Grammar Schooled: Over-Zealous Feds Get an “F” in Adverbs

In a sort-of unanimous opinion today, the Supreme Court reversed the conviction of a Mexican who’d tried to get a job by using counterfeit Social Security and Alien Registration cards along with a fake name and date of birth. He’d been convicted of aggravated identity theft, 18 U. S. C. §1028A(a)(1) — a federal crime for “knowingly” using “a means of identification of another person.”

There was no evidence that this guy, named Flores, knew that the Social Security cards (plural) or Alien Registration cards (yes, plural) he’d tried to use had actually belonged to anyone else. And in fact, they didn’t, as they were made-up counterfeits. The feds said it wasn’t necessary to prove that Flores knew it was someone else’s ID. All they needed to prove, they said, was that Flores knew that… well… that he was using a means of identification.

The trial court, for some reason, bought that argument. Flores then decided to forego a jury and let the judge decide the case. The judge found him guilty of aggravated identity theft. On appeal, the Eighth Circuit agreed with the trial judge’s ruling.

Writing for the Court today in Flores-Figueroa v. U.S., Justice Breyer gave the feds (and the trial judge, and the Circuit) an “F” in basic English grammar. The phrase “knowingly using someone else’s ID” has a simple plain meaning, which is that you knew it was someone else’s ID. Nobody in their right mind would expect the word “knowing” to only modify the verb “using.” Nobody with a third-grader’s grasp of English would think it did not modify the verb phrase “using someone else’s ID.” In fact, to read the sentence the way the feds wanted to would make no sense whatsoever.

The feds, for their part, could not present a single example of a statute being interpreted the way they wanted this one to be interpreted. Their arguments were just lame. And so all nine Justices agreed that this conviction needed to be reversed.

But not all nine could agree with the rest of Breyer’s reasoning. And neither can we. If Breyer had stopped right here, this would have been a great opinion. But he didn’t stop there. Instead, as pointed out by (still concurring) Justices Scalia, Thomas and Alito, he added some unnecessary extra bits of reasoning that only serve to weaken the Court’s opinion.

All three properly called him out for making a baseless statement that courts “ordinarily” read the mens rea of “knowingly” to apply to every element of the crime. Breyer said that there are certainly examples where “knowingly” does not apply to every element. For example, it’s illegal to knowingly transport someone under 18 years old across state lines for prostitution. But you didn’t have to know that the victim was under 18 to be convicted of this crime. The law doesn’t care whether you knew that element or not. All you had to do was know that you were transporting the victim across state lines for prostitution.

Scalia remained “agnostic” on whether courts “ordinarily” interpret laws this way. But Breyer seems to imply that courts should interpret laws this way, and Scalia cautioned against that firmly. “It is one thing to infer the common-law tradition of a mens rea requirement, where Congress has not addressed the mental element of a crime,” he said (a tip of the hat to one of Breyer’s own dissents last week). But “it is something else to expand a mens rea requirement that the statutory text has carefully limited.

Scalia also raised another good point, that Breyer shouldn’t have gone on about the legislative history here. “Relying on the statement of a single Member of Congress or an unvoted-upon (and for all we know unread) Committee Report to expand a statute beyond the limits its text suggests is always a dubious enterprise.” That is especially bad, he added, when doing so would criminalize acts that the text would otherwise permit.

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It is clear that the feds improperly charged Flores with identity theft here. Although he clearly used a false identity, and absolutely tried to pass off counterfeit identification documents, it was equally clear that he had never stolen or used anyone else’s ID.

Why did the feds charge him with a crime he clearly hadn’t committed? It’s not as if they didn’t have other stuff to charge him with. Were they just not thinking? Did they just not understand what the law said in plain English? Did they just not care? Or were they intentionally trying to stick it to him?

Hmm… that’s a nice little mens rea question. Their reasons determine their culpability. Were they idiots (and therefore bad at their job, but not bad people), or were they abusing their power (and therefore bad prosecutors, and bad people)? What do you think?