Supreme Court Decides What an Adverb Modifies
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|Last Updated June 27, 2009|
On May 4th, the U.S. Supreme Court decided unanimously, in Flores-Figueroa v. United States, that the word "knowingly" modifies not only the verb, but also the direct object following the verb. In doing so, the Court also decided that illegal aliens cannot be found guilty of Aggravated Identity Theft unless they know their false identification numbers actually belong to someone else. Flores-Figueroa is a Mexican citizen who pled guilty to misuse of immigration documents and entering into the U.S. without inspection. Aggravated Identity Theft provides for two years to be added to the sentence of any such person if he "knowingly transfers, possesses or uses, without lawful authority, a means of identification of another person." 18 U.S.C. §1028A(a)(1).
There is no question that Flores-Figueroa used fake numbers on his fake social security and "Green Cards," but he did not know the numbers belonged to another person. Flores-Figueroa argued in his defense that the word "knowingly" in the statute modifies all of the rest of the sentence, including "of another person" and since he did not know the numbers belonged to another person he cannot be convicted of the additional crime of Aggravated Identity Theft. The prosecution, the United States, argued that the word "knowingly" does not modify "of another person" so he can be convicted regardless of whether he knew the numbers were assigned to someone else.
During the argument phase of the case, a brief was filed by a group of professors of linguistics in which they said the natural reading of the sentence is clear because an adverb "modifies the entire predicate consisting of the verbs and their direct object." The court agrees and offers this example: "Thus, if a bank official says, ‘Smith knowingly transferred the funds to his brother's account,' we would normally understand the bank official's statement as telling us that Smith knew the account was his brother's." The opinion briefly mentions that an understanding based on ordinary English may not always apply due to the context of the particular sentence, but dismisses this saying: "No special context is present here."
The opinion then goes on to support its conclusion by saying criminal statutes are normally interpreted based on ordinary English: "That is to say courts ordinarily read a phrase in a criminal statute that introduces the elements of a crime with the word ‘knowingly' as applying that word to each element."
Does this mean that from now on all statutes containing the modifier "knowingly" will be read in the same way, thus making many types of prosecutions more difficult? From Breyer's statement that criminal statutes are normally interpreted based on ordinary English usage, it would seem this case does not change anything, since statutes are already interpreted that way. But Scalia, Thomas and Alito are concerned that Breyer overstated what is considered the "normal" interpretation in criminal cases. Scalia (joined by Thomas) and Alito wrote separate opinions concurring in part and concurring in the judgment. Although they agreed with the result, they wanted to make some clarifications. Scalia says he cannot assess the truth of Breyer's assertion that "courts ordinarily read a phrase in a criminal statute that introduces the elements of a crime with the word ‘knowingly' as applying that word to each element" because "I have not canvassed all the cases and am hence agnostic." However, he disagrees with Breyer if Breyer means to state a rule that the courts should interpret cases this way. Rather, he would have the court look at the structure of each particular sentence.
Alito, as well, is concerned that Breyer dismissed alternative readings so easily that the context will be ignored. He writes:
I suspect that the Court's opinion will be cited for the proposition that the mens rea of a federal criminal statute nearly always applies to every element of the offense. . . . I think that the Court's point about ordinary English usage is overstated. . . . In interpreting a criminal statute such as the one before us, I think it is fair to begin with a general presumption that the specified mens rea applies to all the elements of an offense, but it must be recognized that there are instances in which context may well rebut that presumption.
The result, I suspect, is that judges will have a tendency to lean toward ordinary English interpretations based on the Court's opinion, but that due to the reasoned cautions of Scalia and Alito, no rigid rule will be established.
What the case really points out is the basic problem with "legalese," a conclusion that Alito's opinion leads us to but does not quite make when he says that perhaps we should not look to ordinary English for guidance, since criminal statutes (or any statutes, for that matter) are not written in ordinary English. He says:
. . . ordinary writers do not often construct the particular kind of sentence at issue here, i.e., a complex sentence in which it is important to determine from the sentence itself whether the adverb denoting the actor's intent applies to every characteristic of the sentence's direct object. Such sentences are a staple of criminal codes, but in ordinary speech, a different formulation is almost always used when the speaker wants to be clear on the point. For example, a speaker might say: ‘Flores-Figueroa used a Social Security number that he knew belonged to someone else' or ‘Flores-Figueroa used a Social Security number that just happened to belong to a real person.'
Perhaps a little more ordinary English infiltrating criminal statutes would not be a bad idea.
For more background on this case see my earlier blog post at the time the Court heard the oral arguments.
Questions & Answers: Identity Theft
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