Clarifying the Scope of Aggravated Identity Theft Post-Dubin: United States v. Jason Weigand

Introduction

This commentary examines the Third Circuit’s decision in United States v. Jason C. Weigand, Nos. 23-2159 & 23-2171, handed down on June 2, 2025. The appeal arises from two consolidated criminal matters in the Eastern District of Pennsylvania, where Weigand—a former financial advisor—was convicted on thirty counts, including aggravated identity theft, mail and wire fraud, money laundering, and related offenses. On appeal he challenged three aspects of his conviction and sentence: (1) the validity of aggravated identity theft convictions under Dubin v. United States (2023); (2) the application of a two-level sentencing enhancement for vulnerable victims under U.S.S.G. §3A1.1(b)(1); and (3) the district court’s calculation of actual loss under U.S.S.G. §2B1.1.

Summary of the Judgment

The Third Circuit affirmed in full. First, it held that Dubin did not require vacating Weigand’s aggravated identity theft convictions, because his scheme—opening and controlling a Charles Schwab account in a client’s name without authorization—directly targeted “who” was involved in the fraud. Second, the Court found no clear error in applying a vulnerable-victim enhancement under Zats’s three-part test: the widows’ emotional state post-bereavement made them particularly susceptible, Weigand knew of that vulnerability, and it facilitated the success of his scheme. Third, the appellate court deferred to the district court’s loss finding of $574,508.89, concluding the Government met its prima facie burden and Weigand failed to prove offsets or legitimate services to reduce that figure.

Analysis

1. Precedents Cited

Dubin v. United States (599 U.S. 110, 2023): The Supreme Court narrowed §1028A(a)(1) aggravated identity theft to conduct where misuse of the means of identification is “at the crux of the criminality.” In Dubin, inflating Medicaid claims did not qualify because the fraud concerned “how” services were billed, not “who” received them.
United States v. Michael (6th Cir. 2018): Adopted the “crux” test emphasizing that the identity misuse must be integral to the deception.
United States v. Zats (3d Cir. 2002): Set forth the three-part test for vulnerable-victim enhancement under U.S.S.G. §3A1.1(b)(1), focusing on the victim’s particular susceptibility, the defendant’s knowledge, and the vulnerability’s role in the crime’s success.
United States v. Olano (507 U.S. 725, 1993) and Johnson v. United States (520 U.S. 461, 1997): Governing standards for plain-error review.
United States v. McClure-Potts (3d Cir. 2018) and United States v. Banks (3d Cir. 2022): Addressing burden-shifting and the district court’s duty to make a reasonable loss estimate under U.S.S.G. §2B1.1.

2. Legal Reasoning

A. Aggravated Identity Theft Post-Dubin: Under plain-error review, the Third Circuit asked whether the district court’s jury instruction was erroneous in light of Dubin. It concluded no. Weigand’s conduct—opening a brokerage account in A.R.’s name without authorization and impersonating her in calls and faxes—directly involved “who” was part of the fraud. Unlike in Dubin, the identity misuse was not incidental but essential: the offense could not occur absent misrepresenting A.R.’s identity.

B. Vulnerable-Victim Enhancement: Applying Zats’s three-part test, the court found (1) A.R. and A.H. were emotionally fragile after their husbands’ sudden deaths and lacked financial sophistication; (2) Weigand knew of this vulnerability—he attended the funerals, ingratiated himself as advisor, and discouraged outside oversight; (3) their emotional state facilitated his theft, since both widows relied exclusively on him. Under clear-error review, the court affirmed the two-level enhancement.

C. Loss Calculation: The loss totaled $574,508.89, based on a government analyst’s tracing of misappropriated client funds. Once the Government made a prima facie showing, the burden shifted to Weigand to prove offsets or legitimate services. He failed to tie any payments to bona fide advice or transactions. The Third Circuit upheld the district court’s reasonable estimate under §2B1.1(b)(1).

3. Impact

This decision clarifies that Dubin does not protect defendants whose identity-based deception goes to “who” is committing a fraud rather than to the mechanics of a legitimate service. It also reaffirms the robust application of the vulnerable-victim enhancement and the Government’s prima facie burden in loss calculations. Future defendants will face an uphill battle overturning identity-theft convictions when they impersonate victims as part of their scheme.

Complex Concepts Simplified

Plain-Error Review: An appellate standard when a defendant did not object below. To succeed, one must show an obvious error affecting substantial rights and undermining the trial’s fairness.
“Crux of the Criminality” Test: Under Dubin, aggravated identity theft requires that the identity misuse itself is at the heart of the fraud, not merely incidental to inflating or mischaracterizing a legitimate transaction.
Vulnerable Victim Enhancement (§3A1.1): A two-level increase if the offender knew (or should have known) the victim was unusually easy to victimize (e.g., the elderly, bereaved, mentally impaired), and that susceptibility directly aided the crime.
Loss Calculation (§2B1.1): The district court must estimate victims’ actual losses; once the prosecutor shows a baseline figure, the defendant must demonstrate why that figure is wrong or should be reduced.

Conclusion

United States v. Weigand reaffirms that aggravated identity theft convictions survive Dubin when the fraud depends on impersonating the victim rather than merely misrepresenting the nature of services. It underscores the judiciary’s deference to district courts on vulnerable-victim enhancements and loss calculations when supported by credible evidence. Collectively, these rulings strengthen protections for consumers—especially emotionally vulnerable clients—and clarify prosecutorial and judicial standards for identity-theft prosecutions in the Third Circuit.