Key-Role “Crux” Requirement for Aggravated Identity Theft Under 18 U.S.C. § 1028A

Introduction

United States v. Omotayo (2d Cir. Mar. 20, 2025) concerns an international wire-fraud and money‐laundering conspiracy in which Temitope Omotayo served as a “Connect,” arranging for the flow and division of illicit funds through U.S. bank accounts. After his co-conspirators tricked companies into wiring millions of dollars to those accounts, Omotayo was charged and convicted not only of conspiracy to commit wire fraud and money laundering, but also of “aggravated identity theft” under 18 U.S.C. § 1028A. The sole dispute on appeal was whether Omotayo’s possession and transfer of a counterfeit invoice bearing a real employee’s name qualified as aggravated identity theft when the identity document was never actually shown to any bank or victim.

Summary of the Judgment

The Second Circuit reversed Omotayo’s aggravated-identity-theft conviction and remanded with instructions to enter an acquittal on that count. Two independent flaws doomed the conviction:

1. Erroneous jury instruction: The district court told jurors they could convict if the identity document merely had “a purpose, role, or effect” in the conspiracy. This standard is too broad under the Supreme Court’s intervening decision in Dubin v. United States, which holds that § 1028A applies only when identity misuse is “at the crux” of the underlying predicate offense.
2. Insufficient evidence even under the correct standard: No reasonable jury could find that Omotayo’s backup invoices—never shown to banks and bearing the name of an unsuspecting JSS Medical Research employee—were a “key mover” in the conspiracy rather than a mere contingency plan.

Analysis

Precedents Cited

• Dubin v. United States, 599 U.S. 110 (2023): Established that aggravated identity theft under 18 U.S.C. § 1028A applies only when the wrongful use, transfer, or possession of another’s identifying information is “at the crux” of the underlying crime—i.e., a “key mover” of the fraud or deceit, not just an ancillary facilitator.
• Henderson v. United States, 568 U.S. 266 (2013): A subsequent change in law—such as Dubin—can render a previously correct instruction “plain error” even if it was accepted at the time of trial.
• United States v. Wedd, 993 F.3d 104 (2d Cir. 2021): Held that “use” of a means of identification must “further or facilitate the fraud”—a standard that, while narrower than the “any purpose, role or effect” approach, is still broader than the “at the crux” test of Dubin.

Legal Reasoning

Section 1028A enhances certain felony convictions (including wire fraud) by adding a mandatory consecutive two-year sentence when a defendant “knowingly transfers, possesses, or uses” another’s identifying information “during and in relation to” the predicate offense. Dubin reined in earlier broad readings by emphasizing three rules:

• Narrow “identity‐theft” focus: “Identity theft” connotes the fraudulent appropriation of identifying information, not mere routine overbilling.
• “At the crux” requirement: The identity misuse must play a central, indispensable role in making the underlying scheme criminal.
• Verb distinctions: “Possess” and “transfer” connote theft and misappropriation steps, while “use” connotes deception about identity.

In Omotayo’s case, the jury was never asked to find that the invoice bearing JSS employee “Yulia Roytman” was integral to the success of the conspiracy. Instead, jurors convicted based on the flawed instruction that any “purpose, role, or effect” sufficed. Under Dubin, the image of Roytman’s name on a backup invoice—never shown to any bank or victim—cannot satisfy the “at the crux” test.

Impact on Future Cases

• Charging decisions: Prosecutors must now evaluate whether identity-theft enhancements are reserved for schemes in which identity misuse is truly indispensable to the fraud or deceit.
• Jury instructions: Courts must adopt the “at the crux” language when defining the § 1028A “in relation to” element; any broader “purpose, role or effect” test is reversible error.
• Uniform application: The Second Circuit’s alignment with Dubin resolves a prior circuit split over how “use,” “possess,” and “transfer” are interpreted in identity-theft cases.

Complex Concepts Simplified

• Aggravated identity theft (18 U.S.C. § 1028A): A federal enhancement that adds a mandatory two-year consecutive sentence when a defendant unlawfully “uses, transfers, or possesses” someone else’s identifying information in connection with certain felonies (e.g., wire fraud).
• Means of identification: “Any name or number that may be used, alone or in conjunction with any other information, to identify a specific individual,” such as a real person’s name on an invoice.
• “At the crux” requirement: The identity misuse must be a “key mover” of the wrongdoing, driving the fraud or deceit; mere backup documents or optional facilitation do not qualify.
• Plain error review: When a legal rule changes after trial, an unobjected-to jury instruction is “plainly” erroneous if it conflicts with current law and affects a defendant’s substantial rights.

Conclusion

United States v. Omotayo reinforces that the aggravated identity-theft enhancement of 18 U.S.C. § 1028A must be applied only where the defendant’s misuse of another person’s identification is central to the crime, not a peripheral or precautionary measure. By rejecting the “any purpose, role or effect” instruction and demanding proof that identity theft was “at the crux” of the fraud, this decision ensures that the two-year enhancement remains reserved for truly aggravated forms of identity-theft wrongdoing.