Gorsuch, J., concurring in judgment
for filet mignon using an electronic payment method” has not committed aggravated identity theft. Ante, at 1, 11. Why not, exactly? In one sense, the “means of identification” (the credit card) lies “at the crux” of the fraud. The restaurant uses it to charge the customer for a product it never supplied. Maybe that feels less distasteful than a scenario in which an overseas hacker steals an individual’s credit card information and deploys it to order luxury goods on Amazon. But the Constitution’s promise of due process means that criminal statutes must provide rules “knowable in advance,” not intuitions discoverable only after a prosecutor has issued an indictment and a judge offers an opinion. Percoco v. United States, 598 U. S. ___, ___ (2023) (Gorsuch, J., concurring in judgment) (slip op., at 6).
Not yet convinced? Consider some tweaks to the Court’s hypothetical. Suppose that, instead of misrepresenting the cut of its steaks, a restaurant charged a customer for an appetizer he ordered that never arrived. What about an appetizer he never ordered? An additional entrée? Three? Three plus a $5,000 bottle of Moët? How about a Boeing 737? Now suppose the restaurant ran the customer’s credit card for the same steak twice. What if it waited an hour to do so? A day? A year? What if the waiter gave the credit card information to a different employee at the same restaurant to run the charge? A different employee at a different restaurant? What if the restaurant sold the customer’s credit card information on the dark web, and another restaurant ran the card for filet mignon? On the Court’s telling, the “crux” of the fraud in some of these examples lies merely in “how and when services were provided,” while in others the “crux” involves “who received the services.” Ante, at 20. But how to tell which is which?
The Court’s “crux” test seemingly offers no sure way through this “blizzard of … hypotheticals.” Ibid., n. 10. Nor is that because I have cherry-picked “hard cases.” Ibid. Scenarios like these—and variations of them—illustrate
