SCOTUS: Courts Should Avoid Assigning ‘Breathtaking’ Scope to White-Collar Crime Statutes

“The Supreme Court’s message is unmistakable: Courts should not assign federal criminal statutes a ‘breathtaking’ scope when a narrower reading is reasonable.” See, United States v. Dubin, 27 F.4th 1021, 1041 (5th Cir. 2022) (Costa, J., dissenting). So began the powerful dissent of Judge Gregg Costa, joined by six of his U.S. Court of Appeals for the Fifth Circuit colleagues sitting en banc, which presaged the U.S. Supreme Court’s June 8, 2023, unanimous reversal in Dubin v. United States, 143 S. Ct. 1557 (2023). The dissenters then cited a string of Supreme Court criminal law decisions, many previously discussed by these authors, illustrating that the Court’s delivery of that message was “nearly an annual event,” and observed that not “once this century” has the Court adopted the “government’s broad reading … for a white collar/regulatory criminal statute.” Dubin, 27 F.4th at 1041. In its ruling in Dubin, the Supreme Court forcefully continued the trend recognized by Costa, rejecting the government’s literalist view of 18 U.S.C. Section 1028A(a)(1) that would make virtually every low-level fraud by a healthcare provider into aggravated identify theft subject to a mandatory two-year prison sentence.