DUBIN v. UNITED STATES
No. 22-10
SUPREME COURT OF THE UNITED STATES
June 8, 2023
Argued February 27, 2023
(Slip Opinion)
OCTOBER TERM, 2022
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
Held: Under
(a) This case turns on the scope of two of
(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
(c) Section
The Government urges the Court to ignore
(2) Section
(d) The list of
(e) In contrast to the staggering breadth of the Government‘s reading of
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.
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
The text and context of the statute do not support such a boundless interpretation. Instead,
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
Section
According to the Government, this is a clear aggravated identity theft case. The Government argued at trial that
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
This type of prosecution is not uncommon. The Government has, by its own admission, wielded
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
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
Petitioner, in response, offers a more targeted reading. For petitioner, using a means of identification in relation to 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
To illustrate, petitioner borrows a heuristic from the Sixth Circuit. See Michael, 882 F. 3d, at 628. The relevant language in
In deciding between the parties’ readings, one limited and one near limitless, precedent and prudence require a careful examination of
B
In interpreting the scope of “uses” and “in relation to,” the Court begins with those terms themselves. Both terms 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
“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 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
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
1
Start at the top, with the words Congress chose for
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
Indeed, this Court has already once used
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,
bears little resemblance to any ordinary meaning of “identity theft.” Consider again an unlicensed doctor who fills out a prescription actually requested
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-
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,
The title suggests identity theft is at the core of
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
While “uses” is indeterminate in isolation, here it has company. Section
The two neighboring verbs here, “transfers” and “possesses,” are most naturally read in the context of
Because “transfer” and “possess” channel ordinary identity theft, noscitur a sociis indicates that “uses” should be
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
In contrast, if
In sum,
D
Section
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,
Nor are these implications confined to healthcare. Section
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
A far more sensible conclusion from the statutory structure is that
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.”
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 is implausible would be an
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 just-as-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
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,
Here, petitioner‘s use of the patient‘s name was not at the crux of what
* * *
Because petitioner did not use the patient‘s means of identification in relation to a predicate offense within the meaning of
It is so ordered.
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
The “[a]ggravated identity theft” statute stipulates that “[w]hoever, during and in relation to any felony violation” 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.”
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
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 real challenge begins. Drawing on contextual clues and rules of statutory interpretation, the Court concludes that a violation of
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
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 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. ___
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 the sorts of problems that invariably arise in even simple
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 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 about a 2-year mandatory federal prison sentence. Criminal 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
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,
The same cannot be said for
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