Aggravated Identity Theft Must Be “At the Crux”: United States v. King

Introduction

United States v. Eric King, decided by the Sixth Circuit on May 19, 2025, addressed the scope of the federal aggravated‐identity‐theft statute, 18 U.S.C. § 1028A, in light of the Supreme Court’s decision in Dubin v. United States (599 U.S. 110 (2023)). Eric King, a mental‐health specialist, was convicted of health‐care fraud, making false statements, and aggravated identity theft after billing Medicaid for services he never provided. King challenged only the aggravated‐identity‐theft counts on appeal, arguing that under Dubin the indictment, jury instructions, and evidence did not show that the misuse of patient identities was “at the crux” of the underlying fraud.

Summary of the Judgment

The Sixth Circuit unanimously affirmed King’s aggravated‐identity‐theft convictions. The court held:

Dubin’s “at the crux” requirement did not alter Sixth Circuit precedent, which already required the misuse of an identity to facilitate or further the underlying felony in a substantial way.
The district court’s jury instructions correctly stated the elements of aggravated identity theft––including “use” of an identity “during and in relation to” the fraud––and did not require dismissal or correction.
The evidence matched the indictment and the instructions; there was no constructive amendment.
King’s counsel was not constitutionally ineffective under Strickland v. Washington (466 U.S. 668 (1984)) for failing to object to the instructions or indictment.

Analysis

Precedents Cited

Dubin v. United States (599 U.S. 110 (2023)): Held that to “use” another’s identity under § 1028A, the misuse must be “at the crux” of what makes the conduct criminal—more than mere facilitation or a but-for cause.
United States v. O’Lear (90 F.4th 519 (6th Cir. 2024)): Confirmed that Sixth Circuit law already required a strong link between identity misuse and the underlying offense, aligning with Dubin’s rationale.
Strickland v. Washington (466 U.S. 668 (1984)): Established the two‐pronged test for ineffective assistance of counsel—performance deficient and prejudice resulting.
United States v. Pollard (778 F.2d 1177 (6th Cir. 1985)) and United States v. Powell (761 F.2d 1227 (8th Cir. 1985)): Defined what constitutes a “substantial question” warranting release pending appeal.

Legal Reasoning

The Sixth Circuit reasoned that:

Dubin reaffirmed, rather than upended, existing circuit law requiring that misuse of an identity be integral, not tangential, to the underlying felony.
The district court’s preliminary and closing instructions properly explained:
- “Use” means active employment or reference to an identity to facilitate the fraud.
- “During and in relation to” demands that the identity misuse be at the heart of the scheme, not a mere afterthought.
The evidence—falsified progress notes bearing clients’ names and Medicaid IDs—matched the charged conduct; no new theory was introduced at trial.
Objections by counsel to the instructions or indictment would have been meritless; thus, counsel’s performance was objectively reasonable and harmless.

Impact

United States v. King affirms that:

Prosecutors charging aggravated identity theft must allege and prove that the identity misuse is central to the fraud or other predicate felony.
Courts under the Sixth Circuit should continue using jury instructions that define “use” and “during and in relation to” as requiring substantial facilitation rather than mere causation.
Defense counsel need not routinely object to aggravated‐identity‐theft instructions that track established Sixth Circuit formulations, even post‐Dubin.

Complex Concepts Simplified

Constructive Amendment: When evidence or instruction effectively changes the charges from those in the indictment. Not present here, because the case evidence matched the indictment.
“At the Crux” Requirement: Under Dubin, misuse of an identity must be integral to the crime, not just a helpful by–product or remote cause.
Ineffective Assistance of Counsel: A lawyer’s performance must be both objectively unreasonable and prejudicial to the outcome. Mere disagreement with trial strategy does not suffice.
“During and in Relation To”: The identity misuse must have a direct purpose or effect on the commission of the felony.

Conclusion

United States v. King solidifies the Sixth Circuit’s interpretation of 18 U.S.C. § 1028A in line with Dubin: aggravated identity theft requires that the identity misuse be “at the crux” of the underlying felony. The decision confirms that properly tailored jury instructions and indictments survive post‐Dubin scrutiny and underscores that defense counsel will not be deemed ineffective for failing to object to standard circuit‐approved formulations. This ruling provides clarity for prosecutors, defense attorneys, and trial courts navigating aggravated identity theft charges in health‐care and other fraud contexts.