Amicus Curiae Brief — David Fox Dubin, Petitioner v. United States

No. 22-10

In the Supreme Court of the United States

DAVID DUBIN, PETITIONER

v.

UNITED STATES

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR PROFESSOR JOEL S. JOHNSON

AS AMICUS CURIAE SUPPORTING PETITIONER

JOEL S. JOHNSON

Counsel of Record

PEPPERDINE UNIVERSITY

CARUSO SCHOOL OF LAW

24255 E. Pacific Coast Hwy,

Malibu, CA 90263

310-506-7531

Joel.Johnson@pepperdine.edu

TABLE OF CONTENTS

Page

Interest of amicus curiae ................................................... 1

Summary of argument ....................................................... 2

Argument ........................................................................... 3

Section 1028A(a)(1) should be narrowly construed to avoid vagueness concerns ............................ 3

A. Vagueness avoidance is distinct from

ordinary constitutional avoidance .................... 4

B. Vagueness avoidance is rooted in

precedent ......................................................... 10

C. Vagueness avoidance requires a narrow

construction of Section 1028(a)(1) .................. 14

Conclusion ........................................................................ 16

TABLE OF AUTHORITIES

Cases:

Bailey v. United States, 516 U.S. 137 (1995) ............. 15

Boos v. Barry, 485 U.S. 312 (1988) .............................. 5

Chapman v. United States, 511 U.S. 513 (1994) ......... 4

City of Chicago v. Morales, 527 U.S. 41 (1999) ............ 5

Clark v. Martinez, 543 U.S. 371 (2005)........................ 7

Cline v. Frink Dairy Co., 274 U.S. 445 (1927) ............. 5

Connally v. General Construction Co.,

269 U.S. 385 (1926) ................................................ 5

Coates v. City of Cincinnati, 402 U.S. 611 (1971) ........ 5

Cramp v. Board of Public Instruction of Orange

County, 368 U.S. 278 (1961) ................................... 5

Davis v. United States, 139 S. Ct. 2319 (2019) ...... 4, 15

Edwards v. South Carolina, 372 U.S. 229 (1963)........ 5

Gentile v. Nevada, 501 U.S. 1030 (1991) ..................... 5

Giaccio v. Pennsylvania, 382 U.S. 399 (1966).............. 5

Herndon v. Lowry, 301 U.S. 242 (1936) ....................... 5

(I)

II

Page

Cases—continued:

Hynes v. Mayor & Council of Borough of Oradell,

425 U.S. 610 (1976) ................................................ 5

Johnson v. Artega-Martinez, 142 S. Ct. 1827 (2022) ... 7

Johnson v. United States, 576 U.S. 591 (2015)............ 4

Jones v. Thomas, 491 U.S. 376 (1989) ......................... 8

Kelly v. United States, 140 S. Ct. 1566 (2020) ........... 13

Kolender v. Lawson, 461 U.S. 352 (1983) .................... 5

Lanzetta v. New Jersey, 306 U.S. 451 (1939) ............... 5

Leocal v. Ashcroft, 543 U.S. 1 (2004) ......................... 16

McDonnell v. United States, 136 S. Ct. 2355 (2016) .. 13

McNally v. United States, 483 U.S. 350 (1987) ......... 12

Muscarello v. United States, 524 U.S. 125 (1998) ..... 13

Nielsen v. Preap, 139 S. Ct. 954 (2019) ........................ 7

Papachristou v. City of Jacksonville,

405 U.S. 156 (1972) ................................................ 5

Parker v. Levy, 417 U.S. 733 (1974) ............................. 5

Posters ‘n’ Things, Ltd. v. United States,

511 U.S. 513 (1994) ................................................ 4

Ruan v. United States, 142 S. Ct. 2370 (2022) .......... 12

Scales v. United States, 367 U.S. 203 (1961) ............... 5

Screws v. United States, 325 U.S. 91 (1945) .............. 11

Skilling v. United States, 561 U.S. 358 (2010) ... passim

Smith v. United States, 431 U.S. 291 (1977) .............. 5

Smith v. United States, 508 U.S. 223 (1993) ............. 15

Staples v. United States, 511 U.S. 610 (1994) ........... 13

Stromberg v. California, 283 U.S. 359 (1931).............. 5

United States v. Harriss, 347 U.S. 612 (1954) ............. 5

United States v. Palomar-Santiago,

141 S. Ct. 1615 (2021)............................................. 7

United States v. Vuitch, 402 U.S. 62 (1961)................. 5

United States v. Williams, 553 U.S. 285 (2008)........... 4

Van Buren v. United States, 141 S. Ct. 1648 (2021) .. 13

Winters v. New York, 333 U.S. 507 (1948) ................... 5

Wooden v. United States, 142 S. Ct. 1063 (2022) ......... 9

Wright v. Georgia, 373 U.S. 284 (1963) ....................... 5

Yates v. United States, 574 U.S. 528 (2015)............... 13

III

Page

Statutes:

18 U.S.C. 1028A ..................................................passim

Identity Theft Penalty Enhancement Act of 2004,

Pub. L. No. 108-275, 118 Stat. 831....................... 15

Miscellaneous:

Amy Coney Barrett, Substantive Canons and

Faithful Agency, 90 B.U. L. Rev. 109 (2010) .... 9, 10

William Baude & Stephen Sachs, The Law of

Interpretation, 130 Harv. L. Rev. 1079 (2017) ....... 6

John Calvin Jeffries, Jr., Legality, Vagueness, and

the Construction of Penal Statutes,

71 Va. L. Rev. 189 (1985)........................................ 9

Joel S. Johnson, Vagueness and Federal-State

Relations, 90 U. Chi. L. Rev. (2023)

(forthcoming) <tinyurl.com/vaguenessFS> ........ 1, 4

Joel S. Johnson, Vagueness Avoidance

(Dec. 22, 2022 draft)

<tinyurl.com/vaguenessavoidance> .............. passim

Brett M. Kavanaugh, Fixing Statutory

Interpretation, 129 Harv. L. Rev. 2118 (2016) ....... 9

Caleb Nelson, Avoiding Constitutional Questions

Versus Avoiding Unconstitutionality,

128 Harv. L. Rev. F. 331 (2015) ......................... 7, 8

Lawrence M. Solan, The Language of Statutes:

Laws and Their Interpretation (2010) ............. 6, 15

Lawrence B. Solum, The InterpretationConstruction Distinction,

27 Const. Comment. 95 (2010) ............................... 6

In the Supreme Court of the United States

No. 22-10

DAVID DUBIN, PETITIONER

v.

UNITED STATES

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF OF PROFESSOR JOEL S. JOHNSON

AS AMICUS CURIAE SUPPORTING PETITIONER

INTEREST OF AMICUS CURIAE

Joel S. Johnson is an Associate Professor of Law at

the Pepperdine Caruso School of Law. The interest of

amicus curiae is the sound construction of federal penal statutes. This brief draws on amicus’s articles,

Vagueness and Federal-State Relations, 90 U. Chi. L.

Rev. (2023) (forthcoming) <tinyurl.com/vaguenessFS>

(Federal-State), and Vagueness Avoidance (Dec.

22, 2022 draft), <tinyurl.com/vaguenessavoidance>

(Vagueness Avoidance). 1

1 No counsel for a party authored this brief in whole or in part.

Nor did any person or entity, other than amicus and Pepperdine

Caruso School of Law, financially contribute to preparing or submitting this brief. All parties have consented to this filing.

(1)

2

SUMMARY OF ARGUMENT

Amicus agrees with petitioner that the court of appeals adopted an overly broad and indeterminate construction of Section 1028A(a)(1) of the Identity Theft

Penalty Enhancement Act. Amicus submits this brief

to highlight the central role that concerns about unconstitutional vagueness should play in this Court’s

analysis of Section 1028A(a)(1). The Court should recognize the avoidance of vagueness concerns as a rule

of construction that frames its reading of indeterminate language in penal statutes.

Vague and indeterminate language undermines

due process and the separation of powers by effectively delegating the legislative task of defining criminal conduct. Yet such language in a federal penal

statute can almost always be narrowly construed to

avoid those constitutional concerns.

Vagueness avoidance is distinct from ordinary constitutional avoidance. The difference arises from the

distinction between ambiguity and vagueness. Ordinary constitutional avoidance canons are tools of interpretation triggered by ambiguity—which arises

when a term can be fairly understood to have two or

more discrete semantic meanings. Vagueness, by contrast, refers to indeterminate language that is open to

practically innumerable possible applications and

cannot be resolved through mere interpretation; construction is required to give the term legal effect. Engaging in vagueness avoidance entails crafting a narrow construction of the text that encompasses an identifiable core while excising its indeterminate peripheries. Doing so promotes the separation of powers, the

principle of legality, and the modern methodological

commitment to implementing the legislative will.

3

Vagueness avoidance is deeply rooted in this

Court’s precedents. But the Court has recently retreated from using it as a tool of construction. That

trend appears to be based on an erroneous conflation

of vagueness avoidance and ordinary constitutional

avoidance. The Court should restore its traditional

practice of applying vagueness avoidance as a distinct

tool of construction.

Taking that approach makes this an easy case.

The literal semantic meaning of the term “uses” in

Section 1028A(a)(1) presents vagueness concerns because it is open to practically innumerable applications. To avoid those concerns, the statute should be

construed to restrict its application to an identifiable

core—the nonconsensual use of another’s identity as

an instrumental part of committing a predicate

crime—while excising its indeterminate peripheries.

ARGUMENT

SECTION 1028A(A)(1) SHOULD BE NARROWLY CONSTRUED TO AVOID VAGUENESS CONCERNS

Section 1028A(a)(1) of the Identity Theft Penalty

Enhancement Act increases the penalty for anyone

who, “during and in relation to” the commission of an

enumerated predicate felony, “knowingly transfers,

possesses, or uses, without a lawful authority, a

means of identification of another person.” 18 U.S.C.

1028A(a)(1). The court of appeals broadly construed

the indeterminate term “uses” in that statute to encompass any person who recites someone else’s name

while committing a predicate crime, regardless

whether the person has authority to use the other person’s name or whether that use was instrumental to

the commission of the predicate crime.

4

While amicus generally agrees with petitioner that

the court of appeals erred in adopting that reading,

amicus submits this brief to highlight the central role

that concerns about unconstitutional vagueness

should play in this Court’s construction of Section

1028A(a)(1). The Court should recognize the avoidance of vagueness concerns as a robust rule of construction that frames its reading of indeterminate language in penal statutes.

A. Vagueness Avoidance Is Distinct From Ordinary

Constitutional Avoidance

1. Vague language in a federal penal statute presents constitutional concerns because it does not sufficiently define the standard of conduct. Johnson v.

United States, 576 U.S. 591, 595 (2015). That undermines due process and the separation of powers by effectively delegating the legislative task of crime definition, thereby inviting arbitrary enforcement and

failing to provide adequate notice. Davis v. United

States, 139 S. Ct. 2319, 2325 (2019).

Yet, in virtually all cases involving a federal penal

statute, this Court does not deem indeterminate statutory language unconstitutionally vague. Rather, the

Court engages in vagueness avoidance—i.e., “narrowly constru[ing] the indefinite law to avoid any constitutional vagueness concerns.” Federal-State 29; see

Skilling v. United States, 561 U.S. 358, 405 (2010) (“It

has long been our practice, * * * before striking a

federal statute as impermissibly vague to consider

whether the prescription is amenable to a limiting

construction.”); see, e.g., United States v. Williams,

553 U.S. 285, 306-307 (2008); Posters ‘n’ Things, Ltd.

v. United States, 511 U.S. 513, 525-526 (1994); Chapman v. United States, 500 U.S. 453, 467-468 (1991);

5

Boos v. Barry, 485 U.S. 312, 329-332 (1988); Smith v.

United States, 431 U.S. 291, 308-309 (1977); Parker v.

Levy, 417 U.S. 733, 754-757 (1974); United States v.

Vuitch, 402 U.S. 62, 71-72 (1971); Scales v. United

States, 367 U.S. 203, 223 (1961); United States v. Harriss, 347 U.S. 612, 620-624 (1954). 2

2. That approach—vagueness avoidance—is distinct from ordinary constitutional avoidance. The difference owes in large part to the distinct concepts of

ambiguity and vagueness and their relation to an important legal-process distinction between interpretation and construction.

a. Ambiguity refers to linguistic indeterminacy

that arises when a term “can be used in more than one

sense such that it is open to a ‘discrete number of pos-

2 When faced with vague language in state laws, by contrast,

this Court has often held those laws void for vagueness, because

the Court’s analysis is “constrained by a distinctive federalism

principle” requiring it to adhere to “any pre-existing state-court

constructions of [the] indefinite statutory language.” FederalState 6; see id. at 43-52; see, e.g., City of Chicago v. Morales, 527

U.S. 41, 61 (1999); Gentile v. Nevada, 501 U.S. 1030, 1048-1049

(1991); Kolender v. Lawson, 461 U.S. 352, 355-358 (1983); Hynes

v. Mayor & Council of Borough of Oradell, 425 U.S. 610, 621-623

& n.6 (1976); Papachristou v. City of Jacksonville, 405 U.S. 156,

157 & n.2, 163 (1972); Coates v. City of Cincinnati, 402 U.S. 611,

612-614 (1971); Giaccio v. Pennsylvania, 382 U.S. 399, 403-404

(1966); Wright v. Georgia, 373 U.S. 284, 293 (1963); Edwards v.

South Carolina, 372 U.S. 229, 234, 237-238 (1963); Cramp v.

Board of Public Instruction of Orange County, 368 U.S. 278, 285288 (1961); Winters v. New York, 333 U.S. 507, 518-520 (1948);

Lanzetta v. New Jersey, 306 U.S. 451, 457-458 (1939); Herndon

v. Lowry, 301 U.S. 242, 261-263 (1936); Stromberg v. California,

283 U.S. 359, 369-370 (1931); Cline v. Frink Dairy Co., 274 U.S.

445, 457, 465 (1927); Connally v. General Construction Co., 269

U.S. 385, 393-395 (1926).

6

sible meanings.’ ” Vagueness Avoidance 12-13 (quoting Lawrence M. Solan, The Language of Statutes:

Laws and Their Interpretation 38-39 (2010)). Ambiguity can typically be resolved through interpretation,

the process of recovering the “semantic content of the

legal text,” Lawrence B. Solum, The InterpretationConstruction Distinction, 27 Const. Comment. 95, 96

(2010), by looking to materials such as “statutory context, rules of grammar, dictionaries, and usage norms

embodied in descriptive canons of statutory interpretation,” Vagueness Avoidance 19-20.

A term exhibits vagueness, by contrast, when

“there are difficult, borderline cases to which the term

may or may not apply, with the result that it is open

to practically ‘innumerable’ * * * applications.”

Vagueness Avoidance 13-14 (quoting Solan 38-39).

Vagueness cannot usually be resolved through interpretation, but only through “construction,” the process

of “giv[ing] a text legal effect * * * [b]y translating

the linguistic meaning into legal doctrine.” Solum 96;

see Vagueness Avoidance 20 (“Vagueness * * * [is]

typically irreducible at the interpretation stage” because “[e]vidence of linguistic meaning does not dictate how a court should define the [term’s] scope.”).

To be sure, lawyers and judges routinely use the

term “interpretation” to refer both to the process of interpretation and to the process of construction. William Baude & Stephen Sachs, The Law of Interpretation, 130 Harv. L. Rev. 1079, 1085-1086 (2017). And

doing so is typically inconsequential because “the inferential step from ascribed meaning to legal effect is

usually uncontroversial.” Id. at 1086. But when the

relationship between semantic meaning and legal effect is particularly complex—as with vague statutory

7

language—“adherence to the interpretation-construction distinction clarifies the analysis.” Vagueness

Avoidance 19.

b. In light of that distinction, the ordinary constitutional avoidance canons 3 do not capture what occurs

when a court engages in vagueness avoidance. A distinct conception of vagueness avoidance is warranted.

Importantly, ordinary canons of constitutional

avoidance are triggered by ambiguity: the Court will

not consider applying them unless the statutory language can be fairly understood to have two or more

discrete semantic meanings, one of which is unconstitutional or at least raises serious constitutional questions. See, e.g., Johnson v. Artega-Martinez, 142 S. Ct.

1827, 1833 (2022); United States v. Palomar-Santiago,

141 S. Ct. 1615, 1622 (2021); Nielsen v. Preap, 139 S.

Ct. 954, 972 (2019); see also Clark v. Martinez, 543

U.S. 371, 395 (2005) (Thomas, J., dissenting) (observing that “traditional avoidance” applies to “ambiguous” statutory language). Ordinary constitutional

avoidance thus “functions as a means of choosing between” available alternatives, Clark, 543 U.S. at 385

(emphasis omitted), which can often be applied at the

interpretation stage to aid in determining semantic

meaning. See Vagueness Avoidance 24-26.

Vagueness avoidance, by contrast, is not triggered

by ambiguity—but by vague statutory language that

cannot be resolved through mere interpretation. It is

thus a tool of construction by which the Court crafts a

3 The ordinary constitutional avoidance canons are the classi-

cal “unconstitutionality” canon and the more modern “constitutional questions” canon. Caleb Nelson, Avoiding Constitutional

Questions Versus Avoiding Unconstitutionality, 128 Harv. L.

Rev. F. 331, 331-333 (2015); see Vagueness Avoidance 23-25.

8

supplemental rule that limits the legal effect of a text

that conveys a semantic meaning that is irreducibly

indeterminate. By engaging in vagueness avoidance,

the Court can usually remove the delegation threat

posed by such language while also constraining its

reach. Because most vague statutory terms have

some identifiable core, the Court may legitimately

craft a judicial construction of the text that encompasses that core while excising its indeterminate peripheries. Vagueness Avoidance 29-30, 33, 55.

3. Treating vagueness avoidance as a distinct tool

of statutory construction promotes the separation of

powers, the principle of legality, and the modern

methodological commitment to implementing the legislative will through statutory construction.

a. When the Court engages in vagueness avoidance, it does not offend the principle requiring the legislature to define crime and fix punishments, Jones v.

Thomas, 491 U.S. 376, 381 (1989), because the narrowing construction hews to the identifiable core

within the semantic meaning of the vague term enacted by the legislature. In such circumstances, the

act of constraining the legal effect of the vague term

often functions as a form of severance—the Court declines to apply the statute to the case before it while

simultaneously recognizing that some portion of the

statute remains in force and is constitutionally valid.

Vagueness Avoidance 30-31. 4

b. Engaging in vagueness avoidance also promotes the principle of legality, which guards against

Functional equivalence to severability is another way in

which vagueness avoidance is distinct from ordinary constitutional avoidance. Vagueness Avoidance 31.

4

9

“retroactive” crime definition through “judicial innovation.” John Calvin Jeffries, Jr., Legality, Vagueness, and the Construction of Penal Statutes, 71 Va. L.

Rev. 189, 196 (1985). Those whose conduct falls

within the identifiable core have no claim that they

lacked notice, and those whose conduct falls outside it

will not be subject to punishment under the narrowly

construed statute. Vagueness Avoidance 29, 30.

c. Finally, vagueness avoidance comports with

“faithful agency,” the modern methodological commitment to implementing legislative will through judicial

construction. See Amy Coney Barrett, Substantive

Canons and Faithful Agency, 90 B.U. L. Rev. 109, 112

(2010) (referring to the faithful-agent theory as the

“conventional” approach). That is largely because

vagueness avoidance is not a substantive canon triggered by ambiguity—a type of indeterminacy that can

usually be resolved through descriptive tools that recover semantic meaning. See pp. 5-6, supra.

Members of this Court have expressed misgivings

about heavy reliance on ambiguity-triggered substantive canons. One criticism centers on the manipulability of such canons. See Wooden v. United States,

142 S. Ct. 1063, 1075-1076 (2022) (Kavanaugh, J.,

concurring in the judgment); Brett M. Kavanaugh,

Fixing Statutory Interpretation, 129 Harv. L. Rev.

2118, 2136-2139 (2016). But vagueness avoidance is

not prone to the same degree of outcome-driven manipulation, because a vagueness trigger typically

yields less discretion than does an ambiguity trigger.

A court that has deemed statutory text ambiguous unlocks two or more possible interpretations that need

not overlap—giving the judge significant discretion to

choose one over another. A court that has deemed

statutory language vague opens a range of possible

10

constructions; yet wherever the line is drawn within

that range, roughly the same core will be retained.

The choice is between relatively marginal differences

among borderline cases rather than wholesale differences in meaning. Vagueness Avoidance 59-60.

Nor does the charge that substantive canons erroneously set “something other than the legislative will

as [the] interpretive lodestar,” Barrett 110, extend to

vagueness avoidance. Because it is “[c]onstitutionally

inspired,” vagueness avoidance “promot[es]” a “set of

norms that have been sanctioned by a super-majority

as higher law.” Id. at 168. In addition, Congress’s use

of vague statutory language that cannot be resolved

through ordinary tools of interpretation, see p. 6, supra, conveys the legislative will to “delegat[ing] resolution” of that indeterminacy “to the courts.” Cf. Barrett 123 (applying same logic to irreducible ambiguity). Insofar as the vague language has an identifiable

core, a court may legitimately craft a judicial construction that retains that core—which reflects legislative

will—while excising the indefinte penumbra. Vagueness Avoidance 59.

B. Vagueness Avoidance Is Rooted In Precedent

Vagueness avoidance is deeply rooted in this

Court’s precedents. Recently, however, the Court has

retreated from explicitly engaging in vagueness avoidance as a tool of construction. That trend appears to

be based on an erroneous conflation of vagueness

avoidance and ordinary constitutional avoidance triggered by ambiguity. The Court should restore its traditional practice of treating vagueness avoidance as a

distinct tool of construction.

11

1. This Court has a long history of explicitly engaging in vagueness avoidance to narrow excessively

broad and indeterminate language in federal penal

statutes. See pp. 4-5, supra (collecting cases).

a. An early example is Screws v. United States,

325 U.S. 91 (1945), which involved a federal criminal

statute that punished any person who “under color of

any law * * * willfully subjects” anyone “to the

deprivation of any rights * * * secured or protected

by the Constitution.” Id. at 93 (Douglas, J., plurality).

The literal semantic meaning of that language “provide[d] no ascertainable standard of guilt,” but instead “referred the citizen to a comprehensive law library in order to ascertain what acts were prohibited.”

Id. at 95, 96 (Douglas, J., plurality).

To avoid that vagueness concern, the Court narrowly construed the statute to apply only to violations

of constitutional rights clearly established at the time

of the defendant’s conduct. Justice Douglas justified

that construction for a plurality of the Court by focusing on the statutory term “willfully,” reasoning that

the “requirement of a specific intent to deprive a person of a federal right made definite by a decision or

other rule of law save[d] the Act from any charge of

unconstitutionality on the grounds of vagueness.”

Screws, 325 U.S. at 103.

In other words, once a judicial decision had established a specific type of conduct as violative of the Constitution, a standard of conduct was ascertainable and

could be willfully violated. In effect, that narrowing

construction limited the statute’s application to its

identifiable core—clearly established rights—while

effectively severing the statute’s vague peripheries.

Vagueness Avoidance 44.

12

b. More recently, the Court engaged in explicit

vagueness avoidance in Skilling, supra, a case concerning the honest-services statute enacted to resurrect a lower-court body of law that had been rejected

in McNally v. United States, 483 U.S. 350 (1987).

In Skilling, the Court recognized the “force” of the

argument that the honest-services statute was unconstitutionally vague. 561 U.S. at 405. Although the

pre-McNally lower-court decisions had consistently

applied to bribery or kickback schemes, the Court explained, “there was considerable disarray over the

statute’s application to conduct outside that core category.” Ibid. To save the statute, the Court “pare[d]”

it “down” to “only the bribe-and-kickback core of preMcNally case law.” Id. at 404, 408-409.

That narrowing construction effectively severed

the vague penumbra of the honest-services statute

while maintaining its core. Yet, unlike in Screws, the

statutory text provided no basis for drawing that corepenumbra distinction. Instead, the Court in Skilling

drew that distinction on the basis of pre-McNally case

law, which Congress had plainly attempted to reinstate. Id. at 405; see id. at 423 (Scalia, J., concurring

in part and concurring in the judgment).

Skilling thus suggests that the core of indefinite

statutory language can sometimes be identified even

without textual clues. Vagueness Avoidance 46.

2. In a recent series of cases, however, the Court

has retreated from explicitly engaging in vagueness

avoidance. In these cases, a narrowing construction

is still ultimately adopted. But the Court purports to

justify that result using mere interpretation that determines semantic meaning, rather than relying on

vagueness avoidance as an integral tool of judicial

construction. See, e.g., Ruan v. United States, 142 S.

13

Ct. 2370, 2377-2380 (2022); Van Buren v. United

States, 141 S. Ct. 1648, 1665 (2021); Kelly v. United

States, 140 S. Ct. 1566, 1571-1574 (2020); McDonnell

v. United States, 136 S. Ct. 2355, 23670-2372 (2016);

Yates v. United States, 574 U.S. 528, 540 (2015) (plurality opinion); see also Vagueness Avoidance 46-52.

That trend gets vagueness avoidance wrong by

treating it as indistinguishable from ordinary constitutional avoidance, a tool for resolving ambiguity. See

p. 7, supra. The upshot is to give vagueness concerns

a significantly diminished role—tacked on as an extra

justification for an already-adopted reading, e.g.,

McDonnell, 136 S. Ct. at 2372, relegated to dicta, e.g.,

Van Buren, 141 S. Ct. at 1661, or not even mentioned

at all, e.g., Yates, 574 U.S. at 539-549 (plurality opinion). Each of those outcomes makes vagueness avoidance virtually useless as an analytical matter, rendering it much like the modern form of the rule of lenity

that is used only to resolve “grievous ambiguity” after

all other tools have been exhausted. Muscarello v.

United States, 524 U.S. 125, 139 (1998) (quoting Staples v. United States, 511 U.S. 610, 619 n.17 (1994)).

The practical effect is that these recent decisions

rejecting exceedingly broad readings of federal penal

statutes do not deter lower courts from adopting similarly broad constructions of other statutes. Each decision is essentially ad hoc, providing no broadly applicable principles of construction. That emboldens

prosecutors to continue exploiting indeterminate language in the federal criminal code to “attach criminal

penalties to a breathtaking amount of commonplace”

conduct. Van Buren, 141 S. Ct. at 1661; see Vagueness

Avoidance 55 (observing that “[t]he Justice Department generally advocates for broad readings of indeterminate federal criminal laws, often with the

14

[empty] promise not to abuse those laws through unexpected enforcements”). And some lower courts—including the court of appeals in this case—justify those

broad applications at the interpretation stage based

on “plain meaning” analysis of the statute’s literal

text, Pet. App. 67a, without meaningful consideration

of whether a plain meaning that is open-ended might

pose vagueness concerns. Splits as to the scope of federal statutes thus routinely emerge from the courts of

appeals, with the result that this Court’s correction of

broad lower-court readings of criminal statutes “has

become nearly an annual event.” Pet. App. 48a

(Costa, J., dissenting); see Vagueness Avoidance 53.

*

*

*

*

*

The Court should correct course by disentangling

vagueness avoidance from ordinary constitutional

avoidance. It should return to the approach reflected

in Screws and Skilling, explicitly treating vagueness

avoidance as central to arriving at a narrowing construction. When using vagueness avoidance as a rule

of construction, the Court should expressly distinguish the vague term’s identifiable core from its indefinite peripheries, relying on clues from the text or

other sources, such as statutory history or precedent.

Once the Court has ascertained the core, it should be

explicit about severing the indeterminate peripheries.

See Vagueness Avoidance 54-55.

C. Vagueness Avoidance Requires A Narrow Construction Of Section 1028A(a)(1)

Employing vagueness avoidance as a guiding rule

of construction makes this an easy case.

The plain text of Section 1028A(a)(1) applies to anyone who, “during and in relation to” the commission

15

of an enumerated predicate felony, “knowingly transfers, possess, or uses, without a lawful authority, a

means of identification of another person.” 18 U.S.C.

1028A(a)(1) (emphasis added). The literal semantic

meaning of the term “uses” presents vagueness concerns, because “it is open to practically ‘innumerable’

* * * applications.” Vagueness Avoidance 13 (quoting Solan 38-39); see Bailey v. United States, 516 U.S.

137, 143 (1995) (“[T]he word ‘use’ poses some interpretational difficulties[.]”); Smith v. United States, 508

U.S. 223, 241-242 (1993) (Scalia, J., dissenting) (characterizing the word “use” as “elastic”); see also Pet. Br.

3, 32-34 (noting how a “sweeping” understanding of

Section 1028A(a)(1) would ensnare a wide swath of individuals applying for bank loans, preparing taxes, or

engaging in electronic communication).

That threatens due process and the separation of

powers by effectively delegating the legislative task of

defining what conduct triggers the statute to prosecutors, with the effect of inviting arbitrary enforcement

and failing to provide adequate notice. Davis, 139 S.

Ct. at 2325; see Pet. Br. 38 (noting that the broad construction would effectively “give prosecutors the ability to bring an aggravated identity theft charge[]

every time a defendant commits [a] predicate offense[]”). To avoid those vagueness concerns, the irreducible indeterminacy inherent in the semantic meaning of the term “uses” should be construed in a way

that restricts the statute’s application to its identifiable core while excising its indefinite peripheries.

Identifying that core is straightforward. Congress

enacted Section 1028A as part of the Identity Theft

Penalty Enhancement Act, Pub. L. No. 108-275, 118

Stat. 831 (2004), and gave Section 1028A the title “Aggravated identity theft.” Those labels clearly convey

16

a goal of increasing punishment when the unconsented use of another’s identity was instrumental to

the commission of a predicate crime. See Leocal v.

Ashcroft, 543 U.S. 1, 11 (2004) (making clear that titles of penal statutes shed light on their scope); cf.

Skilling, 561 U.S. at 404, 408-409 (identifying statute’s core by looking to statutory history).

That clearly identifiable legislative goal should be

understood to establish the core of the term “uses” in

Section 1028A(a)(1). The Court should employ vagueness avoidance to adopt a narrow construction of the

term that captures only that core—the nonconsensual

use of another’s identity as an instrumental part of

committing a predicate crime—while excising its indeterminate peripheries, thereby removing petitioner

from the statute’s compass.

CONCLUSION

The judgment of the court of appeals should be reversed.

Respectfully submitted.

JOEL S. JOHNSON

Counsel of Record

PEPPERDINE UNIVERSITY

CARUSO SCHOOL OF LAW

24255 E. Pacific Coast Hwy,

Malibu, CA 90263

310-506-7531

Joel.Johnson@pepperdine.edu

DECEMBER 2022