Grammatical twist in yet another SCOTUS opinion

Tue May 5 18:05:45 UTC 2009

        It's very much a case that, in the court's view, turns on grammar.  Here's the basic issue, as summarized by the court:

        <<The statutory provision in question references a set of predicate crimes, including, for example, theft of government property, fraud, or engaging in various unlawful activities related to passports, visas, and immigration. [18 U.S.C.] §1028A(c). It then provides that if any person who commits any of those other crimes (in doing so) "knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person," the judge must add two years' imprisonment to the offender's underlying sentence. §1028A(a)(1). All parties agree that the provision applies only where the offender knows that he is transferring, possessing, or using _something_. And the Government reluctantly concedes that the offender likely must know that he is transferring, possessing, or using that _something_ without lawful authority. But they do not agree whether the provision requires that a defendant also know that the _something_ he has unlawfully transferred is, f!
 or example, a real ID belonging to another person rather than, say, a fake ID (i.e., a group of numbers that does not correspond to any real Social Security number).

        Petitioner Ignacio Flores-Figueroa argues that the statute requires that the Government prove that he _knew_ that the "means of identification" belonged to someone else, i.e., was "a means of identification _of another person_." The Government argues that the statute does not impose this particular knowledge requirement. The Government concedes that the statute uses the word "knowingly," but that word, the Government claims, does not modify the statute's last phrase ("a means of identification of another person") or, at the least, it does not modify the last three words of that phrase ("of another person").>>

        Justice Breyer, in writing the court's opinion, discusses the grammatical issue at some length.  I excerpt a few brief passages from a discussion that in actuality covered a number of paragraphs:

        <<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. . . . Or consider the Government's own example, "'John knowingly discarded the homework of his sister.'" Brief for United States 9. The Government rightly points out that this sentence "does not _necessarily_" imply that John knew whom the homework belonged to. Ibid. (emphasis added). But that is what the sentence, as _ordinarily_ used, does imply. . . The manner in which the courts ordinarily interpret criminal statutes is fully consistent with this ordinary English usage. That !
 is to say 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.>>

        Justice Alito, in an opinion concurring in the result but not fully agreeing with Justice Breyer's reasoning, also addressed the construction of this language:

        <<I think that the Court's point about ordinary English usage is overstated. [Remarkably lame counterexample omitted.]

        More to the point, ordinary writers do not often construct the particular kind of sentence at issue here, i.e., a complex sentence in which it is important to determine from the sentence itself whether the adverb denoting the actor's intent applies to every characteristic of the sentence's direct object. Such sentences are a staple of criminal codes, but in ordinary speech, a different formulation is almost always used when the speaker wants to be clear on the point. For example, a speaker might say: "Flores-Figueroa used a Social Security number that he knew belonged to someone else" or "Flores-Figueroa used a Social Security number that just happened to belong to a real person." But it is difficult to say with the confidence the Court conveys that there is an "ordinary" understanding of the usage of the phrase at issue in this case.

        In interpreting a criminal statute such as the one before us, I think it is fair to begin with a general presumption that the specified _mens rea_ [state of mind] applies to all the elements of an offense, but it must be recognized that there are instances in which context may well rebut that presumption.>>

        The government's argument seems so weak to me that I am not sure why it was argued before the Supreme Court.  I don't know why the government did not make a more plausible argument, that "another person" means that the defendant knowingly pretended to be someone other than himself, whether that person is real or imaginary.  But I'm not familiar with the case, so it may be that that interpretation is foreclosed by other statutory language.

        Although statutory construction is a recognized area of law (albeit one never practiced on a stand-alone basis) and has enormous real-world consequences, legal education typically involves no linguistic training whatever, except for some basic instruction in persuasive writing.  There may be a good opportunity for cross-disciplinary education.

John Baker

-----Original Message-----
From: American Dialect Society [mailto:ADS-L at LISTSERV.UGA.EDU] On Behalf Of Dennis Baron
Sent: Tuesday, May 05, 2009 11:17 AM
Subject: Re: Grammatical twist in yet another SCOTUS opinion

In fact, Breyer's opinion devotes a significant amount of ink to the scope of "knowingly" in sentences:

Dennis Baron
Professor of English and Linguistics
Department of English
University of Illinois
608 S. Wright St.
Urbana, IL 61801

office: 217-244-0568
fax: 217-333-4321

read the Web of Language:

On May 5, 2009, at 7:52 AM, Victor wrote:

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> Sender:       American Dialect Society <ADS-L at LISTSERV.UGA.EDU>
> Poster:       Victor <aardvark66 at GMAIL.COM>
> Subject:      Grammatical twist in yet another SCOTUS opinion
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> ---------
> Justice Breyer, in his opinion in the case of identity theft laws
> applying to illegal immigration cases, invoked "ordinary English
> grammar" as the determinant. IMO it's a bit of a stretch to call it
> "ordinary grammar", but that's another story entirely.
> A part of the NYT story:
>> Justice Stephen G. Breyer, in his opinion for the court, said the
>> case
> should be decided by applying "ordinary English grammar" to the text
> of the law, which applies when an offender "knowingly transfers,
> possesses or uses, without lawful authority, a means of identification
> of another person."
>> The government had argued that the "knowingly" requirement applied
> only to the verbs in question. Justice Breyer rejected that
> interpretation, saying that "it seems natural to read the statute's
> word 'knowingly' as applying to all the subsequently listed elements
> of the crime."
>> He gave examples from everyday life to support this view. "If we say
> that someone knowingly ate a sandwich with cheese," Justice Breyer
> wrote, "we normally assume that the person knew both that he was
> eating a sandwich and that it contained cheese."

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