Dubin v. United States

Brief of National Association of Criminal Defense Lawyers as Amici Curiae in Support of Petitioner.

Brief filed: 12/29/2022


Dubin v. United States

United States Supreme Court; Case No. 22-10


NACDL urged the Court to define the scope of the identity theft statute, 18 U.S.C. § 1028A, narrowly, consistent with Congressional intent and the statute’s purpose, and reverse appellant’s conviction. The statute at issue is 18 U.S.C. § 1028A (“Section 1028A”), which criminalizes aggravated identity theft and imposes an additional, consecutive two years of incarceration if defendants “use” a means of identification of another person “during and in relation to” the commission of a number of predicate felonies. Several other federal circuit courts have recently considered the scope of Section 1028A and the majority of those have adopted narrower constructions of the statute as compared to the Fifth Circuit. In doing so, they have rejected the government’s broad theories that a person violates the statute any time he mentions or otherwise recites another person’s name or identifying information while committing a predicate offense.

“This amicus brief illustrates that this sweeping application of Section 1028A is a symptom of the federal overcriminalization epidemic, enabling unelected prosecutors to consolidate even more charging and plea-bargaining power. Endorsing the Fifth Circuit’s expansive reading of Section 1028A would add yet another powerful weapon to federal prosecutors’ already stacked arsenal. This brief also demonstrates that the statutory purpose of Section 1028A is wholly at odds with the Fifth Circuit’s rationale. Simply put, Congress did not intend to criminalize Dubin’s conduct under Section 1028A, a law enacted in 2004 to address the ‘growing problem of identity theft,” targeting those who “use false identities to commit much more serious crimes.’ Identity Theft Penalty Enhancement Act, H.R. Rep. No. 108-528, at 3 (2004), reprinted in 2004 U.S.C.C.A.N.

779 (“House Report”). Congress identified numerous examples of criminal acts covered under the statute—none of which remotely resembles Dubin’s conduct and all of which involve the use of personal information to impersonate another. In other words, the statute was intended to punish theft of an identity, something that did not happen here.”


Barbara E. Bergman, NACDL, Tucson, AZ; Henry W. Asbill, Bradley A. Marcus, and Jill Winter, Buckley LLP, Washington, DC; Daniel R. Alonso, Buckley LLP, New York, NY.

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