(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 satisfied 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 conviction 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 decision, with five concurring judges acknowledging that under the Government’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 Government’s view, a defendant “uses” a means of identification “in relation 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 offenses. 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 definitions 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 intended.” Ibid. “In relation to” is similarly context sensitive. If extended 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 context 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 criminality. 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 previously 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. Instead, “identity theft” has a focused meaning: “[T]he fraudulent appropriation 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 supports a reading of “in relation to” 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 “uses” the means of 

identification itself to defraud others. Further, the inclusion of “aggravated” in §1028A’s title suggests that Congress had in mind a particularly 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 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 “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 addition, 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 intermingles 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 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)’s enhancement targets situations where

the means of identification itself is at the crux of the underlying criminality, not just an ancillary billing feature. Pp. 15–17.

(e) In contrast to the staggering breadth of the Government’s reading of §1028A, this Court has “ ‘traditionally exercised restraint in assessing 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 Buren v. United States, 593 U. S. ___. The vast sweep of the Government’s reading—under which everyday overbilling cases would account 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 defendants under its sweeping reading, this Court “cannot construe a criminal statute on the assumption that the Government will ‘use it responsibly.’ ” 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 overbilled 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), 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 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. 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 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, petitioner’s conduct also constituted “[a]ggravated identity theft” under §1028A(a)(1).

Section 1028A(a)(1) applies when a defendant, “during 

and in relation to any [predicate offense], knowingly transfers, 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 petitioner’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 

—————— 1The 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. 
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 aggravated identity theft.” Id., at 38. Nevertheless, the District Court denied petitioner’s post-trial challenge to his aggravated 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 described 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 Government 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 prosecution involving an ambulance service inflating its reimbursement 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 involved a defendant who “provided massage services to patients 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 identification “in relation to” healthcare fraud. The parties offer competing readings of these two elements. 

The Government reads the terms broadly and in isolation. 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 furthers’ 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 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.

Petitioner, in response, offers a more targeted reading.

For petitioner, using a means of identification in relation to 

—————— 2See 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. 3The 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. 
 

Cite as: 599 U. S. ____ (2023) 5 

Opinion of the Court 

a predicate offense requires “a genuine nexus to the predicate 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 received a certain service,” but not “fraudulent claims regarding how or when a service was performed.” 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 “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 information 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, indeterminate, 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 resolve 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 implementation.” Ibid. Beyond that general concept, however, “‘use’ takes on different meanings depending on context,” and because it “draws 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.” 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 activity.” 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 undertaking,” 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 statutory context, therefore, that determines what kind of active 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 indeterminacy, 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 nowhere.’” 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 “considered 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 renders §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 

—————— 4The 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, during 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 enhancement 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” indeterminate, 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 component words.” Epic Systems Corp. v. Lewis, 584 U. S. ___, 

___ (2018) (slip op., at 23) (internal quotation marks omitted). Instead, “[l]inguistic and statutory context also matter.” 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 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 

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 resolution of a doubt’ about the meaning of a statute.” Almendarez-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 
 

 

 

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Opinion of the Court 

title Congress chose is among those terms. Even the Government 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 summarizing 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 independently suggest.” Yates v. United States, 574 U. S. 528, 

552 (2015) (ALITO, J., concurring in judgment). As explained 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 connection with identification documents, authentication features, and information.’” Id., at 655. Section 1028A, in contrast, 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 identification 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, possessed, 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 “identity 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 dictionary defines identity theft as “the fraudulent appropriation and use of another person’s identifying data or documents, 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 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 

driver’s-license number, and uses the information to deceive 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 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 “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 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; we might say the filet mignon’s identity was stolen, 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 encompasses when a defendant “uses the information to deceive others,” Black’s 894 (emphasis added), and “the fraudulent . . . use” of a means of identification, Webster’s 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 Circuit’s heuristic. 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 ‘aggravated’ offense is one ‘made worse or more serious by circumstances such as violence, the presence of a deadly weapon, 

or the intent to commit another crime.’” CarachuriRosendo 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 overbilling 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 language 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, everyday 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 Government 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 authority, a means of identification of another person,” “during 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.’” McDonnell v. United States, 579 U. S. 550, 568–569 (2016) (quoting Jarecki v. G. D. Searle & Co., 367 U. S. 303, 307 (1961)).

“[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.” McDonnell, 579 

U. S., at 569 (internal quotation marks omitted). 

The two neighboring verbs here, “transfers” and “possesses,” 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 unlawfully “transfer” 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 “‘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 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: “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 person’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 specifically.

Because “transfer” and “possess” channel ordinary identity theft, noscitur a sociis indicates that “uses” should be 

—————— 7Those who find legislative history helpful will find yet further support. “[P]ossesses” refers to “someone who has wrongly acquired another’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 McDonnell, 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 identification to deceive or defraud is a common feature of identity 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 various 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 person’s identification information to get access to that person’s bank account.” Ibid. 

Another canon of construction offers a further point in favor 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.” Bailey, 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 information 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 aspects 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 facilitate 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 petitioner’s transfer of the patient’s means of identification to 

Medicaid. It is hard to imagine when “uses” 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.

In sum, §1028A(a)(1)’s title and text are mutually reinforcing. Both point toward requiring the means of identification to be at the crux of the criminality. 

D 

Section 1028A’s list of predicate offenses points to yet another 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 underlying 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 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 “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 collapses the enhancement into the enhanced. Here, the Government claims that because petitioner’s overbilling was facilitated 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 services, Medlock, 792 F. 3d, at 706. Patient names will be on 

prescriptions, Berroa, 856 F. 3d, at 148, 155–156, 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 Government’s own reading,

such cases are “automatically identity theft,” Tr. of Oral 

Arg. 82, independent of whether the name itself had anything to do with the fraudulent aspect of the offense. 

Nor are these implications confined to healthcare. Section 1028A(a)(1)’s predicates include a vast array of offenses, including wire fraud and mail fraud. §1028A(c)(5).

The Government’s boundless reading of “uses” and “in relation to” would cover facilitating mail fraud by using another

person’s name to address a letter to them.8 Even beyond 

—————— 8To 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 (“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. 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 authority.” 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 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 Government’s reading creates an 

automatic 2-year sentence for generic overbilling that happens to use ubiquitous payment methods. 

A far more sensible conclusion from the statutory structure is that §1028A(a)(1)’s enhancement is not indiscriminate, but targets situations where the means of identification 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 billing. 

E 

If more were needed, a final clue comes from the staggering 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 equivocal language.” Spears, 729 F. 3d, at 758. 

—————— 

another element of the statute show that the Government itself understands 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 reading incongruous breadth into opaque language in criminal 

statutes. In Van Buren v. United States, 593 U. S. ___ 

(2021), the “far-reaching consequences” of the Government’s reading “underscore[d] the implausibility of the Government’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 accountant.” 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 spoliation 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 intent.” 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 common billing methods, they would all be subject to a mandatory 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 everyday overbilling cases would account for the majority of violations 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 prosecutors will act responsibly. To this, the Court gives a justas-familiar response: We “cannot construe a criminal statute on the assumption that the Government will ‘use it responsibly.’” 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-ranging 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 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 

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 

—————— 9Even 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 inclusion 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 cannot 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 summarized 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 patient’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. 

—————— 10Adrift 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 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 “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 approach would also leave victims of actual aggravated identity theft, a serious 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 Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion. 

It is so ordered. 
GORSUCH, J., concurring

_________________ 

_________________ 

Cite as: 599 U. S. ____ (2023) 1 

GORSUCH, 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 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” 
 

 

GORSUCH, J., concurring

2 DUBIN v. UNITED STATES 

GORSUCH, 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 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 
GORSUCH, J., concurring

Cite as: 599 U. S. ____ (2023) 3 

GORSUCH, 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 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 
 

 

 

GORSUCH, J., concurring

4 DUBIN v. UNITED STATES 

GORSUCH, 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 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 
 

GORSUCH, J., concurring

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GORSUCH, J., concurring in judgment 

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 otherwisecompensable 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 
 

GORSUCH, J., concurring

6 DUBIN v. UNITED STATES 

GORSUCH, J., concurring in judgment 

about a 2-year mandatory federal prison sentence. Criminal statutes are not games to be played in the car on a crosscountry 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 
GORSUCH, J., concurring

Cite as: 599 U. S. ____ (2023) 7 

GORSUCH, J., concurring in judgment 

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 cosigner; 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.