What does it mean to “use” another person’s identity in the context of a fraud?  Does the federal identity theft enhancement apply anytime a fraud is committed where the scheme involves the use of another person’s name? Or does “identity theft” involve more than that?  A two-year mandatory minimum prison sentence hangs in the balance.   In a recent contribution to Law360, Gabi Friedman and Zachary Baron Shemtob analyze the Supreme Court’s recent decision in Dubin v. United States, which seeks to guide lower courts in answering those questions. 

The unanimous opinion, drafted by Justice Sonia Sotomayor, reverses a Fifth Circuit decision upholding an aggravated identity theft conviction largely on the grounds that the government relied on an overly broad reading of the statute.

The opinion favors a common sense interpretive approach, and is informative for practitioners facing arguably vague criminal statutes.  It also serves as a warning to prosecutors tempted to take advantage of ambiguous statutory wording.  

The authors conclude that: “This is unlikely to be the end of the court’s critical analysis of opaque or ambiguous criminal statutes. Indeed, the question is less whether this trend will continue, and more which criminal statute will face a successful challenge next.”

Read the article here.