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

Argument: This amicus brief illustrates that the 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. This brief also demonstrates that the statutory purpose of Section 1028A is wholly at odds with the Fifth Circuit’s expansive reading. 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.” 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.

Brief of Amicus Curiae National Association of Criminal Defense Lawyers in Support of Defendant-Appellant and Reversal.

Argument: The Fifth Circuit panel’s interpretation of 18 U.S.C. § 1028A, the aggravated identity theft statute, expands the bounds of the statute beyond what Congress intended.  The interpretation is a result of the overcriminalization of the statute and prosecutorial overreach, and if upheld, threatens to transform the statute to include run-of-the-mill fraudsters, “stray[ing] far afield from the conduct targeted by Congress” under the statute.  United States. v. Berroa, 856 F.3d 141, 156 (1st Cir. 2017).  The panel construed the statute to encompass a healthcare provider manager’s use of a patient’s information to bill Medicaid for services that were provided to that patient but misrepresented during the billing process.  Such an interpretation—which criminalizes conduct beyond real, classic identity theft (i.e., impersonating someone or stealing his identity)—is at odds with the legislative purpose to punish identity thieves and the common-sense reading of the statute. 

Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of Petitioner.

Argument: The Court should adopt the Model Penal Code Rule (§ 202(4) (1985)) that a specified mens rea requirement extends to all material elements of a statute unless a contrary purpose plainly appears, and that the rule of lenity requires reading the statute to require knowledge of all elements of the crime.