Aggravated Identity Theft After Dubin: Identity Use Must Be the “Crux” of the Charged Predicate Offense, Not Merely Part of a Broader Scheme

I. Introduction

In United States v. Jennifer McDonald (4th Cir. Feb. 5, 2026), the Fourth Circuit addressed the post-Dubin v. United States, 599 U.S. 110 (2023) scope of aggravated identity theft under 18 U.S.C. § 1028A(a)(1). Jennifer Rae McDonald, a former Executive Director of the Economic Development Authority of the Town of Front Royal and the County of Warren, Virginia (“EDA”), was convicted on numerous fraud-related counts arising from complex schemes involving forged deeds, contracts, and diversion of public funds. Among the convictions was one count of aggravated identity theft tied to a wire-fraud predicate (Count 1) involving a $2 million wire transfer from EDA to TLC Settlements, LLC (“TLC”).

The appeal presented several issues: (1) whether McDonald’s unauthorized use of a real person’s identity occurred “during and in relation to” the charged predicate wire fraud as Dubin interprets that phrase; (2) whether extraordinary mid-trial delays required a mistrial; (3) whether the district court improperly excluded an unavailable witness’s grand jury testimony under Rule 804(b)(1) or under an “open door” theory; and (4) whether a supplemental jury instruction after closings violated Federal Rule of Criminal Procedure 30 and prejudiced the defense.

II. Summary of the Opinion

The Fourth Circuit affirmed McDonald’s convictions and the district court’s rulings on the mistrial, evidentiary, and jury-instruction issues, but it vacated the aggravated identity theft conviction and remanded for resentencing.

The court held that—even conceding McDonald used Truc “Curt” Tran’s identity without authorization in the broader fraud scheme—her use of Tran’s identity was not “during and in relation to” the specific predicate offense charged (Count 1 wire fraud). Under Dubin, identity use triggers § 1028A only when it is at the “crux” of what makes the predicate conduct criminal; here, the “crux” of Count 1 was McDonald’s misrepresentation to EDA that the Virginia Department of Transportation required an escrow transfer, not her impersonation of Tran in dealings with TLC.

III. Analysis

A. Precedents Cited

1. Dubin v. United States, 599 U.S. 110 (2023)

Dubin is the opinion’s centerpiece. The Supreme Court rejected a broad “facilitation” understanding of § 1028A and held that a defendant uses another’s identity “in relation to” a predicate offense only when that use is “at the crux of what makes the conduct criminal.” The Fourth Circuit treated this “crux” requirement as a narrowing principle: identity use must define the core deceit or core illegality of the charged predicate offense, not merely appear somewhere in the surrounding facts.

2. United States v. Jackson, 126 F.4th 847 (4th Cir. 2025)

The Fourth Circuit had applied Dubin once before in United States v. Jackson, upholding § 1028A where the defendant submitted Medicaid audit paperwork falsely appearing to contain patient declarations. Jackson mattered here because it illustrated a clean post-Dubin fit: the falsified identities (purported patient signatures) were part of the falsification itself—the “crux” of the fraud. The McDonald panel used Jackson as a contrast case: when the deception centers on forged attestations by real people, § 1028A is more naturally satisfied.

3. Post-Dubin circuit guidance: United States v. Croft, 87 F.4th 644 (5th Cir. 2023); United States v. Omotayo, 132 F.4th 181 (2d Cir. 2025); United States v. Gladden, 78 F.4th 1232 (11th Cir. 2023)

The Fourth Circuit aligned itself with a developing post-Dubin consensus distinguishing identity use that constitutes the means of effecting the predicate offense from identity use that is ancillary.

  • United States v. Croft: cited for the facilitation-versus-integral-role distinction in applying § 1028A after Dubin.
  • United States v. Omotayo: especially influential. There, a false invoice bearing another person’s name was a “contingency plan” to smooth bank transfers, but not the “crux” of the defendant’s charged criminal conduct. The McDonald court used Omotayo to emphasize charge-specific analysis: even if identity misuse helps the broader scheme, § 1028A fails if the charged predicate offense can be completed—and is criminal—without that misuse.
  • United States v. Gladden: illustrated the dividing line with two defendants—one whose fraud centered on who received a product (identity central), and another who used accurate identities but lied about medical necessity (identity ancillary). The Fourth Circuit treated Gladden as a practical demonstration of Dubin’s “crux” framework.

4. Trial delay and mistrial: United States v. Dorlouis, 107 F.3d 248 (4th Cir. 1997); United States v. Smith, 44 F.3d 1259 (4th Cir. 1995)

For the mistrial issue, United States v. Dorlouis supplied the highly deferential standard: denial of a mistrial is reversed only in “the most extraordinary of circumstances.” The substantive benchmark was United States v. Smith, where a 32-day mid-trial hiatus due to illness did not require a mistrial because the district court took repeated steps to mitigate prejudice (instructions to keep the case fresh, expanded arguments/instructions, and juror access to notes and exhibits). McDonald’s 37-day maximum gap and 51 days of delays were treated as similar in kind, and the district court’s mitigation steps tracked Smith.

5. Former testimony and “similar motive”: Ward v. AutoZoners, LLC, 958 F.3d 254 (4th Cir. 2020); United States v. Huskey, 90 F.4th 651 (4th Cir. 2024)

The panel recited the standard of review from Ward v. AutoZoners, LLC (de novo interpretation; abuse of discretion application) and relied heavily on United States v. Huskey to affirm exclusion of grand jury testimony under Rule 804(b)(1). Huskey explained that “similar motive” is often absent in grand jury proceedings: prosecutors may not meaningfully challenge exculpatory statements at that stage due to differing objectives and burdens. As in Huskey, the Government here described how it would have “vigorously” cross-examined the witness at trial even though it did not do so before the grand jury.

6. “Opening the door” discretion: United States v. Blake, 571 F.3d 331 (4th Cir. 2009); United States v. Alvarado, 840 F.3d 184 (4th Cir. 2016); United States v. McLaurin, 764 F.3d 372 (4th Cir. 2014); United States v. Jett, 908 F.3d 252 (7th Cir. 2018); United States v. Villegas, 655 F.3d 662 (7th Cir. 2011)

The opinion framed “open door” as a proportionality-and-fairness doctrine. United States v. Blake supplied that the determination is within district-court discretion; United States v. Alvarado provided the abuse-of-discretion definition. United States v. McLaurin illustrated the doctrine’s purpose—correcting a misleading factual impression. The Seventh Circuit’s United States v. Jett and United States v. Villegas were used to articulate proportionality limits: rebuttal must directly respond and not exceed what fairness requires.

7. Supplemental jury instructions and Rule 30 prejudice: In re C.R. Bard, Inc., 810 F.3d 913 (4th Cir. 2016); United States v. Burgess, 691 F.2d 1146 (4th Cir. 1982); United States v. Horton, 921 F.2d 540 (4th Cir. 1990)

On Rule 30, In re C.R. Bard, Inc. provided the standard of review framework. The court noted, via United States v. Burgess, that the Fourth Circuit has not resolved the “far reaching question” whether Rule 30 compels advance notice of supplementary instructions. The operative principle came from United States v. Horton: even if Rule 30 is violated, reversal requires “actual prejudice,” meaning the defendant must show how the lack of notice impaired the ability to craft an informed closing argument.

B. Legal Reasoning

1. The central holding: charge-specific “crux” analysis under § 1028A

The court’s aggravated identity theft analysis is notably charge-specific. It did not ask whether Tran’s identity was important to McDonald’s overall scheme; it asked whether it was at the “crux” of the particular wire fraud charged as the predicate felony (Count 1), i.e., the September 14, 2016 $2 million wire from EDA to TLC.

The panel divided the episode into two “discrete segments”:

  1. Segment one (Count 1 predicate wire fraud): McDonald induced EDA to wire $2 million to TLC by lying that the Virginia Department of Transportation required an escrow transfer.
  2. Segment two (related downstream conduct): McDonald’s dealings with TLC, including the contracts and buyer identity (Curt Tran; Daboyz, LLC), ultimately enabled her to route value to herself (including the resale proceeds).

Under Dubin, only one “crux” can define the predicate offense. For Count 1, the crux was the fraudulent inducement directed to EDA—specifically, the false VDOT escrow narrative. The record contained no evidence that McDonald even invoked Tran’s name to EDA when procuring the wire. The identity misuse thus did not define the core wrong that made the charged wire transfer criminal.

The court also emphasized a functional point: TLC’s wiring process did not require the identity details of the buyer to execute the initial receipt of funds. McDonald had wire instructions and could complete the transfer; TLC had even previously received a wire without knowing its purpose. This undercut any argument that Tran’s identity was integral to effecting the charged wire transfer itself (as opposed to facilitating later phases).

2. “Facilitation” is not enough

The Fourth Circuit acknowledged that Tran’s identity misuse may have “facilitated” the broader scheme—particularly McDonald’s cooperation with TLC and her ability to extract value later. But it treated Dubin as foreclosing § 1028A liability on a mere facilitation theory. The statute, as interpreted, targets cases where identity use is a core instrument of the charged predicate offense.

3. Mistrial denial: mitigation measures and speculative prejudice

Applying United States v. Smith, the court held that extensive delays—while unusual—did not constitute the extraordinary circumstances required by United States v. Dorlouis. The district court mitigated potential prejudice through repeated “keep it fresh” instructions, extended closing argument, access to notes and exhibits, and jury instructions including instructions to disregard the delay. The panel also rejected speculation-based prejudice claims (e.g., juror resentment, assumed guilt), noting the counter-speculation recognized in Smith: the government’s case may fade too.

4. Excluding grand jury testimony: “similar motive” absent under Rule 804(b)(1)

Following United States v. Huskey, the court treated grand jury testimony as a poor substitute for trial testimony where the opposing party did not have a similar motive to develop the witness’s statements. The Government did not undermine the witness before the grand jury but articulated specific impeachment it would have used at trial (including a prior wire fraud conviction and communications suggesting document backdating), and expert evidence that signatures were copied. That difference supported the district court’s “no similar motive” finding.

5. “Open door” rejected: lack of misleading impression and disproportional response

The panel endorsed a narrow “open door” approach: admissible evidence contesting a disputed fact does not automatically “open the door” to otherwise inadmissible hearsay. Here, the FBI agent’s testimony—receipt of the agreement copy from defense counsel and failure to find other copies—did not create a misleading impression requiring Woods’s grand jury narrative as a corrective, and Woods’s testimony was not directly responsive to those points.

6. Supplemental instruction after closing: no showing of actual prejudice

The district court issued a supplemental instruction after defense counsel argued “red flags” from absent government witnesses. The Fourth Circuit did not find reversible Rule 30 error because, under United States v. Horton, the defendant must show actual prejudice—how advance notice would have altered the “tenor or substance” of closing argument. McDonald did not explain what she would have done differently. The court also noted she did not claim the instruction was substantively incorrect.

C. Impact

1. A tighter, count-by-count constraint on § 1028A charging

The most significant consequence is the opinion’s insistence on count-level precision in § 1028A cases. Prosecutors must align the identity misuse with the charged predicate offense’s core deceit, not merely show that identity misuse occurred somewhere in the same overall scheme. Where fraud schemes have phases (inducement, transfer, laundering, resale, concealment), this decision pressures the Government to:

  • select predicate counts whose “crux” actually turns on identity use, or
  • charge predicates that encompass the identity-centered mechanism (if supported by evidence and proper charging theory).

2. Defense strategy: isolating the “crux” and narrowing the predicate

Defendants in complex fraud prosecutions can use this opinion to argue that the Government cannot “bootstrap” ancillary identity use into § 1028A by choosing a predicate count whose core criminality is a different misrepresentation. The practical move is to identify: (a) what exact act constitutes the charged predicate; (b) what misrepresentation makes that act criminal; and (c) whether the identity use is truly the mechanism of that misrepresentation.

3. Trial administration: delays and the sufficiency of mitigation measures

On mistrials for mid-trial interruptions, the opinion reinforces Smith’s framework: long delays are disfavored but not automatically reversible when courts take concrete mitigation steps. District courts in the Fourth Circuit are likely to continue relying on “keep it fresh” instructions, expanded closings, robust final instructions, and access to notes/exhibits as the preferred toolkit.

4. Evidence law: continued skepticism toward Rule 804(b)(1) use of grand jury testimony

The decision, through Huskey, signals that litigants will face an uphill battle admitting grand jury testimony as “former testimony” against the Government. Absent clear proof that the Government had a substantially similar interest and motive to challenge the testimony before the grand jury, exclusion will often stand.

5. Rule 30: prejudice remains the decisive filter

Even without resolving the broader question flagged in Burgess, the court’s approach makes prejudice the controlling practical issue. Parties objecting to post-closing instructions should be prepared to articulate concretely what they would have argued differently and why the instruction meaningfully undermined their strategy.

IV. Complex Concepts Simplified

  • Aggravated identity theft (18 U.S.C. § 1028A): a two-year mandatory consecutive penalty when a person, without lawful authority, uses another person’s identifying information “during and in relation to” certain felonies.
  • “During and in relation to” after Dubin: not satisfied merely because identity use helps the crime. The identity use must be central— at the “crux” of what makes the predicate offense criminal.
  • “Crux”: the core misrepresentation or core illegal act that defines the predicate offense. If the predicate is “you lied about X to cause a transfer,” then identity use about Y that occurs elsewhere in the scheme may not qualify.
  • Judgment of acquittal: a ruling that the evidence is legally insufficient to sustain a conviction on a count, requiring entry of not guilty on that count.
  • Mistrial: termination of a trial without a verdict due to serious error or prejudice; appellate courts defer heavily to district courts.
  • Rule 804(b)(1) “former testimony” and “similar motive”: hearsay exception allowing prior testimony of an unavailable witness only if the opposing party had a similar incentive to examine the witness previously as it would now.
  • “Opening the door”: a fairness doctrine letting otherwise inadmissible evidence in to correct a misleading impression created by the other side; the response must be proportional and directly responsive.
  • Rule 30 (jury instructions timing): generally requires advance notice of instructions before closings, but reversal typically requires showing actual prejudice from lack of notice.

V. Conclusion

United States v. Jennifer McDonald is a consequential Fourth Circuit application of Dubin v. United States that tightens the “during and in relation to” requirement for aggravated identity theft by insisting on a predicate-count-specific “crux” analysis. Even extensive identity misuse within a broader fraud scheme will not sustain § 1028A if the identity use is not central to the particular charged predicate offense’s criminality. The opinion simultaneously reinforces established Fourth Circuit approaches to (1) mistrials following mid-trial delays under United States v. Smith, (2) the limited admissibility of grand jury testimony under Rule 804(b)(1) following United States v. Huskey, and (3) Rule 30 prejudice-based review under United States v. Horton. The net effect is a clearer, narrower path for § 1028A liability—and a reminder that in complex fraud cases, how the Government frames and charges the predicate offense can be outcome-determinative.