(Slip Opinion) OCTOBER TERM, 2008 1 

Syllabus 

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader. 

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. 

SUPREME COURT OF THE UNITED STATES 

Syllabus 

FLORES-FIGUEROA v. UNITED STATES 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR 

THE EIGHTH CIRCUIT 

No. 08–108. Argued February 25, 2009—Decided May 4, 2009 

A federal statute forbidding “[a]ggravated identity theft” imposes a 

mandatory consecutive 2-year prison term on an individual convicted 

of certain predicate crimes if, during (or in relation to) the commission of those other crimes, the offender “knowingly . . . uses, without 

lawful authority, a means of identification of another person.” 18 

U. S. C. §1028A(a)(1) (emphasis added). After petitioner FloresFigueroa, a Mexican citizen, gave his employer counterfeit Social Security and alien registration cards containing his name but other

people’s identification numbers, he was arrested and charged with

two immigration offenses and aggravated identity theft. Flores 

moved for acquittal on the latter charge, claiming that the Government could not prove that he knew that the documents’ numbers 

were assigned to other people. The District Court agreed with the

Government that the word “knowingly” in §1028A(a)(1) does not modify the statute’s last three words, “of another person,” and, after trial,

found Flores guilty on all counts. The Eighth Circuit affirmed. 

Held: Section §1028(a)(1) requires the Government to show that the 

defendant knew that the means of identification at issue belonged to

another person. As a matter of ordinary English grammar, “knowingly” is naturally read as applying to all the subsequently listed

elements of the crime. Where a transitive verb has an object, listeners in most contexts assume that an adverb (such as “knowingly”)

that modifies the verb tells the listener how the subject performed 

the entire action, including the object. The Government does not 

provide a single example of a sentence that, when used in typical

fashion, would lead the hearer to a contrary understanding. And 

courts ordinarily interpret criminal statutes consistently with the ordinary English usage. See, e.g., Liparota v. United States, 471 U. S. 
2 FLORES-FIGUEROA v. UNITED STATES 

Syllabus 

419. The Government argues that this position is incorrect because it

would either require the same language to be interpreted differently

in a neighboring provision or would render the language in that provision superfluous. This argument fails for two reasons. Finally, the

Government’s arguments based on the statute’s purpose and on the 

practical problems of enforcing it are not sufficient to overcome the 

ordinary meaning, in English or through ordinary interpretive practice, of Congress’ words. Pp. 4–11. 

274 Fed. Appx. 501, reversed and remanded. 

BREYER, J., delivered the opinion of the Court, in which ROBERTS, 

C. J., and STEVENS, KENNEDY, SOUTER, and GINSBURG, JJ., joined. 

SCALIA, J., filed an opinion concurring in part and concurring in the

judgment, in which THOMAS, J., joined. ALITO, J., filed an opinion concurring in part and concurring in the judgment. 
_________________ 

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Cite as: 556 U. S. ____ (2009) 1 

Opinion of the Court 

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press. 

SUPREME COURT OF THE UNITED STATES 

No. 08–108 

IGNACIO CARLOS FLORES-FIGUEROA,

PETITIONER v. UNITED STATES

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 

APPEALS FOR THE EIGHTH CIRCUIT

[May 4, 2009]

 JUSTICE BREYER delivered the opinion of the Court. 

A federal criminal statute forbidding “[a]ggravated

identity theft” imposes a mandatory consecutive 2-year 

prison term upon individuals convicted of certain other 

crimes if, during (or in relation to) the commission of those 

other crimes, the offender “knowingly transfers, possesses, 

or uses, without lawful authority, a means of identification 

of another person.” 18 U. S. C. §1028A(a)(1) (emphasis 

added). The question is whether the statute requires the 

Government to show that the defendant knew that the 

“means of identification” he or she unlawfully transferred,

possessed, or used, in fact, belonged to “another person.” 

We conclude that it does. 

I 

A 

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. 

§1028A(c). It then provides that if any person who commits any of those other crimes (in doing so) “knowingly 
2 FLORES-FIGUEROA v. UNITED STATES 

Opinion of the Court 

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,

for 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”). 

B 

The facts of this case illustrate the legal problem. Ignacio Flores-Figueroa is a citizen of Mexico. In 2000, to 

secure employment, Flores gave his employer a false 

name, birth date, and Social Security number, along with

a counterfeit alien registration card. The Social Security

number and the number on the alien registration card

were not those of a real person. In 2006, Flores presented 

his employer with new counterfeit Social Security and

alien registration cards; these cards (unlike Flores’ old 
Cite as: 556 U. S. ____ (2009) 3 

Opinion of the Court 

alien registration card) used his real name. But this time 

the numbers on both cards were in fact numbers assigned 

to other people.

Flores’ employer reported his request to U. S. Immigration and Customs Enforcement. Customs discovered that 

the numbers on Flores’ new documents belonged to other 

people. The United States then charged Flores with two

predicate crimes, namely, entering the United States 

without inspection, 8 U. S. C. §1325(a), and misusing

immigration documents, 18 U. S. C. §1546(a). And it 

charged him with aggravated identity theft, 18 U. S. C. 

§1028A(a)(1), the crime at issue here. 

Flores moved for a judgment of acquittal on the “aggravated identity theft” counts. He claimed that the Government could not prove that he knew that the numbers on 

the counterfeit documents were numbers assigned to other 

people. The Government replied that it need not prove

that knowledge, and the District Court accepted the Government’s argument. After a bench trial, the court found 

Flores guilty of the predicate crimes and aggravated identity theft. The Court of Appeals upheld the District

Court’s determination. 274 Fed. Appx. 501 (CA8 2008) 

(per curiam). And we granted certiorari to consider the 

“knowledge” issue—a matter about which the Circuits 

have disagreed. Compare United States v. Godin, 534 

F. 3d 51 (CA1 2008) (knowledge requirement applies to “of

another person”); United States v. Miranda-Lopez, 532 

F. 3d 1034 (CA9 2008) (same); United States v. VillanuevaSotelo, 515 F. 3d 1234 (CADC 2008) (same), with United 

States v. Mendoza-Gonzalez, 520 F. 3d 912 (CA8 2008) 

(knowledge requirement does not apply to “of another 

person”); United States v. Hurtado, 508 F. 3d 603 (CA11 

2007) (per curiam) (same); United States v. Montejo, 442 

F. 3d 213 (CA4 2006) (same). 
4 FLORES-FIGUEROA v. UNITED STATES

Opinion of the Court 

II 

There are strong textual reasons for rejecting the Government’s position. As a matter of ordinary English

grammar, it seems natural to read the statute’s word

“knowingly” as applying to all the subsequently listed 

elements of the crime. The Government cannot easily

claim that the word “knowingly” applies only to the statutes first four words, or even its first seven. It makes 

little sense to read the provision’s language as heavily 

penalizing a person who “transfers, possesses, or uses,

without lawful authority” a something, but does not know, 

at the very least, that the “something” (perhaps inside a

box) is a “means of identification.” Would we apply a 

statute that makes it unlawful “knowingly to possess

drugs” to a person who steals a passenger’s bag without 

knowing that the bag has drugs inside? 

The Government claims more forcefully that the word

“knowingly” applies to all but the statute’s last three 

words, i.e., “of another person.” The statute, the Government says, does not require a prosecutor to show that the

defendant knows that the means of identification the 

defendant has unlawfully used in fact belongs to another 

person. But how are we to square this reading with the 

statute’s language?

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. Nor would it matter if the 

bank official said “Smith knowingly transferred the funds

to the account of his brother.” In either instance, if the 

bank official later told us that Smith did not know the 
Cite as: 556 U. S. ____ (2009) 5 

Opinion of the Court 

account belonged to Smith’s brother, we should be 

surprised.

Of course, a statement that does not use the word 

“knowingly” may be unclear about just what Smith knows.

Suppose Smith mails his bank draft to Tegucigalpa, which

(perhaps unbeknownst to Smith) is the capital of Honduras. If the bank official says, “Smith sent a bank draft to

the capital of Honduras,” he has expressed next to nothing

about Smith’s knowledge of that geographic identity. But 

if the official were to say, “Smith knowingly sent a bank 

draft to the capital of Honduras,” then the official has 

suggested that Smith knows his geography.

Similar examples abound. If a child knowingly takes a

toy that belongs to his sibling, we assume that the child 

not only knows that he is taking something, but that he

also knows that what he is taking is a toy and that the toy 

belongs to his sibling. If we say that someone knowingly 

ate a sandwich with cheese, we normally assume that the 

person knew both that he was eating a sandwich and that 

it contained cheese. 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. 

At the same time, dissimilar examples are not easy to 

find. The Government says that “knowingly” modifies

only the verbs in the statute, while remaining indifferent 

to the subject’s knowledge of at least part of the transitive 

verb’s object. In certain contexts, a listener might understand the word “knowingly” to be used in that way. But 

the Government has not provided us with a single example of a sentence that, when used in typical fashion, would 

lead the hearer to believe that the word “knowingly” modifies only a transitive verb without the full object, i.e., that 
6 FLORES-FIGUEROA v. UNITED STATES 

Opinion of the Court 

it leaves the hearer gravely uncertain about the subject’s

state of mind in respect to the full object of the transitive 

verb in the sentence. The likely reason is that such sentences typically involve special contexts or themselves

provide a more detailed explanation of background circumstances that call for such a reading. As JUSTICE ALITO 

notes, the inquiry into a sentence’s meaning is a contextual one. See post, at 3 (opinion concurring in part and

concurring in judgment). No special context is present

here. See infra, at 8–10. 

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. United States v. X-Citement Video, 

Inc., 513 U. S. 64, 79 (1994) (STEVENS, J., concurring). For 

example, in Liparota v. United States, 471 U. S. 419 

(1985), this Court interpreted a federal food stamp statute 

that said, “‘whoever knowingly uses, transfers, acquires, 

alters, or possesses coupons or authorization cards in any 

manner not authorized by [law]’” is subject to imprisonment. Id., at 420, n. 1. The question was whether the

word “knowingly” applied to the phrase “in any manner 

not authorized by [law].” Id., at 423. The Court held that 

it did, id., at 433, despite the legal cliche “ignorance of the

law is no excuse.” 

More recently, we had to interpret a statute that penalizes “[a]ny person who—(1) knowingly transports or ships 

using any means or facility of interstate or foreign commerce by any means including by computer or mails, any 

visual depiction, if—(A) the producing of such visual depiction involves the use of a minor engaging in sexually

explicit conduct.” 18 U. S. C. §2252(a)(1)(A); X-Citement 

Video, supra. In issue was whether the term “knowingly” 

in paragraph (1) modified the phrase “the use of a minor” 
Cite as: 556 U. S. ____ (2009) 7 

Opinion of the Court 

in subparagraph (A). Id., at 69. The language in issue in 

X-Citement Video (like the language in Liparota) was more 

ambiguous than the language here not only because the

phrase “the use of a minor” was not the direct object of the

verbs modified by “knowingly,” but also because it appeared in a different subsection. 513 U. S., at 68–69. 

Moreover, the fact that many sex crimes involving minors

do not ordinarily require that a perpetrator know that his

victim is a minor supported the Government’s position.

Nonetheless, we again found that the intent element 

applied to “the use of a minor.” Id., at 72, and n. 2. Again

the Government, while pointing to what it believes are

special features of each of these cases, provides us with no

convincing counterexample, although there may be such

statutory instances. 

The Government correctly points out that in these cases 

more was at issue than proper use of the English language. But if more is at issue here, what is it? The Government makes a further textual argument, a complex 

argument based upon a related provision of the statute. 

That provision applies “[a]ggravated identity theft” where

the predicate crime is terrorism. See §1028A(a)(2). The 

provision uses the same language as the provision before

us up to the end, where it adds the words “or a false identification document.” Thus, it penalizes anyone who 

“knowingly transfers, possesses, or uses, without lawful

authority, a means of identification of another person or a 

false identification document.” §1028A(a)(2).

The Government’s argument has four steps. Step One:

We should not interpret a statute in a manner that makes 

some of its language superfluous. See, e.g., TRW Inc. v. 

Andrews, 534 U. S. 19, 31 (2001). Step Two: A person who

knows that he is transferring, possessing, or using a

“‘means of identification’” “‘without lawful authority,’” 

must know that the document either (a) belongs “‘to another person’” or (b) is a “‘false identification document’” 
8 FLORES-FIGUEROA v. UNITED STATES 

Opinion of the Court 

because “‘there are no other choices.’” Brief for United 

States 14 (emphasis added). Step Three: Requiring the

offender to know that the “means of identification” belongs 

to another person would consequently be superfluous in 

this terrorism provision. Step Four: We should not interpret the same phrase (“of another person”) in the two

related sections differently.

If we understand the argument correctly, it seems to

suffer two serious flaws. If the two listed circumstances 

(where the ID belongs to another person; where the ID is

false) are the only two circumstances possibly present

when a defendant (in this particular context) unlawfully 

uses a “means of identification,” then why list them at all? 

Why not just stop after criminalizing the knowing unlawful use of a “means of identification”? (Why specify that 

Congress does not mean the statute to cover, say, the use

of dog tags?) The fact is, however, that the Government’s 

reasoning at Step Two is faulty. The two listed circumstances are not the only two circumstances possibly present when a defendant unlawfully uses a “means of identification.” One could, for example, verbally provide a seller 

or an employer with a made-up Social Security number,

not an “identification document,” and the number verbally 

transmitted to the seller or employer might, or might not,

turn out to belong to another person. The word “knowingly” applied to the “other person” requirement (even in a

statute that similarly penalizes use of a “false identification document”) would not be surplus. 

The Government also considers the statute’s purpose to 

be a circumstance showing that the linguistic context here 

is special. It describes that purpose as “provid[ing] enhanced protection for individuals whose identifying information is used to facilitate the commission of crimes.” Id., 

at 5. And it points out that without the knowledge requirement, potential offenders will take great care to avoid 

wrongly using IDs that belong to others, thereby enhanc-
Cite as: 556 U. S. ____ (2009) 9 

Opinion of the Court 

ing the protection that the statute offers.

The question, however, is whether Congress intended to

achieve this enhanced protection by permitting conviction

of those who do not know the ID they unlawfully use refers 

to a real person, i.e., those who do not intend to cause this 

further harm. And, in respect to this latter point, the 

statute’s history (outside of the statute’s language) is

inconclusive. 

On the one hand, some statements in the legislative

history offer the Government a degree of support. The 

relevant House Report refers, for example, both to “identity theft” (use of an ID belonging to someone else) and to 

“identity fraud” (use of a false ID), often without distinguishing between the two. See, e.g., H. R. Rep. No. 108–

528, p. 25 (2004) (statement of Rep. Coble). And, in equating fraud and theft, Congress might have meant the statute to cover both—at least where the fraud takes the form 

of using an ID that (without the offender’s knowledge) 

belongs to someone else. 

On the other hand, Congress separated the fraud crime

from the theft crime in the statute itself. The title of one 

provision (not here at issue) is “Fraud and related activity 

in connection with identification documents, authentication features, and information.” 18 U. S. C. §1028. The 

title of another provision (the provision here at issue) uses

the words “identity theft.” §1028A (emphasis added).

Moreover, the examples of theft that Congress gives in the 

legislative history all involve instances where the offender 

would know that what he has taken identifies a different 

real person. H. R. Rep. No. 108–528, at 4–5 (identifying as 

examples of “identity theft” “‘dumpster diving,’” “accessing information that was originally collected for an authorized purpose,” “hack[ing] into computers,” and “steal[ing] 

paperwork likely to contain personal information”). 

Finally, and perhaps of greatest practical importance,

there is the difficulty in many circumstances of proving 
10 FLORES-FIGUEROA v. UNITED STATES 

Opinion of the Court 

beyond a reasonable doubt that a defendant has the necessary knowledge. Take an instance in which an alien who 

unlawfully entered the United States gives an employer

identification documents that in fact belong to others.

How is the Government to prove that the defendant knew 

that this was so? The Government may be able to show

that such a defendant knew the papers were not his. But 

perhaps the defendant did not care whether the papers (1)

were real papers belonging to another person or (2) were

simply counterfeit papers. The difficulties of proof along 

with the defendant’s necessary guilt of a predicate crime

and the defendant’s necessary knowledge that he has 

acted “without lawful authority,” make it reasonable, in 

the Government’s view, to read the statute’s language as 

dispensing with the knowledge requirement. 

We do not find this argument sufficient, however, to

turn the tide in the Government’s favor. For one thing, in

the classic case of identity theft, intent is generally not 

difficult to prove. For example, where a defendant has 

used another person’s identification information to get

access to that person’s bank account, the Government can

prove knowledge with little difficulty. The same is true 

when the defendant has gone through someone else’s trash 

to find discarded credit card and bank statements, or 

pretends to be from the victim’s bank and requests personal identifying information. Indeed, the examples of 

identity theft in the legislative history (dumpster diving,

computer hacking, and the like) are all examples of the 

types of classic identity theft where intent should be relatively easy to prove, and there will be no practical enforcement problem. For another thing, to the extent that

Congress may have been concerned about criminalizing 

the conduct of a broader class of individuals, the concerns 

about practical enforceability are insufficient to outweigh 

the clarity of the text. Similar interpretations that we 

have given other similarly phrased statutes also created 
Cite as: 556 U. S. ____ (2009) 11 

Opinion of the Court 

practical enforcement problems. See, e.g., X-Citement 

Video, 513 U. S. 64; Liparota, 471 U. S. 419. But had 

Congress placed conclusive weight upon practical enforcement, the statute would likely not read the way it

now reads. Instead, Congress used the word “knowingly” 

followed by a list of offense elements. And we cannot find 

indications in statements of its purpose or in the practical

problems of enforcement sufficient to overcome the ordinary meaning, in English or through ordinary interpretive

practice, of the words that it wrote.

We conclude that §1028A(a)(1) requires the Government

to show that the defendant knew that the means of identification at issue belonged to another person. The judgment of the Court of Appeals is reversed, and the case is

remanded for further proceedings consistent with this 

opinion. 

It is so ordered. 
_________________ 

_________________ 

Cite as: 556 U. S. ____ (2009) 1 

Opinion of SCALIA, J. 

SUPREME COURT OF THE UNITED STATES 

No. 08–108 

IGNACIO CARLOS FLORES-FIGUEROA,

PETITIONER v. UNITED STATES

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 

APPEALS FOR THE EIGHTH CIRCUIT

[May 4, 2009]

 JUSTICE SCALIA, with whom JUSTICE THOMAS joins,

concurring in part and concurring in the judgment. 

I agree with the Court that to convict petitioner for

“knowingly transfer[ring], possess[ing], or us[ing], without 

lawful authority, a means of identification of another 

person,” 18 U. S. C. §1028A(a)(1), the Government must

prove that he “knew that the ‘means of identification’ he 

. . . unlawfully transferred, possessed, or used, in fact,

belonged to ‘another person.’” Ante, at 1. “Knowingly” is

not limited to the statute’s verbs, ante, at 4. Even the 

Government must concede that. See United States v. 

Villanueva-Sotelo, 515 F. 3d 1234, 1237 (CADC 2008) 

(“According to the government, this text is unambiguous:

the statute’s knowledge requirement extends only so far as

‘means of identification’”). But once it is understood to 

modify the object of those verbs, there is no reason to

believe it does not extend to the phrase which limits that 

object (“of another person”). Ordinary English usage

supports this reading, as the Court’s numerous sample

sentences amply demonstrate. See ante, at 4–5. 

But the Court is not content to stop at the statute’s text,

and I do not join that further portion of the Court’s opinion. First, the Court relies in part on the principle that 

“courts ordinarily read a phrase in a criminal statute that

introduces the elements of a crime with the word ‘know-
2 FLORES-FIGUEROA v. UNITED STATES 

Opinion of SCALIA, J. 

ingly’ as applying that word to each element.” Ante, at 6. 

If that is meant purely as a description of what most cases

do, it is perhaps true, and perhaps not. I have not canvassed all the cases and am hence agnostic. If it is meant, 

however, as a normative description of what courts should 

ordinarily do when interpreting such statutes—and the 

reference to JUSTICE STEVENS’ concurring opinion in 

United States v. X-Citement Video, Inc., 513 U. S. 64, 79 

(1994), suggests as much—then I surely do not agree. The 

structure of the text in X-Citement Video plainly separated

the “use of a minor” element from the “knowingly” requirement, wherefore I thought (and think) that case was 

wrongly decided. See id., at 80–81 (SCALIA, J., dissenting).

It is one thing to infer the common-law tradition of a mens 

rea requirement where Congress has not addressed the

mental element of a crime. See Staples v. United States, 

511 U. S. 600, 605 (1994); United States v. United States 

Gypsum Co., 438 U. S. 422, 437–438 (1978). It is something else to expand a mens rea requirement that the

statutory text has carefully limited. 

I likewise cannot join the Court’s discussion of the (as

usual, inconclusive) legislative history. Ante, at 9. Relying on the statement of a single Member of Congress or an

unvoted-upon (and for all we know unread) Committee

Report to expand a statute beyond the limits its text suggests is always a dubious enterprise. And consulting those 

incunabula with an eye to making criminal what the text 

would otherwise permit is even more suspect. See United 

States v. R. L. C., 503 U. S. 291, 307–309 (1992) (SCALIA, 

J., concurring in part and concurring in judgment). Indeed, it is not unlike the practice of Caligula, who reportedly “wrote his laws in a very small character, and hung 

them up upon high pillars, the more effectually to ensnare

the people,” 1 W. Blackstone, Commentaries on the Laws 

of England 46 (1765).

The statute’s text is clear, and I would reverse the 

judgment of the Court of Appeals on that ground alone. 
_________________ 

_________________ 

Cite as: 556 U. S. ____ (2009) 1 

Opinion of ALITO, J. 

SUPREME COURT OF THE UNITED STATES 

No. 08–108 

IGNACIO CARLOS FLORES-FIGUEROA,

PETITIONER v. UNITED STATES

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 

APPEALS FOR THE EIGHTH CIRCUIT

[May 4, 2009]

 JUSTICE ALITO, concurring in part and concurring in the

judgment. 

While I am in general agreement with the opinion of the 

Court, I write separately because I am concerned that the 

Court’s opinion may be read by some as adopting an overly 

rigid rule of statutory construction. The Court says 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.” Ante, at 

4. The Court adds that counterexamples are “not easy to

find,” ante, at 5, and I suspect that the Court’s opinion will 

be cited for the proposition that the mens rea of a federal 

criminal statute nearly always applies to every element of 

the offense. 

I think that the Court’s point about ordinary English

usage is overstated. Examples of sentences that do not 

conform to the Court’s rule are not hard to imagine. For 

example: “The mugger knowingly assaulted two people in 

the park—an employee of company X and a jogger from 

town Y.” A person hearing this sentence would not likely 

assume that the mugger knew about the first victim’s

employer or the second victim’s home town. What matters 

in this example, and the Court’s, is context. 
2 FLORES-FIGUEROA v. UNITED STATES 

Opinion of ALITO, J. 

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: “FloresFigueroa 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 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.

For example, 18 U. S. C. §2423(a) makes it unlawful to

“knowingly transpor[t] an individual who has not attained 

the age of 18 years in interstate or foreign commerce . . .

with intent that the individual engage in prostitution, or

in any sexual activity for which any person can be charged 

with a criminal offense.” The Courts of Appeals have

uniformly held that a defendant need not know the victim’s age to be guilty under this statute. See, e.g., United 

States v. Griffith, 284 F. 3d 338, 350–351 (CA2 2002); 

United States v. Taylor, 239 F. 3d 994, 997 (CA9 2001); cf. 

United States v. Chin, 981 F. 2d 1275, 1280 (CADC 1992) 

(Ginsburg, J.) (holding that 21 U. S. C. §861(a)(1), which 

makes it unlawful to “knowingly and intentionally . . . 

employ, hire, use, persuade, induce, entice, or coerce, a

person under eighteen years of age to violate” drug laws, 

does not require the defendant to have knowledge of the 
Cite as: 556 U. S. ____ (2009) 3 

Opinion of ALITO, J. 

minor’s age). Similarly, 8 U. S. C. §1327 makes it unlawful to “knowingly ai[d] or assis[t] any alien inadmissible 

under section 1182(a)(2) (insofar as an alien inadmissible 

under such section has been convicted of an aggravated 

felony) . . . to enter the United States.” The Courts of 

Appeals have held that the term “knowingly” in this context does not require the defendant to know that the alien 

had been convicted of an aggravated felony. See, e.g., 

United States v. Flores-Garcia, 198 F. 3d 1119, 1121–1123 

(CA9 2000); United States v. Figueroa, 165 F. 3d 111, 118– 

119 (CA2 1998).

In the present case, however, the Government has not

pointed to contextual features that warrant interpreting

18 U. S. C. §1028A(a)(1) in a similar way. Indeed, the 

Government’s interpretation leads to exceedingly odd

results. Under that interpretation, if a defendant uses a

made-up Social Security number without having any

reason to know whether it belongs to a real person, the 

defendant’s liability under §1028A(a)(1) depends on 

chance: If it turns out that the number belongs to a real

person, two years will be added to the defendant’s sentence, but if the defendant is lucky and the number does 

not belong to another person, the statute is not violated. 

I therefore concur in the judgment and join the opinion 

of the Court except insofar as it may be read to adopt an 

inflexible rule of construction that can rarely be overcome 

by contextual features pointing to a contrary reading.