___ (2018) (slip op., at 23) (internal quotation marks omitted). Instead, â[l]inguistic and statutory context also matter.â Ibid. Even in cases where âthe literal language of the statute is neutralâ in isolation, reading âthe whole phraseâ can point to a more targeted reading. Marinello v. United States, 584 U. S. ___, ___â___ (2018) (slip op., at 4â5).
âSuch is the case here. Section 1028A(a)(1)âs title and terms both point to a narrower reading, one centered around the ordinary understanding of identity theft. This cuts against the Governmentâs broad reading, which the Government admits bears little relationship to the common understanding of identity theft. In contrast, a more targeted reading accurately captures the ordinary understanding of identity theft, where misuse of a means of identification is at the crux of the criminality.
1
âStart at the top, with the words Congress chose for §1028Aâs title: âAggravated identity theft.â 118 Stat. 831. This Court has long considered that â âthe title of a statute and the heading of a sectionâ are âtools available for the resolution of a doubtâ about the meaning of a statute.â Almendarez-Torres v. United States, 523 U. S. 224, 234 (1998) (quoting Trainmen v. Baltimore & Ohio R. Co., 331 U. S. 519, 528â529 (1947)). A title will not, of course, âoverride the plain wordsâ of a statute. Fulton v. Philadelphia, 593 U. S. ___, ___ (2021) (slip op., at 9). Yet here, the key terms are so âelasticâ that they must be construed âin light of the terms surrounding [them],â 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, âthe title is a useful clue.â Tr. of Oral Arg. 80.
âTwo additional points bolster this approach. First, the title here is not serving the unenviable role of pithily summarizing a list of âcomplicated and prolificâ provisions. Trainmen, 331 U. S., at 528. Section 1028A is a focused, standalone provision. Second, a title is âespecially valuable [where] it reinforces what the textâs nouns and verbs independently suggest.â Yates v. United States, 574 U. S. 528, 552 (2015) (Alito, J., concurring in judgment). As explained below, §1028A(a)(1)âs text independently suggests a focus on identity theft. See infra, at 12â15.
âIndeed, this Court has already once used §1028Aâs 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 â âFraud and related activity in connection with identification documents, authentication features, and information.â â Id., at 655. Section 1028A, in contrast, is far more targeted, âus[ing] the words âidentity theft.â â Ibid. That âCongress separated the [identity] fraud crime from the [identity] theft crime inâ §1028A suggests that §1028A is focused on identity theft specifically, rather than all fraud involving means of identification. Ibid.5
âGiven that, it is abundantly clear why the Government urges the Court to ignore the title. The Governmentâs broad reading, covering any time another personâs means of identification is employed in a way that facilitates a crime,  bears little resemblance to any ordinary meaning of âidentity theft.â Consider again an unlicensed doctor who fills out a prescription actually requested by a patient; no one would call that identity theft. Even judges below who agreed with the Governmentâs 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 Governmentâs reading would, in practice, place garden-variety overbilling at the core of §1028A.
âInstead, âidentity theftâ has a focused meaning. One dictionary defines identity theft as âthe fraudulent appropriation and use of another personâs identifying data or documents, as a credit card.â Websterâs Unabridged Dictionary xi (2d ed. 2001) (Websterâs). Another similarly offers â[t]he unlawful taking and use of another personâs identifying information for fraudulent purposes; specif[ically] a crime in which someone steals personal information about and belonging to another, such as a bank-account number or driverâs-license number, and uses the information to deceive others.â Blackâs Law Dictionary 894 (11th ed. 2019) (Blackâs) (defining âidentity theftâ).6
âThis supports a reading of âin relation toâ where use of the means of identification is at the crux of the underlying criminality. These definitions refer to offenses built around what the defendant does with the means of identification in particular. In other words, the means of identification specifically is a key mover in the criminality. This central role played by the means of identification, which serves to designate a specific personâs identity, explains why we say that the âidentityâ itself has been stolen. See, e.g., Spears, 729 F. 3d, at 756 (âidentity theftâ occurs when someoneâs âiden tity has been stolen or misappropriatedâ). This helps explain why the examples resulting from the Governmentâs 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 specifically 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 another; we might say the filet mignonâs identity was stolen, perhaps, but not the dinerâs.
âThis understanding of identity theft also supports a more targeted definition of âuses.â The word âuseâ appears in these definitions with a specific meaning: Identity theft encompasses when a defendant âuses the information to deceive others,â Blackâs 894 (emphasis added), and âthe fraudulent . . . useâ of a means of identification, Websterâs xi (emphasis added). In other words, identity theft is committed when a defendant uses the means of identification itself to defraud or deceive. This tracks the Sixth Circuitâs heuristic. When a means of identification is used deceptively, this deception goes to âwhoâ is involved, rather than just âhowâ or âwhenâ services were provided. Use of the means of identification would therefore be at âthe locus of [the criminal] undertaking,â rather than merely âpassive,â âpassing,â or ancillary employment in a crime. Jones, 529 U. S., at 855â856.
âOn top of that, §1028Aâs title is not just âidentity theft,â but âAggravated identity theft.â Typically, â[a]n âaggravatedâ offense is one âmade worse or more serious by circumstances such as violence, the presence of a deadly weapon, or the intent to commit another crime.â â Carachuri-Rosendo v. Holder, 560 U. S. 563, 574 (2010) (quoting Blackâs Law Dictionary 75 (9th ed. 2009)). This suggests that Congress had in mind a particularly serious form of identity theft. Yet the Governmentâs reading âwould apply an âaggravatedâ . . . labelâ to all manner of everyday overbilling offenses. Carachuri-Rosendo, 560 U. S., at 574. âOf  course . . . Congress, like âHumpty Dumpty,â has the power to give words unorthodox meanings.â Id., at 575. Yet where âthe Government argues for a result that the English language tells us not to expect, . . . we must be very wary of the Governmentâs position.â Ibid. (internal quotation marks omitted).
âThe title suggests identity theft is at the core of §1028A(a)(1). On the Governmentâs reading, however, everyday overbilling would become the most common trigger for §1028A(a)(1)âs severe penalty. This would turn the core of âworse or more seriousâ identity theft into something the ordinary user of the English language would not consider identity theft at all.
2
âThe title is, by definition, just the beginning. A title does not supplant the actual text of the provision, as the Government observes. The problem for the Government is that §1028A(a)(1)âs language points in the same direction as its title. In particular, Congress used a trio of verbs that reflect an ordinary understanding of identity theft.
âWhile âusesâ is indeterminate in isolation, here it has company. Section 1028A(a)(1) applies when a defendant âknowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person,â âduring and in relation toâ any predicate offense. (Emphasis added.) âUnder the familiar interpretive canon noscitur a sociis, âa word is known by the company it keeps.â â McDonnell v. United States, 579 U. S. 550, 568â569 (2016) (quoting Jarecki v. G. D. Searle & Co., 367 U. S. 303, 307 (1961)). â[T]his canon is often wisely applied where a word is capable of many meanings in order to avoid the giving of unintended breadth to the Acts of Congress.â McDonnell, 579 U. S., at 569 (internal quotation marks omitted).
âThe two neighboring verbs here, âtransfersâ and âpossesses,â 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 identification belonging to âanother person.â Generally, to unlawfully âpossessâ something belonging to another person suggests it has been stolen. And to unlawfully âtransferâ something belonging to another person similarly connotes misappropriating it and passing it along. In Flores-Figueroa, this Court drew a similarly intuitive link between a defendant taking a means of identification he knows belongs to another person and â âtheft.â â 556 U. S., at 655. The Government, at argument, agreed: these two verbs ârefer to circumstances in which the information is stolen.â Tr. of Oral Arg. 90.7
ââTransferâ and âpossessâ not only connote theft, but identity theft in particular. The verbs point to (1) theft of a (2) means of identification belonging to (3) another person. That tracks ordinary understandings of identity theft: âa crime in which someone [1] steals [2] personal information about and [3] belonging to another.â Blackâs 894. Similarly, âthe [1] fraudulent appropriation and use of [3] another personâs [2] identifying data or documents.â Websterâs xi. If this parallel were not enough, §1028A(a)(1)âs title indicates that the type of theft its verbs connote is identity theft specifically.
âBecause âtransferâ and âpossessâ channel ordinary identity theft, noscitur a sociis indicates that âusesâ should be  read in a similar manner to its companions. See McDonnell, 579 U. S., at 568â569. âUsesâ is quite amenable to such a reading, and not just because of its indeterminacy. As explained above, âusingâ another personâs means of identification to deceive or defraud is a common feature of identity theft. See Websterâs xi (âthe fraudulent . . . useâ of a means of identification (emphasis added)); Blackâs 894 (when a defendant âuses the information to deceive othersâ (emphasis added)).
âCongress thus employed a trio of verbs that capture various aspects of âclassic identity theft.â Flores-Figueroa, 556 U. S., at 656. There is âthe defendant [who] has gone through someone elseâs trash to find discarded credit card and bank statements,â 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: âa defendant [who] has used another personâs identification information to get access to that personâs bank account.â Ibid.
âAnother canon of construction offers a further point in favor of this narrow interpretation. The Court âassume[s] that Congress used [three] terms because it intended each term to a have a particular, nonsuperfluous meaning.â Bailey, 516 U. S., at 146. Reading §1028A(a)(1)âs operative verbs as tracking aspects of classic identity theft, each verb has an independent role to play. As the definitions reveal, identity theft covers both when âsomeone steals personal information about and belonging to another . . . and uses the information to deceive others,â Blackâs 894 (emphasis added), and âfraudulent appropriation and use,â Websterâs xi (emphasis added). Identity theft thus intermingles aspects of theft and fraud, misappropriation and deceitful use. Section 1028A(a)(1)âs three verbs capture this complexity. While âtransferâ and âpossessâ conjure up two steps of theft, âusesâ supplies the deceitful use aspect.
 âIn contrast, if §1028A(a)(1)âs verbs do not track identity theft and if the means of identification need only facilitate the predicate offense, the other two verbs threaten to leave âusesâ without âvirtually any function.â Bailey, 516 U. S., at 146. Return to a definition of âin relation toâ that just means â âfacilitates or furthersâ the predicate offense in some way.â Brief for United States 10. In virtually all cases where a defendant employs a means of identification to facilitate a crime, the defendant will also possess or transfer the means of identification in a way that facilitates the crime. For example, petitionerâs possession of the patientâs means of identification facilitated the fraud, as did petitionerâs transfer of the patientâs means of identification to Medicaid. It is hard to imagine when âusesâ would not similarly be covered by, at least, one of the two other verbs. This risk of superfluity suggests giving §1028A(a)(1) a more precise reading.
âIn sum, §1028A(a)(1)âs title and text are mutually reinforcing. Both point toward requiring the means of identification to be at the crux of the criminality.
D
âSection 1028Aâs list of predicate offenses points to yet another stumbling block for the Governmentâs broad reading. Section 1028A(a)(1) is an enhancement, and a severe one at that. It adds a 2-year mandatory prison sentence onto underlying offenses that do not impose a mandatory prison sentence of any kind. See, e.g., 18 U. S. C. §1035 (â[f]alse statements relating to health care matters,â setting no minimum sentence). This prevents sentencing judges from considering the severity of the offense, even if the amount of money involved was quite small or there are other mitigating factors. Interpretation of §1028A(a)(1) should thus reflect the âdistinction betweenâ the aggravated identity theft crimes that âCongress sought to distinguish for heightened punishment and other crimes.â Leocal, 543 U. S., at 11.
 âFar from distinguishing, the Governmentâs reading collapses the enhancement into the enhanced. Here, the Government claims that because petitionerâs overbilling was facilitated by the patientâs Medicaid reimbursement number, §1028A(a)(1) automatically applies. Patient names or other identifiers 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, Medlock, 792 F. 3d, at 706. Patient names will be on prescriptions, Berroa, 856 F. 3d, at 148, 155â156, and patients committing fraud on their own behalf will often have to include the names of others on their forms, such as doctors or employers. Under the Governmentâs own reading, such cases are âautomatically identity theft,â Tr. of Oral Arg. 82, independent of whether the name itself had anything to do with the fraudulent aspect of the offense.
âNor are these implications confined to healthcare. Section 1028A(a)(1)âs predicates include a vast array of offenses, including wire fraud and mail fraud. §1028A(c)(5). The Governmentâs boundless reading of âusesâ and âin relation toâ would cover facilitating mail fraud by using another personâs name to address a letter to them.8 Even beyond  that, names or other means of identification 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 Governmentâs reading creates an automatic 2-year sentence for generic overbilling that happens to use ubiquitous payment methods.
âA far more sensible conclusion from the statutory structure is that §1028A(a)(1)âs enhancement is not indiscriminate, but targets situations where the means of identification itself plays a key roleâone that warrants a 2-year mandatory minimum. This points once more to a targeted reading, where the means of identification is at the crux of the underlying criminality, not an ancillary feature of billing.
E
âIf more were needed, a final clue comes from the staggering breadth of the Governmentâs reading. This Court has â âtraditionally exercised restraint in assessing the reach of a federal criminal statute.â â Marinello, 584 U. S., at ___ (slip op., at 9) (quoting United States v. Aguilar, 515 U. S. 593, 600 (1995)); see also Arthur Andersen LLP v. United States, 544 U. S. 696, 703â704 (2005); McBoyle v. United States, 283 U. S. 25, 27 (1931). This restraint arises âboth 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.â Marinello, 584 U. S., at ___ (slip op., at 4) (internal quotation marks omitted). After all, â[c]rimes are supposed to be defined by the legislature, not by clever prosecutors riffing on equivocal language.â Spears, 729 F. 3d, at 758.
 âTime and again, this Court has prudently avoided reading incongruous breadth into opaque language in criminal statutes. In Van Buren v. United States, 593 U. S. ___ (2021), the âfar-reaching consequencesâ of the Governmentâs reading âunderscore[d] the implausibility of the Governmentâs interpretation.â Id., at ___ (slip op., at 17). In Marinello, the Court rejected the Governmentâs reading of a statute about obstructing administration of the Tax Code that would have swept in the âperson who pays a babysitter $41 per week in cash without withholding taxes,â as well as someone who âleaves a large cash tip in a restaurant, fails to keep donation receipts from every charity to which he or she contributes, or fails to provide every record to an accountant.â 584 U. S., at ___ (slip op., at 7). Nor was all such conduct innocent, as the statute required an individual to act â âcorruptly.â â Id., at ___ (slip op., at 8). Even still, â[h]ad Congress intendedâ to sweep so far, âit would have spoken with more clarity than it did.â Id., at ___ (slip op., at 7). In Yates, the Court held that the Governmentâs âunrestrainedâ reading would have turned a provision focused on ârecordsâ and âdocumentsâ into âan all-encompassing ban on the spoliation of evidenceâ that would âsweep within its reach physical objects of every kind,â including a fish. 574 U. S., at 536, 540 (plurality opinion). Had Congress set out to do so, âone would have expected a clearer indication of that intent.â Ibid.
âSo too here. The Governmentâs reading would sweep in the hour-inflating 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 common billing methods, they would all be subject to a mandatory two years in federal prison. To say that such a result  is implausible would be an understatement.9 Because everyday overbilling cases would account for the majority of violations in practice, the Governmentâs reading places at the core of the statute its most improbable applications.
âFinally, the Government makes a familiar plea: There is no reason to mistrust its sweeping reading, because prosecutors will act responsibly. To this, the Court gives a just-as-familiar response: We âcannot construe a criminal statute on the assumption that the Government will âuse it responsibly.â â McDonnell, 579 U. S., at 576 (quoting United States v. Stevens, 559 U. S. 460, 480 (2010)). â[T]o rely upon prosecutorial discretion to narrow the otherwise wide-ranging scope of a criminal statuteâs highly abstract general statutory language places great power in the hands of the prosecutor.â Marinello, 584 U. S., at ___ (slip op., at 9). This concern is particularly salient here. If §1028A(a)(1) applies virtually automatically to a swath of predicate offenses, the prosecutor can hold the threat of charging an additional 2-year mandatory prison sentence over the head of any defendant who is considering going to trial.
III
âAll 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 Governmentâs attempt to push the statutory envelope. A defendant âusesâ another personâs means of identification âin relation toâ 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 â âfacilitationâ â of the offense or being a but-for cause of its âsuccess.â Post, at 3, 5â6 (Gorsuch, J., concurring in judgment). Instead, with fraud or deceit crimes like the one in this case, the means of identification specifically must be used in a manner that is fraudulent or deceptive. Such fraud or deceit going to identity can often be succinctly summarized as going to âwhoâ is involved.10
âHere, petitionerâs use of the patientâs name was not at the crux of what made the underlying overbilling fraudulent. The crux of the healthcare fraud was a misrepresentation about the qualifications of petitionerâs employee. The patientâs name was an ancillary feature of the billing method employed. The Sixth Circuitâs 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 petitionerâs fraud was in misrepresenting how and when services were provided to a patient, not who received the services.
 *ââ*ââ*
âBecause petitioner did not use the patientâs means of identification in relation to a predicate offense within the meaning 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.
Notes
1 Â 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.
2  See Berroa, 856 F. 3d, at 148, 155â157; 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.
4  The Government tries to head off any contextual analysis at the pass, urging that âusesâ and âduring and in relation toâ in §1028A(a)(1) must be read identically to Smith and other of this Courtâs cases interpreting 18 U. S. C. §924(c)(1)(A). That provision applies to âany person who, during and in relation to any crime of violence or drug trafficking crime . . . uses or carries a firearm.â One need look no further than this Courtâs §924(c) case law to see why this argument fails. The teaching of those cases is that because âuseâ âdraws meaning from its context, . . . we will look not only to the word itself, but also to the statute and the [broader] scheme.â Bailey v. United States, 516 U. S. 137, 143 (1995). Section 1028A(a)(1) differs greatly from §924(c), from the thing that is âused,â 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 anything, the ubiquity of names and their vast range of âusesâ makes the verb especially indeterminate in this context. For that same reason, the Courtâs decision today does not alter its §924(c) case law.
5  Flores-Figueroa held that under §1028A(a)(1) a defendant must know âthat the âmeans of identificationâ he or she unlawfully transferred, possessed, or used, in fact, belonged to âanother person.â â 556 U. S., at 647. The Court not only looked to §1028A(a)(1)âs theft-focused title and role in the statutory structure, but also drew on an understanding that the provision covers âclassic identity theft.â Id., at 655â656.
6 Â âSteal[ing]â can, of course, include situations where something was initially lawfully acquired. See Blackâs 1710 (defining âstealâ).
7  Those who find legislative history helpful will find yet further support. â[P]ossessesâ refers to âsomeone who has wrongly acquired anotherâs means of identification, but has not yet put it to use or transferred it elsewhere.â H. R. Rep. No. 108â528, p. 10 (2004). â[T]ransfersâ is when the defendant âtransferred it to another person or location where it can be put to use.â Ibid. And âusesâ is when âa defendant . . . obtained someone elseâs means of identification and actually put that means of identification to use.â Ibid.
8  To avoid this, the Government has advanced a medley of shifting and inconsistent readings of âwithout lawful authority,â 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 identification to commit a crime. See Brief for United States 32 (âeveryone is presumed to have permission to use other peopleâs namesâ in certain ways to facilitate crimes, such as addressing a letter); id., at 31â32 (a defendant can have âlawful authorityâ to use a co-conspiratorâs 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 âcanât give someone [else] permissionâ to use their name to facilitate a crime); Tr. of Oral Arg. 91â92 (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 âwithout lawful authority.â Suffice 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 âusesâ and âin relation to.â
9  Even the Government had trouble stomaching some of these results, offering inconsistent accounts of certain examples. The Government claimed, for example, that if âan applicant for a bank loan . . . slightly inflates his salary while correctly identifying the co-signer,â âthe inclusion of the co-signerâs name is not âin relation toâ the fraud.â Brief for United States 31â32 (some internal quotation marks omitted). This cannot be squared with the Governmentâs own âfacilitatesâ standard.
10  Adrift in a blizzard of its own hypotheticals, the concurrence believes that it is too difficult to discern when a means of identification is at the crux of the underlying criminality. Post, at 4. The concurrenceâs bewilderment is not, fortunately, the standard for striking down an Act of Congress as unconstitutionally vague. There will be close cases, certainly, but that is commonplace in criminal law. Equally commonplace are requirements that something play a specific role in an offense, whether that role is articulated as a ânexus,â Marinello v. United States, 584 U. S. ___, ___ (2018) (slip op., at 10), a âlocus,â Jones v. United States, 529 U. S. 848, 855â856 (2000), or âproximate cause,â 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 legislaturesâ 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).
TOP
Concurrence
SUPREME COURT OF THE UNITED STATES
_________________
No. 22â10
_________________
David Fox Dubin, PETITIONER v. UNITED STATES
on writ of certiorari to the united states court of appeals for the fifth circuit
âJustice Gorsuch, concurring in the judgment.
âWhoever among you is not an âaggravated identity thief,â let him cast the first stone. The United States came to this Court with a view of 18 U. S. C. §1028A(a)(1) that would affix 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 mandatory 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 better than a Rorschach test. Depending on how you squint your eyes, you can stretch (or shrink) its meaning to convict (or exonerate) just about anyone. Doubtless, creative prosecutors 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 â[i]n our constitutional order, a vague law is no law at all.â United States v. Davis, 588 U. S. ___, ___ (2019) (slip op., at 1).
âThe â[a]ggravated identity theftâ statute stipulates that â[w]hoever, during and in relation to any felony violationâ  listed in a later subsection, âknowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person shall, in addition to the punishment provided for such felony, be sentenced to a term of imprisonment of 2 years.â §1028A(a)(1). Today, the Court sets out to determine what conduct that law reaches. It is, as the Court acknowledges, no easy task. Both the term âus[e]â and the phrase âin relation toâ can support a multitude of possible meanings. Ante, at 5â7. They of course â âimply action and implementation.â â Ante, at 6 (quoting Bailey v. United States, 516 U. S. 137, 145 (1995)). Beyond that âgeneral concept,â however, we must fend for ourselves based only on limited contextual clues. Ante, at 5â7.
âThe United States offers up a rapacious interpretation that would require only âthe use of th[e] means of identification [to] âfacilitat[e] or furthe[r]â the predicate offense in some way.â Brief for United States 10 (emphasis added). Admittedly, this reading âfall[s] within the rangeâ of plausible meanings the statute could support. Ante, at 7. But so too do other readingsâones that require a more demanding ânexusâ between the âmeans of identificationâ and the underlying misconduct. Ante, at 7â8. For many of the reasons the Court gives (and more besides), I agree that we must adhere to those more restrained offerings. The United Statesâ maximalist approach has simplicity on its side, yes; an everybody-is-guilty standard is no challenge to administer. But the Constitution prohibits the Judiciary from resolving reasonable doubts about a criminal statuteâs meaning by rounding up to the most punitive interpretation its text and context can tolerate. See Wooden v. United States, 595 U. S. ___, ___â___ (2022) (Gorsuch, J., concurring in judgment) (slip op., at 6â9). That insight alone means Mr. Dubinâs §1028A(a)(1) conviction cannot stand.
âUnfortunately, 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 âuse of the means of identification is at the crux of the underlying criminality.â Ante, at 10 (emphasis added). âIn other words, the means of identification specificallyâ must be in some way âa key mover in the criminality.â Ibid. (emphasis added). Put still another way, the âmeans of identificationâ must play the (or maybe a) âcentral roleâ in the commission of the offense. Ibid. (emphasis added).
âSetting aside some definite-article inconsistency, those formulations all sound sensible enough. On closer review, however, they present intractable interpretive challenges of their own. When, exactly, is a âmeans of identificationâ âat the crux,â âa key mover,â or a âcentral roleâ player in an offense? No doubt, the answer âturns on causation, or at least causation often helps to answer the question.â United States v. Michael, 882 F. 3d 624, 628 (CA6 2018). The Court agrees but stresses that âa causal relationshipâ of any kind will not suffice. Ante, at 20. 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 virtually every fraud, a âmeans of identificationâ plays some critical role in the fraudâs successâgood 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 parties. Just how much âcausationâ must a prosecutor establish to sustain a §1028A(a)(1) conviction? For that matter, how does one even determine the extent to which a âmeans of identificationâ âcausedâ an offense, as compared to the many other necessary inputs?
âThe Court supplies no firm answer. Instead, it leans on various illustrations that only highlight the difficulties inherent in this exercise. Take, for instance, the Courtâs assurance that a âwaiter who serves flank steak but charges  for filet mignon using an electronic payment methodâ has not committed aggravated identity theft. Ante, at 1, 11. Why not, exactly? In one sense, the âmeans of identificationâ (the credit card) lies âat the cruxâ of the fraud. The restaurant uses it to charge the customer for a product it never supplied. Maybe that feels less distasteful than a scenario in which an overseas hacker steals an individualâs credit card information and deploys it to order luxury goods on Amazon. But the Constitutionâs promise of due process means that criminal statutes must provide rules âknowable in advance,â not intuitions discoverable only after a prosecutor has issued an indictment and a judge offers an opinion. Percoco v. United States, 598 U. S. ___, ___ (2023) (Gorsuch, J., concurring in judgment) (slip op., at 6).
âNot yet convinced? Consider some tweaks to the Courtâs hypothetical. Suppose that, instead of misrepresenting the cut of its steaks, a restaurant charged a customer for an appetizer he ordered that never arrived. What about an appetizer he never ordered? An additional entrĂ©e? Three? Three plus a $5,000 bottle of MoĂ«t? How about a Boeing 737? Now suppose the restaurant ran the customerâs 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 customerâs credit card information on the dark web, and another restaurant ran the card for filet mignon? On the Courtâs telling, the âcruxâ of the fraud in some of these examples lies merely in âhow and when services were provided,â while in others the âcruxâ involves âwho received the services.â Ante, at 20. But how to tell which is which?
âThe Courtâs âcruxâ test seemingly offers no sure way through this âblizzard of . . . hypotheticals.â Ibid., n. 10. Nor is that because I have cherry-picked âhard cases.â Ibid. Scenarios like theseâand variations of themâillustrate  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 scenariosâranging from the mundane to the fancifulâthat collapse even your most basic intuitions about what §1028A(a)(1) does and does not criminalize. Try making up some of your own and running them by a friend or family member. You may be surprised at how sharply instincts diverge.
âFor 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 qualifications of the individual who provided those services and the date on which they occurred. See ante, at 2, 20. But on another framing, the patientâs identity was âa key mover,â perhaps even âat the crux,â of the fraud. Mr. Dubin could not have successfully billed the insurance provider without accurately offering up some specific patientâs 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 specific identity of a âTexas Medicaid enrollee who had at least three hours of psychological-testing reimbursement left in his or her account.â Brief for United States 13. Along the way, Mr. Dubinâs fraud directly harmed the patient by depriving him of his annual eligibility for otherwise-Â compensable psychological services. From the patientâs perspective, Mr. Dubinâs use of his âmeans of identificationâ could hardly feel âancillary.â Ante, at 1â2.
âAs 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 âordinary peopleâ with âfair notice of the conduct [they] punis[h].â 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 Courtâs âcruxâ test, no boundary separates conduct that gives rise to liability from conduct that does not. And it appears I share this concern with the very lower court judges who will have to apply this standard prospectively. As even many of the Fifth Circuit dissenters below warned, the sort of âfacilitation standardâ the Court today adopts, âwith its incidental/integral dividing line,â is unworkable because it âlacks clear lines and a limiting principle.â 27 F. 4th 1021, 1042 (2022) (en banc) (Costa, J., dissenting). In the end, it is hard not to worry that the Courtâs âcruxâ test will simply become a fig leaf for judgesâ and jurorsâ own subjective moral judgments about whether (as the Court itself puts it) the defendantâs crime is âone that warrants a 2-year mandatory minimum.â Ante, at 17.
âI do not question that the Court today has done the best it might to make sense of this statute. Itâs just that it faces an impossible task. In the past when this Court has grappled with similar statutory language, it has done so in contexts where the relevant terms could carry only a few possible (and comparatively fixed) meanings. For example, when it comes to the âus[e]â of a firearm âin relationâ 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 offenseâused, for example, as compensation in an exchange for illicit drugs. Smith v. United States, 508 U. S. 223, 237â238 (1993). Or the gun could be â âused as a weaponâ â by being discharged or brandished. Id., at 243 (Scalia, J., dissenting). 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 20, n. 10.
âThe same cannot be said for §1028A(a)(1), though. There are an uncountable number of ways in which an individual could âus[e]â the âmeans of identificationâ of another to commit fraud. That list covers everything from including a victimâs name in the subject line of a fraudulent email; to misrepresenting information on a loan form involving a 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 âusesâ that violate §1028A(a)(1) from others that do not. In this way, §1028A(a)(1) is not just an âambiguousâ statuteââone that does define prohibited conduct with some precision, but [that] is subject to two or more different interpretations.â J. Decker, Addressing Vagueness, Ambiguity, and Other Uncertainty in American Criminal Laws, 80 Denver U. L. Rev. 241, 261 (2002) (emphasis added). Instead, it is a vague statuteâone that âdoes not satisfactorily define the proscribed conductâ at all. Id., at 260â261.
âI do not write this opinion as wishcasting. Perhaps, by applying the Courtâs âcruxâ test, lower courts will achieve a consistency that has, to date, eluded them. Or perhaps they will, prompted by todayâs 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 âaggravated identity thief.â That is a problem Congress alone can fix. Until it does, I fear the issues that have long plagued lower courts will persist. And I will not be surprised if someday, maybe someday soon, they find their way back here.