Legal Research

?Knowingly? in the U.S. Supreme Court

By Simon Fodden

Fans of adverbs — and of statutory interpretation — might be interested in the case of Flores-Figueroa v. United States, a decision of the U.S. Supreme Court released this Monday. The court had to decide the correct interpretation of a statutory provision, 18 U.S.C. sec. 1028A(a)(1), which states that:

Whoever ? knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person shall ? be sentenced to a term of imprisonment of 2 years.

Particularly, the issue was whether the defendant had to know that the means of identification belonged to another person. Earlier this year an interesting Language Log column on the case put the issue as whether the term ‘knowingly’ modifies just ‘uses’ or also ‘of another person’.

The court decided that the defendant did in fact have to know that the means of identification belonged to another person (and wasn’t simply a phony, made-up means). I find it interesting how much of the decision — the majority opinion and the concurring opinions of Justices Scalia and Alito — was given over to linguistic analysis, in terms such as this, from the majority opinion, for example:

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.

Of course, the Government attempted to persuade the court that more was at stake here than matters of language; but it failed in that:

[W]e cannot find indications in statements of its purpose or in the practical problems of enforcement sufficient to overcome the ordinary meaning, in English or through ordinary interpretive practice, of the words that it wrote.

Full post as published by Slaw.ca on May 07, 2009 (boomark / email).