Rachel Browning’s Legal Blog

            Last week, the U.S. Supreme Court issued an important decision addressing the Department of Justice’s use of a federal statute covering identity theft and its applicability to undocumented immigrants who have used false social security numbers in order to obtain employment.  

            The case, Flores-Figueroa v. United States, required the court to address a circuit split over the scope of the mens rea requirement in the statute; specifically, whether the statute required the government to demonstrate that the immigrant in question knew that the social security number he/she was using actually belonged to someone else (as opposed to simply knowing the number was just made up).  The aggravated identity theft statute, (18 U.S.C. § 1028A (a)(1)),  imposes a mandatory two-year sentence on anyone who, during the commission of certain predicate offenses, “knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person.”  (My emphasis).  The government attempted to argue that the term “knowingly” applied only to the first part of the enumerated elements – the transfer, possession or use of the means of identification.  It did not require, the government argued, that the defendant know the means of identification belonged to another person.  The court unanimously agreed with Flores-Figueroa, however; that to obtain a conviction the Government must show that the defendant knew that the “means of identification” he unlawfully transferred, possessed, or used, belonged to a real person. 

            Justice Breyer’s opinion of the court reads more like a middle school grammar lesson than a traditional judicial opinion, and I found parts of it rather humorous.  Justice Breyer held that there were “strong textual reasons” for agreeing with Flores-Figueroa’s interpretation over that of the government.  Applying “knowingly” to the phrase’s verbs, but not the words “of another person,” would conflict with ordinary English usage, he remarked.  He explained:

            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…

            Similar examples abound. If a child knowingly takes a toy that belongs to his sibling, we assume that the child not only knows that he is taking something, but that he also knows that what he is taking is a toy and that the toy belongs to his sibling. If we say that someone knowingly ate a sandwich with cheese, we normally assume that the person knew both that he was eating a sandwich and that it contained cheese.

Justice Breyer also pointed out that the word “knowingly,” when found in criminal statutes, usually refers to all the elements of a crime that follow. 

            During the final years of the Bush Administration, the Department of Justice and Department of Homeland Security, in an effort to intensify its immigration enforcement procedures, offered “plea agreements” to detained immigrants arrested during workplace raids, which gave them the option of pleading guilty to social security fraud, or else face the more serious charge of aggravated identity theft and a mandatory 2-year prison term.  Immigrant advocates objected to the strategy since most (if not all) undocumented workers who use false social security numbers do not know whether the number belongs to an actual person or not, and argued that the government could not sustain such a charge without proving that the individual knew the false numbers used belonged to a real person.  Last week’s ruling marks a victory for immigrants’ rights advocates and another legal defeat to the former Administration and its controversial practices regarding detention and prosecution of aliens.