Flores-Figueroa v. United States, 129 S. Ct. 1886 (2009)
Amicus brief on behalf of linguistics professors (link)
This case involved the federal “aggravated identity theft” statute (18 U.S.C. § 1028A(a)(1)), which imposes an additional penalty on anyone who, in the course of committing certain other crimes, “knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person[.]” (A “means of identification” is a personal identifier such as a driver’s license, a social security number, or a Green Card.)
The issue was in the case was whether a defendant could be convicted of violating this statute if he knew the means of identification wasn’t his own , but didn’t know that it actually belonged to someone else (e.g., using a social security number that doesn’t belong to you, but that may or may not be assigned to someone).
The courts of appeals were split on this issue. Some had ruled for the government, holding that “knowingly” modified only the verbs “transfers, possesses, or uses.” Under those decisions, the government didn’t have to prove that the defendant knew that the means of identification he was using belonged to someone else. Other courts thought the statute was ambiguous, but ultimately held that “knowingly” modified the entire phrase “transfers, possesses, or uses, without lawful authority, a means of identification of another person[.]”
The amicus brief was filed on behalf of four linguistics professors: Thomas Ernst, Georgia M. Green, Jeffrey P. Kaplan, and Sally McConnell-Ginet. It argued that the statute unambiguously required the government to prove that the defendant knew he was using a means of identification that belonged to someone else:
First, it is a mistake to say that knowingly modifies only the statute’s verbs. Rather, it modifies the entire predicate consisting of the verbs and their direct object….
Second, it is a mistake to say that knowingly modifies transfers, possesses, or uses…a means of identification but not transfers, possesses, or uses…a means of identification of another person. What it modifies is the predicate in its entirety. The prepositional phrase of another person is part of the direct object (a means of identification of another person), so it is part of the predicate and is therefore part of what knowingly modifies.
Third, it is a mistake to say that there is any ambiguity as to what knowingly modifies.
The Supreme Court agreed. It unanimously held that “knowingly” modified the entire phrase “transfers, possesses, or uses, without lawful authority, a means of identification of another person[.]” The Court found the statutory language to be clear on this point, and central to its analysis was the argument that originated in the amicus brief:
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.