Former Stanford clinic student Brian Goldman discusses Monday’s decision in No. 08-495.

After two decisions earlier this Term favoring non-citizens’ interpretations of immigration-related statutes (Flores-Figueroa v. United States and Nken v. Holder), the Supreme Court ruled unanimously for the government on Monday, June 15, in Nijhawan v. Holder.  The Court held that to deport an immigrant for committing an “aggravated felony” that “involves fraud or deceit in which the loss to the . . . victims exceeds $10,000,” the underlying fraud offense need not include the minimum loss amount as a statutory element of the crime.  Instead, “the monetary threshold applies to the specific circumstances surrounding an offender’s commission of a fraud and deceit crime on a specific occasion,” which could be determined during removal proceedings before an Immigration Court.

Writing for the Court, Justice Breyer began by characterizing the two competing interpretations of the “aggravated felony” definition.  A “categorical” interpretation would require that the “generic crime” include the loss amount, such that only a conviction of some offense criminalizing frauds over $10,000 would permit deportation.  A “circumstance-specific” approach, on the other hand, would limit the loss-amount trigger “to the specific way in which an offender committed the crime on a specific occasion,” even if the statutory offense itself required no threshold.

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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.”

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The Court has released four opinions today.

The Court has released the opinion in Flores-Figueroa v. United States (08-108). The decision below, which held for the United States, is reversed and remanded in a 9-0 opinion by Justice Breyer, available here.  Justice Scalia filed an opinion concurring in part and in the judgment, joined by Justice Thomas, and Justice Alito filed an opinion concurring in part and in the judgment.

The Court has released the opinion in Carlsbad Technology, Inc. v. HIF Bio, Inc. (07-1437) . The decision below, which held for HIF Bio, is reversed and remanded in a 9-0 opinion by Justice Thomas, available here. Justice Stevens and Justice Scalia filed concurring opinions. Justice Breyer filed a concurring opinion, joined by Justice Souter.

The Court has released the opinion in Arthur Andersen LLP, et al. v. Carlisle, et al. (08-146). The decision below, which held for the company owners, is reversed and remanded in a 6-3 opinion by Justice Scalia, available here. Justice Souter filed a dissenting opinion, joined by Chief Justice Roberts and Justice Stevens.

The Court has released the opinion in Burlington Northern and Santa Fe Railway Company, et al. v. United States; Shell Oil Company v. United States (07-1601; 07-1607).  The decision below, which held for the United States, is reversed and remanded in an 8-1 opinion by Justice Stevens available here. Justice Ginsburg filed a dissenting opinion.

Brian Goldman previews Monday’s first argument.  Additional information on the case is available on SCOTUSwiki, here.

Much like Flores-Figueroa v. United States (No. 08-108), argued earlier this Term, Nijhawan v. Holder (08-495) presents the Court with conflicting interpretations of a statute that sits at the intersection of federal criminal law and immigration law and policy. A provision of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(A)(iii), makes “[a]ny alien who is convicted of an aggravated felony . . . deportable.” As relevant here, Section 1101(a)(43) defines an aggravated felony to include, among others, “an offense that . . . involves fraud or deceit in which the loss to the victim or victims exceeds $10,000” (Subparagraph (M)(i)), and a conspiracy to commit such an offense (Subparagraph (U)). On Monday, April 27, in Nijhawan v. Holder, the Court will consider whether, for an alien to be deportable on account of an aggravated felony, the amount of loss must actually have been found beyond a reasonable doubt by a jury, or whether an alien’s stipulation for sentencing purposes that the loss exceeded $100 million is sufficient for the conviction to qualify as an aggravated felony.

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Stanford student Rakesh Kilaru discusses Wednesday’s argument in Abuelhawa (08-192). 

At Wednesday’s oral argument in Abuelhawa v. United States, the Court appeared to have a sense of déjà vu. In many ways, the Abuelhawa argument played out in much the same fashion as the oral argument one week before in Flores-Figueroa. In both cases, the Court primarily questioned the petitioner about how the statutes at issue – an aggravated identity theft statute in Flores-Figueroa, and a statute criminalizing the use of a telephone in “facilitating” a drug crime in Abuelhawa – would work in practice under the petitioner’s interpretation. Conversely, in both cases, the Court spent most of its time on the bottom side sharply questioning the textual and historical bases for the government’s expansive interpretations of those statutes.

Sri Srinivasan, representing petitioner Salman Khade Abuelhawa, began by attempting to focus on the text, history, and context of the statute. Srinivasan asserted that all three of these sources establish that § 843(b) does not transform an individual’s misdemeanor purchase of drugs into a felony if he uses a telephone to set up that purchase. However, the Court quickly steered the argument to more practical questions about who would be punishable under petitioner’s view of the statute. For example, Justice Kennedy asked about whether a phone call from a buyer’s girlfriend to a seller to set up a purchase would constitute “facilitation.” Srinivasan responded by noting that she might fall within the terms of the statute since she doesn’t benefit from the “buyer-seller rule” at issue in Abuelhawa. Calling Justice Kennedy’s question a “good law school exam type question,” Justice Ginsburg pressed Srinivasan on who is covered “in the real world.” Srinivasan responded that the “classic case of somebody on the facilitating prong would be the classic aider and abettor, for example a lookout.”

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Stanford student Daniel Matro discusses last Wednesday’s argument in Flores-Figueroa v. US.  Please note that Howe & Russell represents petitioner.  Additional information on the case is available from SCOTUSwiki.  

At oral argument on Wednesday, February 25, the Court sharply questioned the government’s position that it need not prove petitioner Flores-Figueroa knew the means of identification he used belonged to another person to convict him of aggravated identity theft under 18 U.S.C. § 1028A(a)(1).  By the end of argument, it appeared that a number of Justices thought the text favored Flores-Figueroa’s interpretation, or was, at best, ambiguous.  The Justices most likely to be swayed by legislative history and purpose did not seem persuaded that Congress’s desire to protect victims compelled construing the text in the government’s favor.

Kevin Russell, representing petitioner Flores-Figueroa, began with an argument that figured prominently in his opening and reply briefs.  In common usage, to say that “John knowingly used a pair of scissors of his mother,” Russell explained, is to say that John knew not only that he was using something, or that he was using a pair of scissors, but that the scissors he was using belonged to his mother.  In his view, the statute should be interpreted no differently.  The Court, however, did not seem especially interested in this line of argument.  Justice Alito questioned whether Russell’s conclusion in fact depended on the context in which such a statement is made.  Chief Justice Roberts chimed in with an example:  To say that someone “stole a car that belonged to Mr. Jones” would not necessarily imply that the thief knew the car belonged to Mr. Jones.  As Russell began explaining why that example was grammatically different, Justice Scalia, in an early sign of his leanings in the case, helpfully added that the Chief Justice’s example omitted the word “knowingly.” 

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Stanford Law School student John Dalton previews one of the cases to be heard by the Court next week.

18 U.S.C. § 924(c)(1)(A)(iii) provides that if an individual possesses a firearm during the commission of a “crime of violence or drug trafficking crime,” and “if the firearm is discharged” then the individual shall “be sentenced to a[n] [additional] term of imprisonment of not less than 10 years.” On March 4, in No. 08-5274, Dean v. United States, the Court will consider whether this sentencing enhancement applies to accidental discharges.

This case arose from petitioner Christopher Dean’s armed robbery of an AmSouth bank in Georgia in 2004. By his own confession, Dean entered the bank with a mask on and a pistol in his right hand. As he was removing the money from the head teller’s station, the gun discharged in his right hand and shot a hole in the teller partition. When the gun discharged, Dean cursed, as if the discharge was accidental. Immediately after the discharge, Dean fled the scene with a little less than $4000.

Dean and his brother-in-law (as co-conspirator) were arrested for the armed robbery. At trial, the jury convicted both men of conspiring to interfere with interstate commerce and aiding and abetting the other in the discharge of a pistol during the robbery in violation of 18 U.S.C. § 924(c)(1)(A)(iii). Dean received 100 months in prison for the armed robbery, along with the additional mandatory minimum of 120 months under 18 U.S.C. § 924(c)(1)(A)(iii).

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The transcript for Hawaii, et al. v. Office of Hawaiian Affairs, et al. (07-1372) is available here.

The transcript for Flores-Figueroa v. United States (08-108) is available here.

On Monday, the Court will release the remaining orders from the Justices’ private conference last Friday. (The hearing list for the next two weeks can be found here.)  Following the release of orders, the Court will hear argument in:

• United States v. Navajo Nation (07-1410)–federal government duty to protect Indian tribe’s mineral rights
• Rivera v. Illinois (07-9995)- effect on conviction of erroneous denial of peremptory challenge to a juror

On Tuesday, the Court will hear argument in:

• Burlington Northern v. U.S. (07-1601) and Shell Oil v. U.S. (07-1607) — liability for cleanup of toxic waste dump (cases consolidated for one-hour hearing)
• Carlsbad Technology v. HIF Bio, Inc. (07-1437) — Circuit Court authority to review District Court order returning case to state courts

On Wednesday, the Court will hear argument in:

• Hawaii v. Office of Hawaiian Affairs (07-1372) — authority of a state to sell state lands
• Flores-Figueroa v. U.S. (08-108) — proof needed under federal identity theft law

On Friday, the Justices will hold a private conference, any grants from which could be announced that afternoon. To view our list of petitions to watch at Friday’s conference, click here.

Petitioner’s merits brief is due Wednesday in Forest Grove School District, Petitioner v. T. A. (08-305), Cuomo v. The Clearing House Ass’n, L.L.C. (08-453), Safford United School District #1 v. Redding (08-479), Nijhawan v. Mukasey (08-495), Bobby v. Bies (08-598), and  U.S. ex rel. Eisenstein v. City of New York (08-660). Respondent’s merits brief is due Wednesday in  Travelers Indemnity v. Bailey (08-295) and Common Law Settlement Counsel v. Bailey (08-307), Polar Tankers v. Valdez (08-310), and Gross v. FBL Financial Services, Inc. (08-441).

Stanford student Daniel Matro previews Flores-Figueroa v. US (08-108).  Please note that Howe & Russell represents the petitioner.  

The federal aggravated identity theft statute, 18 U.S.C. § 1028A(a)(1), 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.”  In Flores-Figueroa v. United States, No. 08-108, the Court will consider whether, to secure a conviction under this statute, the Government must show that the defendant knew that the means of identification he used belonged to another person.

In 2000, petitioner Ignacio Flores-Figueroa, a Mexican citizen, used a fake social security number and resident alien card to obtain work at a steel company in East Moline, Illinois.   Though the documents bore an assumed name, neither the Social Security number nor the alien registration number on them belonged to a real person.  Six years later, Flores-Figueroa acquired counterfeit social security and permanent resident cards in his own name.  He presented the new documents to his employer, not knowing whether the numbers on the cards belonged to another person or, like the numbers on his original documents, instead did not belong to anyone.  Suspicious, the company contacted federal authorities, who determined that the numbers on the documents had been issued to other actual persons.

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Today we are filing our reply brief in Flores-Figueora v. United States, No. 08-108, in conjunction with the Stanford Supreme Court Litigation clinic and local counsel, Gary Koos of Koos & Meloy in Bettendorf, Iowa.  The case concerns the scope of the federal Aggravated Identity Theft statute, 18 U.S.C. § 1028A(a)(1).  More information about the case, including prior briefs, can be found here.

Oral argument in the case is scheduled for Wed., Feb. 25.

The brief was produced with the assistance of Stanford students David Owens, Josh Friedman, and Brian Goldman.

On Monday, the Court will be closed in observance of the birth of Dr. Martin Luther King, Jr.

On Tuesday, the Court will be closed for Inauguration Day.

On Wednesday,  the Court will release the remaining orders from the Justices’ private conference on Friday, as well as hear argument in:

• Corley v. United States (07-10441), involving the suppression of voluntary confessions.
• Kansas v. Ventris (07-1356), involving prosecutors’ ability to impeach witnesses with statements obtained in violation of Miranda v. Arizona.
• Nken v. Mukasey (08-681), involving the standard reviewing courts should use to stay an alien’s order of removal.

On Friday, the Justices will hold a private conference, orders from which are expected to be released the following Monday.

The petitioner’s merits brief is due Wednesday in al-Marri v. Pucciarelli (08-368). The respondent’s merits brief is due Wednesday in Rivera v. Illinois (07-9995), Thursday in  Hawaii, et al. v. Office of Hawaiian Affairs, et al. (07-1372), and Friday in Flores-Figueroa v. United States (08-108) and Arthur Andersen LLP, et al. v. Carlisle, et al. (08-146). (Links above direct to case pages on SCOTUSwiki.)

Today we filed petitioner’s brief in Flores-Figueroa v. United States, No. 08-108.  The case presents the question whether to establish a violation of the federal “aggravated identity theft” statute, the Government must prove that the defendant knew that the false identification numbers he was using in fact belonged to someone else (as opposed to having been simply fabricated and issued to no one).

The brief was written with the assistance of Stanford law students Lisa Ehrlich, Dan Matro, and David Owens.

On Monday, the Court may issue one or more opinions in pending cases, as well as release the remaining orders from the Justices’ private conference last Friday. Following Monday, no oral arguments are scheduled and no non-capital orders are expected to be issued until at least January 9.

Merits briefs for petitioners are due Monday in Flores-Figueroa v. United States (08-108), Thursday in Atlantic Sounding Co., Inc., et al. v. Townsend (08-214), and Friday in Nken v. Mukasey (08-681). Merits briefs for respondents are due Monday in Montejo v. Louisiana (07-1529) and Wednesday in Kansas v. Ventris (07-1356), Burlington Northern and Santa Fe Railway Company, et al. v. United States; Shell Oil Company v. United States (07-1601; 07-1607), Puckett v. United States (07-9712), Corley v. United States (07-10441), and Vermont v. Brillon (08-88). (Links above direct to case pages on SCOTUSwiki.)

The Supreme Court on Monday released the oral argument calendar for the session beginning Monday, Feb. 23, and continuing through Wednesday, March 4.  The calendar can be found here.  All of the hearings will be in the mornings. Here are the scheduled cases, with brief summaries of the issues involved:

Mon., Feb. 23:

U.S. v. Navajo Nation (07-1420) — federal government duty to protect Indian tribe’s mineral rights

Rivera v. Illinois (07-9995) — effect on conviction of erroneous denial of peremptory challenge to a juror

Tues., Feb. 24:

Burlington Northern v. U.S. (07-1601) and Shell Oil v. U.S. (07-1607) — liability for cleanup of toxic waste dump (cases consolidated for one-hour hearing)

Carlsbad Technology v. HIF Bio, Inc. (07-1437) — Circuit Court authority to review District Court order returning case to state courts

Wed., Feb. 25:

Hawaii v. Office of Hawaiian Affairs (07-1372) — authority of a state to sell state lands

Flores-Figueroa v. U.S. (08-108) — proof needed under federal identity theft law

Mon., March 2:

District Attorney’s Office v. Osborne (08-6) — right to obtain DNA evidence

Atlantic Sounding v. Townsend (08-214) — seaman’s right to punitive damages

Tues., March 3:

Caperton v. A.T. Massey Coal (08-22) — duty of elected judge to disqualify from case in which a major campaign donor has an interest

Arthur Andersen LLP v. Carlisle (08-146) — right to appeal a District Court’s refusal to stay a pending case during arbitration

Wed., March 4:

Abuelhawa v. U.S. (08-192) — use of telephone as factor in “facilitation” of felony of distributing illegal drugs, when the purchase is for personal use

Dean v. U.S. (08-5274) — proof needed for ten-year mandatory minimum sentence for discharging a gun during a violent crime