Opinion Recap: Flores-Figueroa v. US
Stanford student Daniel Matro discusses the opinion in Flores-Figueroa v. US. Please note that Howe & Russell represents petitioner. Additional information on the case is available from SCOTUSwiki.
On Monday, the Supreme Court issued its opinion in Flores-Figueroa v. United States. The case called upon the Court to resolve a circuit split over the scope of the mens rea requirement in the federal aggravated identity theft statute, 18 U.S.C. § 1028A(a)(1), which imposes a mandatory two-year sentence on anyone who, during and in relation to certain predicate offenses, “knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person.” The Court unanimously agreed with Flores-Figueroa that, to obtain a conviction under § 1028A(a)(1), the Government must show that the defendant knew that the “means of identification” he unlawfully transferred, possessed, or used, belonged to a real person.
Writing for the Court, Justice Breyer first explained that there were “strong textual reasons” for adopting Flores-Figueroa’s interpretation. Reading “knowingly” to apply only to the provision’s verbs, or to everything but the words “of another person,” would conflict with ordinary English usage. Justice Breyer illustrated this point with a series of sample sentences. For example, to say “someone knowingly ate a sandwich with cheese” is to suggest that the person knew he ate a sandwich containing cheese. The same general rule applies to interpretation of criminal statutes, Justice Breyer observed, as “[c]ourts 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 Breyer then considered each of the Government’s arguments for a different reading. He dismissed the Government’s primary textual argument – that a narrow interpretation of the knowledge requirement was necessary to avoid surplusage in a nearly identically worded neighboring provision – as logically flawed. Justice Breyer next addressed the Government’s contention that its reading would advance the statute’s purpose to provide enhanced protection against identity theft. He conceded that, if defendants are held liable for aggravated identity theft even if they did not know the IDs they used belonged to another person, potential offenders might take greater care to avoid using the IDs of real people. But Justice Breyer found the legislative history on this point too inconclusive to make a difference. Finally, Justice Breyer was not persuaded that any additional practical difficulties the Government might face prosecuting identity theft justified a reading that dispensed with the knowledge requirement. In most cases of classic identity theft, he noted, proving intent is not difficult. And, in any event, such enforceability concerns fail to overcome the “clarity of the text.”
Justice Scalia, joined by Justice Thomas, wrote separately to say that he would decide the case on textual grounds alone. He agreed with the Court’s conclusion that ordinary English usage supports Flores-Figueroa’s interpretation of this statute, but took issue with Justice Breyer’s suggestion that courts should ordinarily apply the mens rea requirement in a criminal statute to every element of the crime. In some statutes, structural cues may indicate that Congress intended otherwise. Additionally, Justice Scalia refused to join the Court’s discussion of legislative history. He found it particularly troubling to consult such sources “with an eye to making criminal what the text would otherwise permit.”
Justice Alito also wrote separately to express concern that the Court’s opinion may be read “as adopting an overly rigid rule of statutory construction.” He found it relatively easy to come up with sentences that do not conform to the Court’s rule. In Justice Alito’s view, it is fair to begin with a general presumption that a specified mens rea applies to all elements of an offense, but that presumption may be rebutted by the context. In this case, the Government had not only failed to rebut the presumption, but also could not explain why a defendant’s liability under § 1028A(a)(1) should depend entirely on the chance that the identification number he randomly chose happened to be assigned to a real person.