Legal Writing

The Supreme Court Corrects the Government’s Grammar

Yesterday, the Supreme Court published its opinion in Flores-Figueroa v. United States, a case in which the government held that you shouldn’t rigidly apply the rules of English grammar to federal statutes.

At issue was this provision (18 U. S. C. §1028A(a)(1)):

Whoever, during and in relation to any felony violation enumerated in subsection (c), knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person shall, in addition to the punishment provided for such felony, be sentenced to a term of imprisonment of 2 years.

According to the court:

The question is whether the statute requires the Government to show that the defendant knew that the ?means of identification? he or she unlawfully transferred, possessed, or used, in fact, belonged to ?another person.?

The government said “No.” The court said “Yes.”

According to the court:

Petitioner Ignacio Flores-Figueroa argues that the statute requires that the Government prove that he knew that the ?means of identification? belonged to someone else, i.e., was ?a means of identification of another person.? The Government argues that the statute does not impose this particular knowledge requirement. The Government concedes that the statute uses the word ?knowingly,? but that word, the Government claims, does not modify the statute?s last phrase (?a means of identification of another person?) or, at the least, it does not modify the last three words of that phrase (?of another person?).

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There are strong textual reasons for rejecting the Government?s position. As a matter of ordinary English grammar, it seems natural to read the statute?s word ?knowingly? as applying to all the subsequently listed elements of the crime. The Government cannot easily claim that the word ?knowingly? applies only to the statutes first four words, or even its first seven. It makes little sense to read the provision?s language as heavily penalizing a person who ?transfers, possesses, or uses, without lawful authority? a something, but does not know, at the very least, that the ?something? (perhaps inside a box) is a ?means of identification.? Would we apply a statute that makes it unlawful ?knowingly to possess drugs? to a person who steals a passenger?s bag without knowing that the bag has drugs inside?

The Government claims more forcefully that the word ?knowingly? applies to all but the statute?s last three words, i.e., ?of another person.? The statute, the Government says, does not require a prosecutor to show that the defendant knows that the means of identification the defendant has unlawfully used in fact belongs to another person. But how are we to square this reading with the statute?s language?

In ordinary English, where a transitive verb has an object, listeners in most contexts assume that an adverb (such as knowingly) that modifies the transitive verb tells the listener how the subject performed the entire action, including the object as set forth in the sentence. 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. Nor would it matter if the bank official said ?Smith knowingly transferred the funds to the account of his brother.? In either instance, if the bank official later told us that Smith did not know the account belonged to Smith?s brother, we should be surprised.

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The manner in which the courts ordinarily interpret criminal statutes is fully consistent with this ordinary English usage. 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.

A tip of the hat to Stephen Sather, author of  A Texas Bankruptcy Lawyer’s Blog, for bringing this to our swift attention so swiftly.

Full post as published by Set in Style on May 05, 2009 (boomark / email).