132 F.4th 181
2d Cir.2025Background
- Temitope Omotayo was convicted for participating in an international scheme to defraud U.S. businesses, resulting in charges of conspiracy to commit wire fraud and money laundering, both of which he conceded were supported by substantial evidence.
- The government also charged Omotayo with aggravated identity theft (18 U.S.C. § 1028A) for possessing and forwarding an invoice containing the real name of a JSS Medical Research employee (Yulia Roytman) during the scheme.
- The sole basis for the aggravated identity theft charge was Omotayo’s possession and transfer of the invoice to a co-conspirator, intended as a contingency document in case a bank questioned a wire transfer; the invoice was never actually used.
- At trial, the jury received instructions that allowed conviction if the means of identification had any “purpose, role, or effect” in the offense, a standard later challenged in light of the Supreme Court’s Dubin decision.
- While Omotayo's appeal on the wire fraud and money laundering convictions was not pursued, he appealed the aggravated identity theft conviction, arguing incorrect jury instructions and insufficient evidence under the new Dubin standard.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Correct legal standard for § 1028A (aggravated identity theft) | Omotayo: Jury was wrongly instructed under a broad standard; only "at the crux" misuse triggers § 1028A per Dubin. | Gov't: The instruction on "purpose, role, or effect" was proper at the time given pre-Dubin law. | Jury instruction was erroneous under Dubin; conviction reversed. |
| Sufficiency of evidence for § 1028A conviction | Omotayo: No evidence Roytman’s name was central to the fraud; invoice was ancillary and never used. | Gov't: Use of Roytman’s name was integral to deceiving banks and thus at the crux. | Evidence insufficient under Dubin; name use not at crux. |
| Effect of change in law (Dubin) on pre-existing conviction | Omotayo: Changes in law should apply to this appeal and reverse the outcome. | Gov't: The verdict was proper under then-existing law; change should not disturb conviction. | Change in law is controlling; mandates reversal on this issue. |
| Remand or acquittal | Omotayo: Acquittal required as evidence was insufficient. | Gov't: (Not addressed directly after Dubin; focused on affirming conviction.) | Judgment of acquittal entered on § 1028A count. |
Key Cases Cited
- Dubin v. United States, 599 U.S. 110 (2023) (Section 1028A applies only when misuse of another’s identification is "at the crux" of the underlying offense)
- Henderson v. United States, 568 U.S. 266 (2013) (plain error review applies to instructions later rendered incorrect by new law)
- Flores-Figueroa v. United States, 556 U.S. 646 (2009) (meaning of verbs in aggravated identity theft statute)
- United States v. Berroa, 856 F.3d 141 (1st Cir. 2017) (impersonation standard for identity theft)
- United States v. Munksgard, 913 F.3d 1327 (11th Cir. 2019) (facilitation standard for aggravated identity theft considered and rejected in Dubin)