Page:Dubin v. United States.pdf/28

Rh real challenge begins. Drawing on contextual clues and rules of statutory interpretation, the Court concludes that a violation of §1028A(a)(1) occurs whenever the “use of the means of identification is at the crux of the underlying criminality.” (emphasis added). “In other words, the means of identification specifically” must be in some way “a key mover in the criminality.” Ibid. (emphasis added). Put still another way, the “means of identification” must play the (or maybe a) “central role” in the commission of the offense. Ibid. (emphasis added).

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. 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 §1028A(a)(1) conviction? For that matter, how does one even determine the extent to which a “means of identification” “caused” an offense, as compared to the many other necessary inputs?

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