Supreme Court of the United States

“ 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 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 “ identity has been stolen or misappropriated”) . ”

“ 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 (“everyone is presumed to have permission to use other people’s names” in certain ways to facilitate crimes, such as addressing a letter) ; id., at 31–32 (a defendant can have “lawful authority” to use a co-conspirator’s name to commit bank fraud) . Other times the Government has argued that no one ever has permission to commit a crime. ”

“ 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. ”

“ This helps explain 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 ”

“ 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. ”

“ 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. ”

“ 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 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 aggravated identity theft. ”

“ 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 spoliation of evidence” that would “sweep within its reach physical objects of every kind,” including a fish. ”

“ 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. ”

“ 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. ”