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Monday, May 04, 2009
Flores-Figueroa v. United States: "Knowingly" applies to all elements of aggravated identity theft law
The federal aggravated identity theft statute, 18 U.S.C. § 1028A(a)(1), prescribes a mandatory two-year term of imprisonment for any person who, "during and in relation to" certain other specified crimes, "knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person." Flores-Figueroa, a Mexican native, worked at a steel plant in East Moline, Ill. He was accused of using a phony Social Security card and a phony alien registration card. The two numbers on those cards had been assigned to someone else; he argued that the enhanced mandatory minimum sentence contained in § 1028A(a)(1) did not apply to him because he used the documents without knowing the numbers were actual numbers assigned to another person. He was convicted and sentenced to 75 months in prison, including a consecutive 24 month enhancement required 1029A(a)(1). The Eighth Circuit Court upheld the sentence, concluding that it was not necessary to show that Flores-Figueroa knew he was using another person’s identifying information. In an opinion by Justice Breyer, the Supreme Court reversed, 9-0, holding that ordinary English grammar suggests that the term "knowingly" applies to all of the statutory elements. The court rejected the government’s focus on what the words necessarily imply (that is -- "John knowingly threw away the homework of his sister" does not necessarily imply that John knew the homework belonged to the sister) in favor of a test that looks at the words would ordinarily imply (that is -- that John knew whose homework it was). It then noted that in criminal law, courts typically apply the required mens rea to every element in the statute. The Court rejected the government’s legislative history argument without commenting on whether the statutory language was ambiguous. It rejected the government’s argument about the difficulty of proving such knowledge by reference to the "classic" identity theft case, which in the Court’s opinion involves using someone’s information to get access to their bank account or credit card. Finally, the Court found that "concerns about practical enforceability are insufficient to outweigh the clarity of the [statutory] text." Justice Scalia (joined by Justice Thomas) concurred in part and in the judgment, taking issue with the Court’s statement that courts typically apply the mens rea to all elements of a criminal statute. He pointed out that he hasn’t canvassed all the cases so didn’t know if that was true and that he was not prepared to say that it should be true. He also disagreed with the Court’s legislative history discussion: "[t]he statute’s text is clear, and I would reverse the judgment of the Court of Appeals on that ground alone." Justice Alito also concurred in part and in the judgment, because he felt that the Court’s point about ordinary English usage was overstated and that context was always the paramount indicator of meaning. He noted that the language used in criminal statutes is often formulated differently from ordinary speech. Justice Alito would start with a general presumption that the specified mens rea applies to all of the elements of the offense, but would also recognize that there are instances where context may rebut the presumption. He would not join any part of the opinion that "may be read to adopt an inflexible rule of construction that can rarely be overcome by contextual features pointing to a contrary meaning." The case resolves a circuit split, and overrules contrary precedent in the Fourth, Eighth, and Eleventh circuits. Its reasoning can also be used to renew challenges to other statutes in which courts have not applied the mens rea to all of the elements. Justice Alito’s concurrence offers the following examples: 18 U.S.C. § 2423(a)(knowingly transporting an individual under the age of 18 with the intent that the person engage in criminal sexual activity, where courts have not required proof that the defendant knew the person’s age); 21 U.S.C. § 861(a)(1)(knowingly enticing a person under the age of 18 to violate drug laws, where courts have not required proof that the defendant knew the person’s age); 8 U.S.C. § 1327 (knowingly assisting an alien who is ineligible to enter the US because s/he has been convicted of an aggravated felony, where courts do not require proof that the defendant knew the alien had been convicted of an aggravated felony). [Adapted from summary by Sara Noonan].