(Slip Opinion) OCTOBER TERM, 2022 1
Syllabus
NOTE: Where 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
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 defrauding 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 identification of another person.” The
Government argued below that §1028A(a)(1) was automatically satis-
fied because Dubin’s fraudulent Medicaid billing included the patient’s
Medicaid reimbursement number—a “means of identification.” Bound
by Fifth Circuit precedent, the District Court allowed Dubin’s convic-
tion for aggravated identity theft to stand, even though, in the District
Court’s view, the crux of the case was fraudulent billing, not identity
theft. The Fifth Circuit sitting en banc affirmed in a fractured deci-
sion, with five concurring judges acknowledging that under the Gov-
ernment’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
identification “in relation to” a predicate offense when the use is at the
crux of what makes the conduct criminal. Pp. 4–21.
(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 identification “in relation to” healthcare fraud. On the Gov-
ernment’s view, a defendant “uses” a means of identification “in rela-
tion to” a predicate offense if the defendant employs that means of
identification to facilitate or further the predicate offense in some way.
2 DUBIN v. UNITED STATES
Syllabus
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 of-
fenses. Dubin’s more targeted reading requires that the use of a means
of identification have “a genuine nexus” to the predicate offense. When
the underlying crime involves fraud or deceit, as many of §1028A’s
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)’s
text and structure points to a narrower reading. Pp. 4–5.
(b) The terms “uses” and “in relation to” have been singled out by
this Court as being particularly sensitive to context. The “various def-
initions 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. 5–7.
(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 identification is at the crux of the crimi-
nality. Pp. 8–15.
(1) Section 1028A is a focused, standalone provision, and its title—
“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-Torres 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 prolific” 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 pre-
viously observed the contrast between §1028A’s targeted title and the
broad title of neighboring provision §1028: “ ‘Fraud and related activity
in connection with identification documents, authentication features,
and information.’ ” 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
Cite as: 599 U. S. ____ (2023) 3
Syllabus
identity theft specifically, rather than all fraud involving means of
identification. 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
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 identifica-
tion is at the crux of the underlying crime. And under these defini-
tions, identity theft occurs when a defendant “uses” the means of
identification 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. 8–12.
(2) Section 1028A(a)(1)’s 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 “knowingly transfers, possesses, or uses, without
lawful authority, a means of identification of another person,” “during
and in relation to” any predicate offense. (Emphasis added). The two
verbs neighboring “uses”—“transfers” and “possesses”—are most nat-
urally 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 per-
son. Because “transfer” and “possess” channel ordinary identity theft,
the interpretative cannon noscitur a sociis (“ ‘a word is known by the
company it keeps,’ ” McDonnell v. United States, 579 U. S. 550, 568–
569) indicates that “uses” should be read in a similar manner. In ad-
dition, the Court “assume[s] that Congress used [three] terms because
it intended each term to a have a particular, nonsuperfluous meaning.”
Bailey, 516 U. S., at 146. On a more targeted reading, §1028A(a)(1)’s
three verbs capture the complexity of identity theft, which intermin-
gles aspects 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. 12–15.
(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
4 DUBIN v. UNITED STATES
Syllabus
underlying offenses that do not impose any mandatory prison sentence
at all. The Government’s reading, however, does not meaningfully dis-
tinguish 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 defend-
ant faces an automatic 2-year sentence for generic overbilling that
happens to use names or other means of identification for routine bill-
ing and payment. A far more sensible conclusion from the statutory
structure is that §1028A(a)(1)’s enhancement targets situations where
the means of identification itself is at the crux of the underlying crim-
inality, not just an ancillary billing feature. Pp. 15–17.
(e) In contrast to the staggering breadth of the Government’s read-
ing of §1028A, this Court has “ ‘traditionally exercised restraint in as-
sessing 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 Bu-
ren v. United States, 593 U. S. ___. The vast sweep of the Govern-
ment’s reading—under which everyday overbilling cases would ac-
count for the majority of violations—“underscores the implausibility of
the Government’s interpretation.” Id., at ___. While the Government
represents that prosecutors will act responsibly in charging defend-
ants under its sweeping reading, this Court “cannot construe a crimi-
nal statute on the assumption that the Government will ‘use it respon-
sibly.’ ” McDonnell, 579 U. S., at 576. Pp. 17–19.
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., filed an opinion concurring in the judgment.
Cite as: 599 U. S. ____ (2023) 1
Opinion of the Court
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. 22–10
_________________
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 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]ggravated identity theft,” 18 U. S. C. §1028A(a)(1), trig-
gering a mandatory 2-year prison sentence. The Fifth Cir-
cuit 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 person’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 aggra-
vated identity theft. The same is true of a waiter who
serves flank steak but charges for filet 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
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 petitioner’s overbilling
was inflating the value of services actually provided, while
2 DUBIN v. UNITED STATES
Opinion of the Court
the patient’s means of identification 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 qualifications of the employee who actually performed
the testing and who was only a licensed psychological asso-
ciate. This falsehood inflated the amount of reimburse-
ment. Petitioner also changed the date on which the exam-
ination occurred.1 Even with the inflation, the total
reimbursement was only $338. App. 49. Petitioner was ac-
cordingly charged with healthcare fraud, a federal offense
under 18 U. S. C. §1347. According to the Government,
however, petitioner’s conduct also constituted “[a]ggra-
vated identity theft” under §1028A(a)(1).
Section 1028A(a)(1) applies when a defendant, “during
and in relation to any [predicate offense], knowingly trans-
fers, possesses, or uses, without lawful authority, a means
of identification of another person.” 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 “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 satisfied because peti-
tioner’s fraudulent billing included the patient’s Medicaid
reimbursement number (a “means of identification”). The
District Court was less sure. “[T]his doesn’t seem to be an
aggravated identity theft case” the court explained, as “the
——————
1 The parties dispute whether changing the date affected the availabil-
ity 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. ____ (2023) 3
Opinion of the Court
whole crux of this case is how [petitioner was] billing.” App.
37–38. This overbilling was “criminal,” but it “wasn’t ag-
gravated identity theft.” Id., at 38. Nevertheless, the Dis-
trict Court denied petitioner’s post-trial challenge to his ag-
gravated 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 affirmed. On rehearing
en banc, a fractured court affirmed again. Five judges who
agreed with the Government nonetheless acknowledged
that under the Government’s reading of §1028A(a)(1), “the
elements 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
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] prescriptions that their [actual] patients would
then fill at . . . pharmacies.” United States v. Berroa, 856
F. 3d 141, 148, 155–156 (CA1 2017). There was also a pros-
ecution involving an ambulance service inflating its reim-
bursement 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) (citing United States v. Medlock, 792
F. 3d 700, 705 (CA6 2015)). Yet another prosecution in-
volved a defendant who “provided massage services to pa-
tients to treat their pain,” but improperly billed this “as a
Medicare-eligible physical therapy service.” United States
v. Hong, 938 F. 3d 1040, 1051 (CA9 2019).
4 DUBIN v. UNITED STATES
Opinion of the Court
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
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
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 identifica-
tion “in relation to” healthcare fraud. The parties offer com-
peting readings of these two elements.
The Government reads the terms broadly and in isola-
tion. On the Government’s view, “[a] defendant uses a
means of identification ‘in relation to’ a predicate offense if
the use of that means of identification ‘facilitates or fur-
thers’ the predicate offense in some way.” Brief for United
States 10 (quoting 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 automati-
cally any time a name or other means of identification hap-
pens 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 identification in relation to
——————
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 ob-
tain 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. ____ (2023) 5
Opinion of the Court
a predicate offense requires “a genuine nexus to the predi-
cate offense.” 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 §1028A’s predicates do,
this entails using a means of identification specifically 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
language in §1028A(a)(1) “covers misrepresenting who re-
ceived a certain service,” but not “fraudulent claims regard-
ing how or when a service was performed.” Brief for Peti-
tioner 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 “how” services were rendered; the patients’
names were part of the billing process, but ancillary to what
made the conduct fraudulent. See Michael, 882 F. 3d, at
628–629. In contrast, take the pharmacist who swipes in-
formation from the pharmacy’s files and uses it to open a
bank account in a patient’s name. That “misuse of th[e]
means of identification” 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, indeter-
minate, the statutory context, taken as a whole, points to a
narrower reading.
B
In interpreting the scope of “uses” and “in relation to,” the
Court begins with those terms themselves. Both terms
6 DUBIN v. UNITED STATES
Opinion of the Court
have been singled out by this Court as particularly sensitive
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 difficulties
because of the different meanings attributable to it.” Bailey
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 defined 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 definitions of ‘use’ imply action and im-
plementation.” Ibid. Beyond that general concept, how-
ever, “ ‘use’ takes on different meanings depending on con-
text,” and because it “draws meaning from its context, . . .
we will look not only to the word itself, but also to the stat-
ute and the [surrounding] scheme, to determine the mean-
ing 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”).
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 stat-
utory context, therefore, that determines what kind of ac-
tive 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 inde-
terminacy, then for all practical purposes” there would be
Cite as: 599 U. S. ____ (2023) 7
Opinion of the Court
no limits, as “ ‘[r]eally, universally, relations stop no-
where.’ ” 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 Classics 1980)). This language thus cannot be “con-
sidered in isolation,” Maracich v. Spears, 570 U. S. 48, 59
(2013), and the Court must “go beyond the unhelpful text
and the frustrating difficulty of defining [this] key term”
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 (“ ‘[I]n relation
to’ ” requires “some purpose or effect” between two things).
Yet the kind of relationship 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-
ing and in relation to any crime of violence or drug trafficking crime . . .
uses or carries a firearm.” 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 enhance-
ment relates. Words can wound, but names and numbers are not guns.
If anything, 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.
8 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 definitions of its compo-
nent words.” Epic Systems Corp. v. Lewis, 584 U. S. ___,
___ (2018) (slip op., at 23) (internal quotation marks omit-
ted). Instead, “[l]inguistic and statutory context also mat-
ter.” 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) (slip op., at 4–5).
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
Government admits bears little relationship to the common
understanding of identity theft. In contrast, a more tar-
geted reading accurately captures the ordinary understand-
ing of identity theft, where misuse of a means of identifica-
tion 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 statute
and the heading of a section’ are ‘tools available for the res-
olution of a doubt’ about the meaning of a statute.” Al-
mendarez-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) (slip op., at 9). 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
Cite as: 599 U. S. ____ (2023) 9
Opinion of the Court
title Congress chose is among those terms. Even the Gov-
ernment 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 sum-
marizing a list of “complicated and prolific” provisions.
Trainmen, 331 U. S., at 528. Section 1028A is a focused,
standalone provision. Second, a title is “especially valuable
[where] it reinforces what the text’s nouns and verbs inde-
pendently suggest.” Yates v. United States, 574 U. S. 528,
552 (2015) (ALITO, J., concurring in judgment). As ex-
plained below, §1028A(a)(1)’s text independently suggests
a focus on identity theft. See infra, at 12–15.
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 con-
nection with identification documents, authentication fea-
tures, and information.’ ” Id., at 655. Section 1028A, in con-
trast, 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 specifically, rather
than all fraud involving means of identification. Ibid.5
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 iden-
tification is employed in a way that facilitates a crime,
——————
5 Flores-Figueroa held that under §1028A(a)(1) a defendant must know
“that the ‘means of identification’ he or she unlawfully transferred, pos-
sessed, or used, in fact, belonged to ‘another person.’ ” 556 U. S., at 647.
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
provision covers “classic identity theft.” Id., at 655–656.
10 DUBIN v. UNITED STATES
Opinion of the Court
bears little resemblance to any ordinary meaning of “iden-
tity theft.” 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 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 dic-
tionary defines identity theft as “the fraudulent appropria-
tion and use of another person’s identifying data or docu-
ments, as a credit card.” Webster’s Unabridged Dictionary
xi (2d ed. 2001) (Webster’s). Another similarly offers “[t]he
unlawful taking and use of another person’s identifying in-
formation for fraudulent purposes; specif[ically] a crime in
which someone steals personal information about and be-
longing to another, such as a bank-account number or
driver’s-license number, and uses the information to de-
ceive others.” Black’s Law Dictionary 894 (11th ed. 2019)
(Black’s) (defining “identity theft”).6
This supports a reading of “in relation to” 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 spe-
cifically is a key mover in the criminality. This central role
played by the means of identification, which serves to des-
ignate a specific 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-
——————
6 “Steal[ing]” can, of course, include situations where something was
initially lawfully acquired. See Black’s 1710 (defining “steal”).
Cite as: 599 U. S. ____ (2023) 11
Opinion of the Court
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 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 mignon’s identity was sto-
len, perhaps, but not the diner’s.
This understanding of identity theft also supports a more
targeted definition of “uses.” The word “use” appears in
these definitions with a specific meaning: Identity theft en-
compasses when a defendant “uses the information to de-
ceive others,” Black’s 894 (emphasis added), and “the fraud-
ulent . . . use” of a means of identification, Webster’s xi
(emphasis added). In other words, identity theft is commit-
ted when a defendant uses the means of identification itself
to defraud or deceive. This tracks the Sixth Circuit’s heu-
ristic. When a means of identification is used deceptively,
this deception goes to “who” is involved, rather than just
“how” or “when” services were provided. Use of the means
of identification 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 Law Dictionary 75 (9th ed. 2009)). This suggests
that Congress had in mind a particularly serious form of
identity theft. Yet the Government’s reading “would apply
an ‘aggravated’ . . . label” to all manner of everyday over-
billing offenses. Carachuri-Rosendo, 560 U. S., at 574. “Of
12 DUBIN v. UNITED STATES
Opinion of the Court
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 lan-
guage tells us not to expect, . . . we must be very wary of the
Government’s position.” Ibid. (internal quotation marks
omitted).
The title suggests identity theft is at the core of
§1028A(a)(1). On the Government’s reading, however, eve-
ryday 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.
2
The title is, by definition, 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 reflect
an ordinary understanding of identity theft.
While “uses” is indeterminate in isolation, here it has
company. Section 1028A(a)(1) applies when a defendant
“knowingly transfers, possesses, or uses, without lawful au-
thority, a means of identification of another person,” “dur-
ing 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.’ ” McDon-
nell v. United States, 579 U. S. 550, 568–569 (2016) (quot-
ing Jarecki v. G. D. Searle & Co., 367 U. S. 303, 307 (1961)).
“[T]his canon is often wisely applied where a word is capa-
ble of many meanings in order to avoid the giving of unin-
tended 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
Cite as: 599 U. S. ____ (2023) 13
Opinion of the Court
§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 “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 sim-
ilarly 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 “ ‘theft.’ ” 556 U. S., at
655. The Government, at argument, agreed: these two
verbs “refer to circumstances in which the information is
stolen.” 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 identification 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. Similarly,
“the [1] fraudulent appropriation and use of [3] another per-
son’s [2] identifying data or documents.” Webster’s xi. If
this parallel were not enough, §1028A(a)(1)’s title indicates
that the type of theft its verbs connote is identity theft spe-
cifically.
Because “transfer” and “possess” channel ordinary iden-
tity theft, noscitur a sociis indicates that “uses” should be
——————
7 Those who find legislative history helpful will find yet further sup-
port. “[P]ossesses” refers to “someone who has wrongly acquired an-
other’s means of identification, 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 identification and actually put that means of
identification to use.” Ibid.
14 DUBIN v. UNITED STATES
Opinion of the Court
read in a similar manner to its companions. See McDon-
nell, 579 U. S., at 568–569. “Uses” is quite amenable to
such a reading, and not just because of its indeterminacy.
As explained above, “using” another person’s means of iden-
tification to deceive or defraud is a common feature of iden-
tity theft. See Webster’s xi (“the fraudulent . . . use” of a
means of identification (emphasis added)); Black’s 894
(when a defendant “uses the information to deceive others”
(emphasis added)).
Congress thus employed a trio of verbs that capture var-
ious 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 find discarded credit card
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 per-
son’s identification information to get access to that per-
son’s bank account.” Ibid.
Another canon of construction offers a further point in fa-
vor of this narrow interpretation. The Court “assume[s]
that Congress used [three] terms because it intended each
term to a have a particular, nonsuperfluous 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 definitions 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 (emphasis added). Identity theft thus intermingles as-
pects of 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.
Cite as: 599 U. S. ____ (2023) 15
Opinion of the Court
In contrast, if §1028A(a)(1)’s 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
“uses” without “virtually any function.” Bailey, 516 U. S.,
at 146. Return to a definition 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 identification to fa-
cilitate a crime, the defendant will also possess or transfer
the means of identification in a way that facilitates the
crime. For example, petitioner’s possession of the patient’s
means of identification facilitated the fraud, as did peti-
tioner’s transfer of the patient’s means of identification to
Medicaid. It is hard to imagine when “uses” would not sim-
ilarly be covered by, at least, one of the two other verbs.
This risk of superfluity suggests giving §1028A(a)(1) a more
precise reading.
In sum, §1028A(a)(1)’s title and text are mutually rein-
forcing. Both point toward requiring the means of identifi-
cation 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
sentence of any kind. See, e.g., 18 U. S. C. §1035 (“[f]alse
statements relating to health care matters,” setting no min-
imum sentence). This prevents sentencing judges from con-
sidering the severity of the offense, even if the amount of
money involved was quite small or there are other mitigat-
ing factors. Interpretation of §1028A(a)(1) should thus re-
flect the “distinction between” the aggravated identity theft
crimes that “Congress sought to distinguish for heightened
punishment and other crimes.” Leocal, 543 U. S., at 11.
16 DUBIN v. UNITED STATES
Opinion of the Court
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 fa-
cilitated by the patient’s 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 ser-
vices, Medlock, 792 F. 3d, at 706. Patient names will be on
prescriptions, Berroa, 856 F. 3d, at 148, 155–156, and pa-
tients committing fraud on their own behalf will often have
to include the names of others on their forms, such as doc-
tors or employers. Under the Government’s own reading,
such cases are “automatically identity theft,” Tr. of Oral
Arg. 82, independent of whether the name itself had any-
thing to do with the fraudulent aspect of the offense.
Nor are these implications confined to healthcare. Sec-
tion 1028A(a)(1)’s predicates include a vast array of of-
fenses, including wire fraud and mail fraud. §1028A(c)(5).
The Government’s boundless reading of “uses” and “in rela-
tion to” would cover facilitating mail fraud by using another
person’s name to address a letter to them.8 Even beyond
——————
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
identification to commit a crime. See Brief for United States 32 (“every-
one is presumed to have permission to use other people’s names” in cer-
tain 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
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 author-
ity.” Suffice it to say, these attempts to rein in §1028A(a)(1) through
Cite as: 599 U. S. ____ (2023) 17
Opinion of the Court
that, names or other means of identification are used rou-
tinely 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 predi-
cate offenses are met, the Government’s reading creates an
automatic 2-year sentence for generic overbilling that hap-
pens to use ubiquitous 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 identifica-
tion itself plays a key role—one 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 bill-
ing.
E
If more were needed, a final clue comes from the stagger-
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 ___
(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, 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 ___ (slip op., at 4) (internal quotation marks
omitted). After all, “[c]rimes are supposed to be defined by
the legislature, not by clever prosecutors riffing on equivo-
cal language.” Spears, 729 F. 3d, at 758.
——————
another element of the statute show that the Government itself under-
stands the problems that arise from its sweeping reading of “uses” and
“in relation to.”
18 DUBIN v. UNITED STATES
Opinion of the Court
Time and again, this Court has prudently avoided read-
ing incongruous breadth into opaque language in criminal
statutes. In Van Buren v. United States, 593 U. S. ___
(2021), the “far-reaching consequences” of the Govern-
ment’s reading “underscore[d] the implausibility of the Gov-
ernment’s interpretation.” Id., at ___ (slip op., at 17). In
Marinello, the Court rejected the Government’s reading of
a statute about obstructing administration 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 provide every record to an ac-
countant.” 584 U. S., at ___ (slip op., at 7). Nor was all such
conduct innocent, as the statute required an individual to
act “ ‘corruptly.’ ” Id., at ___ (slip op., at 8). Even still, “[h]ad
Congress intended” to sweep so far, “it would have spoken
with more clarity than it did.” Id., at ___ (slip op., at 7). 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 spo-
liation of evidence” that would “sweep within its reach
physical objects of every kind,” including a fish. 574 U. S.,
at 536, 540 (plurality opinion). Had Congress set out to do
so, “one would have expected a clearer indication of that in-
tent.” Ibid.
So too here. The Government’s 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 com-
mon billing methods, they would all be subject to a manda-
tory two years in federal prison. To say that such a result
Cite as: 599 U. S. ____ (2023) 19
Opinion of the Court
is implausible would be an understatement.9 Because eve-
ryday overbilling cases would account for the majority of vi-
olations 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 prose-
cutors will act responsibly. To this, the Court gives a just-
as-familiar response: We “cannot construe a criminal stat-
ute on the assumption that the Government will ‘use it re-
sponsibly.’ ” McDonnell, 579 U. S., at 576 (quoting United
States v. Stevens, 559 U. S. 460, 480 (2010)). “[T]o rely upon
prosecutorial discretion to narrow the otherwise wide-rang-
ing scope of a criminal statute’s highly abstract general
statutory language places great power in the hands of the
prosecutor.” 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 of-
fenses, 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
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
attempt to push the statutory envelope. A defendant “uses”
another person’s means of identification “in relation to” a
predicate offense when this use is at the crux of what makes
——————
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
inflates his salary while correctly identifying the co-signer,” “the inclu-
sion 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 can-
not be squared with the Government’s own “facilitates” standard.
20 DUBIN v. UNITED STATES
Opinion of the Court
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 3, 5–6 (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 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 qualifications 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.
——————
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 concurrence’s bewil-
derment is not, fortunately, the standard for striking down an Act of Con-
gress as unconstitutionally vague. There will be close cases, certainly,
but that is commonplace in criminal law. Equally commonplace are re-
quirements that something play a specific role in an offense, whether
that role is articulated as a “nexus,” Marinello v. United States, 584 U. S.
___, ___ (2018) (slip op., at 10), 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 ap-
proach would also leave victims of actual aggravated identity theft, a se-
rious offense, without the added protection of §1028A(a)(1).
Cite as: 599 U. S. ____ (2023) 21
Opinion of the Court
* * *
Because petitioner did not use the patient’s means of
identification in relation to a predicate offense within the
meaning of §1028A(a)(1), the judgment of the Court of Ap-
peals is vacated, and the case is remanded for further pro-
ceedings consistent with this opinion.
It is so ordered.
Cite as: 599 U. S. ____ (2023) 1
GORSUCH
GORSUCH , J., concurring
, J., concurring in judgment
SUPREME COURT OF THE UNITED STATES
_________________
No. 22–10
_________________
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 Ameri-
can. 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 bet-
ter 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 pros-
ecutors 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 or-
der, 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”
2 DUBIN v. UNITED STATES
GORSUCH
GORSUCH , J., concurring
, J., concurring in judgment
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 pro-
vided for such felony, be sentenced to a term of imprison-
ment 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 “gen-
eral 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 identifi-
cation [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 plau-
sible meanings the statute could support. Ante, at 7. But
so too do other readings—ones that require a more demand-
ing “nexus” between the “means of identification” and the
underlying misconduct. Ante, at 7–8. 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 adminis-
ter. But the Constitution prohibits the Judiciary from re-
solving 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) (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
Cite as: 599 U. S. ____ (2023) 3
GORSUCH
GORSUCH , J., concurring
, J., concurring in judgment
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 crim-
inality.” 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 of-
fense. 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 of-
fense? 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 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 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 in-
herent in this exercise. Take, for instance, the Court’s as-
surance that a “waiter who serves flank steak but charges
4 DUBIN v. UNITED STATES
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, J., concurring in judgment
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 identifica-
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
in advance,” not intuitions discoverable only after a prose-
cutor has issued an indictment and a judge offers an opin-
ion. 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 res-
taurant to run the charge? A different employee at a differ-
ent restaurant? What if the restaurant sold the customer’s
credit card information on the dark web, and another res-
taurant ran the card for filet mignon? On the Court’s tell-
ing, 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
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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 iden-
tity was “a key mover,” perhaps even “at the crux,” of the
fraud. Mr. Dubin could not have successfully billed the in-
surance provider without accurately offering up some spe-
cific 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
6 DUBIN v. UNITED STATES
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about a 2-year mandatory federal prison sentence. Crimi-
nal 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. Un-
der 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 sub-
jective 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 grap-
pled with similar statutory language, it has done so in con-
texts where the relevant terms could carry only a few pos-
sible (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
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could use principles of statutory interpretation to choose be-
tween 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 com-
mit fraud. That list covers everything from including a vic-
tim’s name in the subject line of a fraudulent email; to mis-
representing 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, Ambi-
guity, and Other Uncertainty in American Criminal Laws,
80 Denver U. L. Rev. 241, 261 (2002) (emphasis added). In-
stead, 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 un-
seen 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 sur-
prised if someday, maybe someday soon, they find their way
back here.