05 May 2009

Flores-Figueroa: Forgiving Sloppy Statutese

[1] The USSC decided a case yesterday contrary to the actual language of the statute - using the language of statutory interpretation. In Flores-Figueroa, the Court had to decides "knowingly" is not an adverb but a substitute for the phrase "knowing it to be." The Court is interpreting this statute:
[2] knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person. 18 U. S. C. §1028A(a)(1)
[3] However, when the Court is finished with it, the statute ends up being this:
[4] transfers, possesses, or uses, without lawful authority, a means of identification knowing it to be of another person.
[5] The Court's rationale is that
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.
[6] Poppycock. Balderdash. Fiddlesticks.

[7] "Knowingly" does not equal "knowing it to be." To be certain, the statute is poorly written and would make much more sense if it were written in the manner which the Court decided to rewrite it. However, as we all learned somewhen about the 3d grade, "ly" is a suffix indicating an adverb. This confines it to the verbs, "transfers, possesses, or uses." Thus, the government is quite correct in claiming that "knowingly" applies only to those four words. The Court is correct in stating that "without lawful authority" (the next three words-making "its first seven") isn't modified by "knowingly" because they also modify the verbs.

[8] Before anyone argues that certain adjectives can also end in "ly", I concede the point. Words such as "lovely" are clearly adjectives: "the lovely dress." Still, the general rule isn't violated in this case.

[9] In any event, I invite you to diagram that statute. Go on, it's a skill we all learned in seventh grade English class. Okay, now look at that line which separates the verbs from the object. Which side is "knowingly" on? The verbal side. Or, if you don't have the rudimentary English skills to do that, just take "knowingly" and try to fit it anywhere into "a means of identification of another person" without changing the form of "knowingly." It doesn't work.

[10] Justify your decision another way. Tell me that the Constitution, via the common law, requires a defendant to intend every element of a crime. Tell me there's a rule of statutory interpretation requiring intent for every element of a crime. Heck, tell me there's a scriviner's error. Just don't tell me you've reached this conclusion "as a matter of ordinary English grammar."


Donald said...

I was a bit surprised that lenity didn't at least get a mention in the opinion. The statute is poorly written, and it should be constructed favorably to the defendant, rather than the Government.

I'm still not sure the Court is as clearly wrong as you argue. Congress forbids knowingly using a means of identification of another person. Your reading really replaces "of another person" with "describing someone other than the defendant." After all, if a defendant thinks he has an ID that is merely fictitious (as opposed to stolen from a real person), then he knowingly uses the identification, but doesn't knowingly use the identification of another person, since he doesn't know another person is involved.

Neal Goldfarb said...


You may want to think twice about basing legal opinions on what you learned in third grade.

If you're interested in a discussion that's pitched at a somewhat more sophisticated level, check out the amicus brief I filed in Flores-Figueroa and this post about the case at Language Log.