Becoming Human

“[A person] knowingly transfers, possesses or uses, without lawful authority, a means of identification of another person.”   In this sentence, what does the person have to know?  Does he have to know the identification belongs to another person or does he merely have to know he is using a means of identification?

Yesterday the Supreme Court heard oral arguments to decide what, in a criminal statute, the word “knowingly” modifies.  The case of Ignacio Carlos Flores-Figueroa v. United States of America asks the question:  is it identity theft if an illegal alien buys and uses a false Social Security number without knowing that it belongs to someone else?  Figueroa, a citizen of Mexico, had been working in the US under a false name and false documents with made up numbers for some time.  In a distinct moment of unclarity he decided to work under his own name so he bought new fake documents and told his employer he wanted to start using his real name and the new documents.  The employer became suspicious and called ICE.   Figueroa pled guilty to misuse of immigration documents and entering the United States without inspection.  Unfortunately for him, it turned out that the numbers on the Social Security card and the “Green Card” actually did belong to someone else, although the rightful owner was apparently unharmed.  For this he  was also charged with, and ultimately convicted of, aggravated identity theft in violation of 18 U.S.C 1028A(a)(1) which provides two years in prison for a person who “during and in relation to” certain other crimes “knowingly transfers, possesses or uses, without lawful authority, a means of identification of another person.”

The question that remains is whether he can be convicted even though he did not know the number actually belonged to someone else.  It hinges on whether the adverb “knowingly” modifies just the verbs “transfers, possesses or uses” as the government claims or whether it also modifies “another person” as the defendant claims.

The briefs of both the defendant and the government go on and on page after page with citations of how other courts applied “knowingly” their way and how definitive books on grammar dictate that it be applied their way.    There was even a Brief for Professors of Linguistics in Support of Neither Party.   The professors do, however, support the defendant.  The say the natural reading of the sentence is unambiguous because an adverb, in this case “knowingly,” “modifies the entire predicate consisting of the verbs and their direct object.”  To paraphrase one of their numerous examples, “Fat Tuesday knowingly allowed the purchase of beer by a person under the age of 21.”  Clearly this does not mean that Fat only knew he was allowing something, or even allowing a purchase, or even allowing the purchase of beer.  Clearly it means Fat knew the people allowed to purchase the beer were underage.

A number of criminal defense and pro-immigration groups filed amicus briefs supporting the defendant while some victim’s rights groups filed briefs supporting the government.  That makes sense because if the government wins, Figueroa will be convicted even though he did not know he was harming anyone, but if he wins it means victims have no recourse through no fault of their own.  From what I read in the news about the oral arguments, to the extent the mainstream media can be believed, it seems that the Court did focus on these policy issues more than the grammar issues, and they did seem to lean in favor of the defendant.

As much as I may be a law and order defend the border kind of guy, I have to come out on the side of the defendant in this case.  The statute was drafted poorly if Congress intended it to mean what the prosecutors claim it means.  The plain language supports the defendant and cases should be decided on what a statute (or the Constitution!) says, not on what a majority of the judges want it to say.

You can read all of the briefs at:

http://www.abanet.org/publiced/preview/briefs/feb09.shtml#flores