Flank Steak Identity Theft
Justice Gorsuch authors and IllAdvised Opinion
When Congress has written a law that, the government insists, means that we are all guilty of breaking it, is it a law? Justice Gorsuch writes, “The United States’ maximalist approach has simplicity on its side, yes; an everybody-is-guilty standard is no challenge to administer. “ and that is, indeed, a problem.
But in the light of my previous posts I would point out that the next biggest problem here was highlighted in my ‘Ignorance of the Law’ post. When a law is so vague that even all the kings lawyers can’t figure out where the limits are, the average individual must, by definition, remain ignorant of the law.
I post his entire concurrence below, it is well worth reading:
Concurrence
SUPREME COURT OF THE UNITED STATES
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No. 22–10
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David Fox Dubin, PETITIONER v. UNITED STATES
on writ of certiorari to the united states court of appeals for the fifth circuit
[June 8, 2023]Justice Gorsuch, concurring in the judgment.
Whoever among you is not an “aggravated identity thief,” 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 “[i]n our constitutional order, a vague law is no law at all.” United States v. Davis, 588 U. S. ___, ___ (2019) (slip op., at 1).
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 identification 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 determine what conduct that law reaches. It is, as the Court acknowledges, no easy task. Both the term “us[e]” and the phrase “in relation to” can support a multitude of possible meanings. Ante, at 5–7. They of course “ ‘imply action and implementation.’ ” Ante, at 6 (quoting Bailey v. United States, 516 U. S. 137, 145 (1995)). Beyond that “general concept,” however, we must fend for ourselves based only on limited contextual clues. Ante, at 5–7.
The United States offers up a rapacious interpretation that would require only “the use of th[e] means of identification [to] ‘facilitat[e] or furthe[r]’ the predicate offense in some way.” Brief for United States 10 (emphasis added). Admittedly, this reading “fall[s] within the range” of plausible meanings the statute could support. Ante, at 7. But so too do other readings—ones that require a more demanding “nexus” between the “means of identification” and the underlying misconduct. Ante, at 7–8. For many of the reasons 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 administer. But the Constitution prohibits the Judiciary from resolving reasonable doubts about a criminal statute’s meaning 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) (slip op., at 6–9). 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 identification is at the crux of the underlying criminality.” Ante, at 10 (emphasis added). “In other words, the means of identification specifically” must be in some way “a key mover in the criminality.” Ibid. (emphasis added). Put still another way, the “means of identification” must play the (or maybe a) “central role” in the commission of the offense. Ibid. (emphasis added).
Setting 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 “means of identification” “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 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 “means of identification” 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 parties. Just how much “causation” must a prosecutor establish to sustain a §1028A(a)(1) conviction? For that matter, how does one even determine the extent to which a “means of identification” “caused” an offense, as compared to the many other necessary inputs?
The Court supplies no firm answer. Instead, it leans on various illustrations that only highlight the difficulties inherent in this exercise. Take, for instance, the Court’s assurance that a “waiter who serves flank steak but charges for filet mignon using an electronic payment method” has not committed aggravated identity theft. Ante, at 1, 11. Why not, exactly? In one sense, the “means of identification” (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 scenario 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 in advance,” 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).
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 appetizer he ordered that never arrived. What about an appetizer 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 customer’s credit card information on the dark web, and another restaurant ran the card for filet 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 20. 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—illustrate 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 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.
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 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 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 specific patient’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 specific identity of a “Texas Medicaid enrollee who had at 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 identification” could hardly feel “ancillary.” Ante, at 1–2.
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 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 “facilitation standard” the Court today adopts, “with its incidental/integral dividing line,” is unworkable because it “lacks clear lines and a limiting principle.” 27 F. 4th 1021, 1042 (2022) (en banc) (Costa, J., dissenting). In the end, it is hard not to worry that the Court’s “crux” test will simply become a fig leaf for judges’ and jurors’ own subjective moral judgments about whether (as the Court itself puts it) the defendant’s crime is “one that warrants a 2-year mandatory minimum.” Ante, at 17.
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 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 “us[e]” of a firearm “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., 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.
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 identification” of another to commit fraud. That list covers everything from including a victim’s 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 “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 define prohibited conduct with some precision, but [that] is subject to two or more different interpretations.” 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 statute—one that “does not satisfactorily define 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 “aggravated identity thief.” 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.