Aggravated Identity Theft

On June 8, 2023, the Supreme Court decided Dubin v. U.S, 599 U.S. ___ (2023), which dealt with the applicability 18 §1028A(a)(1), the federal aggravated identity theft statute, which has a two-year mandatory minimum prison sentence.  The Government uses it frequently with wire fraud charges, and sometimes uses it as an inducement or bargaining tool is obtaining an early plea from a defendant The issue before the Dubin Court was the contours of what it means to “use” another’s “means of identification” (social security number, date of birth, name etc.) “during and in relation to” a predicate offense (usually an underlying fraud charge).

Dubin held that 18 USC  §1028A(a)(1) is violated when the misuse of another person’s identification is at the crux of what makes the underlying offense criminal.  In a unanimous decision, Dubin, narrowed the reach of identity theft law.  The Court held that for crime of aggravated identity theft, a defendant must have used another person’s means of identification in relation to a predicate offense and the use must be the crux of what makes the conduct criminal. And what does that mean exactly?  The Dubin Court held that 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. Dubin, 599 U.S. at 1 and 20. No longer can the misuse of the other person’s identification be an ancillary feature of the  predicate fraud offense.  While the exact contours of this “but-for” cause and the meaning of “being at the crux of the criminality” will be ironed out in future cases, this is a very positive case for federal criminal defendants charged with aggravated identity theft.

We here at LGR Law Group stay on top of changes in the law so that we can best represent our clients.  If you or a loved one are charged or threatened with wire fraud, bank fraud, healthcare fraud, internet fraud, credit card fraud or any other federal criminal matter, contact us at LGR Law. Call 973 239 4300 or email [email protected].   We fight for your rights and protect your freedom. Go to to see more about our firm.

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