Supreme Court Decision in Federal Identity Theft Case Overrules Eleventh Circuit Precedent, Changing Criminal Law Here in Atlanta

On Monday the Supreme Court issued its opinion in Flores-Figueroa v. United States, resolving a split in the circuits in favor of criminal defendants. The Court held that a federal aggravated identity theft statute requires the government to prove that the defendant knew that the means of identification that he or she used, transferred, or possessed actually belonged to another person. This decision overrules a prior decision by the Eleventh Circuit Court of Appeals, which hears appeals from federal cases in Georgia, Florida, and Alabama.

The statute is 18 U.S.C. § 1028A, entitled “Aggravated Identity Theft,” which provides, in pertinent part:
Whoever, during and in relation to any felony violation enumerated in [§ 1028A(c)], knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person shall, in addition to the punishment provided for such felony, be sentenced to a term of imprisonment of 2 years.

The analysis of the statute involved its syntax – the sentence diagrams of grade school. The basic sentence that the Court analyzed was “Whoever knowingly uses identification of another.” In this sentence, “whoever” is the subject, “uses” is a transitive verb, and “identification” is the direct object. “Of another” is a prepositional phrase modifying the direct object. The dispute boiled down to whether the adverb “knowingly” modified the entire predicate, including the propositional phrase. The government argued, and the Eleventh Circuit held in United States v. Hurtado, that the knowledge requirement in the statute did not extend to the phrase “of another person.” The Supreme Court disagreed “as a matter of ordinary English grammar.”

Justice Breyer, writing for the majority, first pointed out that it would be nonsensical to claim that “knowingly” modified only the verb, penalizing someone who uses “a something, but does not know, at the very least, that the ‘something’ (perhaps inside a box) is a ‘means of identification.'” Rather, “knowingly” must modify both the verb and the direct object.

The government argued that “knowingly” applies to all but the last three words, which are the propositional phrase modifying the direct object. The Court explained, though, that “[i]n 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.” In this statute, the object was set forth as modified by the prepositional phrase. The opinion included several examples of sentences with a similar structure in which a listener would assume “knowingly” modified both the verb and the direct object, but could not come up with any sentences that would lead the hearer to believe that the adverb modifies only a transitive verb without the full object.

Following its syntactic analysis, the Court emphasized its consistency with how courts ordinarily interpret statutes, saying, “courts ordinarily read a phrase in a criminal statute that introduces the elements of a crime with the word “knowingly” as applying that word to each element.” Criminal defense attorneys can use this reasoning to renew challenges to other statutes in which mens rea has not been applied to all elements, including statutes involving minors and aliens ineligible to enter the country. This potential for new challenges makes this decision extremely important.

The Court also rejected the government’s legislative history argument and practicality of enforcement concerns.

The opinion in Flores-Figueroa is available here.