1 (Slip Opin i o n) OCTOBER T ERM, 20 08 Sy llabu s
N O TE : Wh er e it i s feas ibl e , a s y llab u s (h ead n ot e) wil lbe rel e as ed , as is bein g d o n e incon n ecti onwithth is cas e , a tth e ti meth e op in i o n is is s u ed

. Th e s y ll abu s con s titu tes n o p a rt of th e op in i o nof th eC o u r t bu t h a s be en pre p are dbyt h e Re po rte ro f De ci sio n s fo r t h e co nveni e nce of t h e reade r
. Se e United Statesv. Detroit Timbe r& Lumb er Co., 200U. S

. 3 21, 337

. 

## SUPREME CO URT O FTHE UNI TED STATES

Sy llabu s FLORES- F IGUER O A v . UNITE D STAT ES
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT No. 08–1 08. Ar g u ed Febr uar y25, 2009—Dec i ded M a y 4, 2009 A feder a l st a t ute forb iddin g“[a]g gr av ated identityth eft” impo ses a

mandatory consecutive 2-ye ar prison termon an individual convi c ted of cert a i n predica t e crim e s if, during (or in rela t i on t o ) t h e com m i s sion of those other crimes, the offende r“knowingly

. . . us es , without lawful authority, a means of identificat i o n of ano t her person .” 18 U. S. C. §1028A(a)(1) (emp hasis a dded). After pe titioner FloresFigueroa , a M e xica n cit i zen, gave hi s employer counterfe it Social Se

curit ya n d a l i e n re gis t ra t i on ca rds co nt a i ning his na m eb u tot her people’s identi fication numbers, hewa s arres t ed a n d cha r ged wit h two immigr at ionoffen s es an d ag gr av ated identity theft. Flo r es mov e d forac q u ittalon the l a tterc h ar g e , c l aimingtha t the Gov e r n ment c o uld not pr ov e that he kne w tha tthe doc u ments’ number s were assigned to other peop le. Th e Distr i c tCour t agr eed with the Gov e rnment that the wor d“knowingly” in §102 8A(a)( 1) does not mod

ify the statute’ s last three words, “o f an oth e rper s on ,” an d, aftertr ial, found Flores guilty on all co unts. TheEighth Circuit aff i rmed. Held: Sec t ion§102 8(a)(1) r e qu ir es th e Gov e r n men tto sh ow th at th e

defendant knew that the me ans of identifi cation at i ssue belonged to another person. As a matter of ordina ryEnglis h gra mma r, “know

ingly” is naturally read as applyi ng to all the subsequently liste d elements of th e crime. Whe r e a tran s i t ive verb ha s a nobj e ct , list e n er s in most c o ntex ts assu me that an a dv e rb (suc h a s “knowingly” ) that mo difies the v e rb tells the lis tenerhow the subje c t per f or med the entire action, including the object. The Gove rnm e nt does not provide a single example of a sent ence th at, when us ed in typical fa s h ion, woul d lea dt h e hea r er t oacon t ra ry u n ders t a nding. And
c o ur ts or dinarilyinter p r e t cr iminal st atut es c o nsistentl ywith the or

dina ry Englis h us a g e. S ee, e.g
. , Liparo t av. Uni t ed Sta t es , 471 U. S.2 FLORES-FIG UEROA v. UNITED STATE S Sy llabu s 419. Th e Gov e r n men tar g u es th atth is po sitioni s in c o r r ec t bec a u s e i t would either require the same langua ge to b eint e rpreted different ly in a neighboring provision or would rende rthe la ngua ge in tha t pro v i sionsu per f l u ou s. Th is ar g u men t fails f o r two reasons

. Finally, the Gover n m e nt ’s a r gum e nt s ba s e d on the statute’s purp ose and on the practical prob lems of enforcing it are not sufficient to overcome the ordina ry m e a n ing, in Engli s h or t h roughordina ry int e rpret ive pra c tice, of Congre s s ’ words

. Pp. 4–11. 274 Fed. Appx . 501, r e v e r s ed an d r e man d ed.

B REYER , J., d e livered the opinion of the Court, in whi c h R OBERTS , C. J., and S TEVENS , K ENNEDY , S OUTER , and G IN SB U R G , JJ., joine d

. S CALIA , J ., filed a nopinion conc urri ng inpa rt a n d concur ring in the judgment, in whichT HOMAS , J., joined. ALITO , J., filed an opinion co n cur r ingin pa r ta n d conc ur ring inthe j u dg ment._________________

_________________ 1 Cite as: 55 6 U

. S. ____ (2009) Opinion of theCourt

NOTIC E : Th is op i n ionis subjec t to f o rma lrevi si onbef o r e publicat ioninth e p r eli m in ary p rin t of th e U n it edS t at es R e p o rts

. R e ad ers ar e r e qu es ted to n o tif yth e R e p o rt e rof D e c i s i on s , Su p r em e C o u rt of th e U n ited St at es , Wa s h

ington, D. C. 2054 3, of any typ o gra p hical or other f o rmal err o rs , in or der th atc o rr ect i on sm a y b e mad eb e f o r e th ep r e lim in aryp rin t go es t o p r es s
. 

## SUPREME CO URT O FTHE UNI TED STATES

No. 08–1 08
IGNACI O CARL OS F L OR ES-FI G UE ROA, PETITIONER v. U N ITED STAT E S
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEAL S FOR THE EIGHTH CIRCUIT [M ay4, 2009] J USTICE B RE YE Rdelivered the opinion of the C o urt. A federal criminal statute forbidding “[a] g grava te d identity th eft” imposes a mandatory consecutive 2-year prison term upon in dividual s convicted of certain other crimes if, d u ring (or inrelation to) the commission of those other crimes, the offender “ knowinglytransfers, possess es, or uses, without lawful authority, a means of i dentificatio n of another person. ” 1 8U. S. C. §1028A(a)(1) (emphasis added). The questionis whether the statute requires the Government to show that the defendant kn ew that the “means of identification” he or sh e unlawfully transferre d, possessed, or used, in fact, belonged to “another person.” We conclude that it does. I A The statutory provision in question referenc es a s e t of predicate crimes, incl uding, for example, theft of govern

ment prope rty, fraud, or engagi ng in va rious unlawful activities r e lated to p a ssports, v i sas, and immigration. §1028A(c). It then provides that if any person who com

mits any of those other crime s (in doing so) “knowingl y2 FLORES-FIG UEROA v. UNITED STATE S Opinion of theCourt transfers, possess es, oruses, without lawful authority, a means of identification of another person,” the judge must add two ye ars’ imprisonment to the offender’s underlying sentence. §1028A(a)(1). All parties agree that the provi

sion applie s only whe r e the offender k n o w s that he is transferrin g , possessing, or usi n g some thi n g
. An d the Government reluctantly conced es that the offender lik el y must kno wthat he is transferri ng, possessing, or usi n g that some th ing without lawful authority. But they do not agree whether the pro vision requires that a defendant also k n ow that the somethi n g

he has u n lawfully transferred is, for example, a real ID belonging to another person rather than, say, afake ID ( i.e. , a group of numbers that does not correspond to any real So cial Security number)

. Petitioner Ignacio Flores-Figueroa argues that th e statute req u ires that the Govern ment prove that he kn ew that the “ m eans of identification” belonged to someone else, i.e. , was “a means of identification of another p erso n .” The Govern ment argue s that the s t atute does not impose this particu lar knowled g e requirement. The Government concedes that the statute usesthe word “kn o wingly,” 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 th at phrase (“ of another person”). B The facts of this case illustrate the legal problem. Igna

cio Flores-Figueroa is a citizen of Mexico. In 2000, to secure employment, Flores gave his empl oyer a false name, birth date, and Social Security number, along with a counterfeit alien regi strationcard. The Social Security number and the num ber on the alien registration ca rd were not th ose of a real person. In 2006, Flores presente d his employ er with new counterf e it Social Security a n d alien regist ration card s; these cards (unlike Flores’ old3 Cite as: 55 6 U

. S. ____ (2009) Opinion of theCourt alien registration card) used his real name. But this time the numbers on both cards were in fact num bers assigned to other people. Flores’ employer reported hi s request to U. S. Immigra

tion and C u stoms Enforcement. Customs discovered that the numbers on Flores’ new docu ments belonged to oth e r people. The United States then charged Flores with two predicate crimes, na mely, en tering the United Sta t es without inspection, 8 U. S. C. § 1325(a), and misusin g immigration documents, 18 U. S. C. §1546(a). And it charged hi m with aggrava t ed identity theft, 18 U. S. C. §1028A(a)(1), the crime at issue her e
. Flores mov e d for a jud g ment of acquittal on t h e “aggra

vated ident i ty theft” co unts. He cl aimed that the Govern

ment could not prove that he knew that the numbers on the counterfeit documents were nu mbers assigned to other people. The Government replied that it need not pro v e that knowl e dge, and t h e District Court ac cep t ed the Go v ernment’s argument. After a bench trial, the court fou n d Flores guilt y of the pre d icate crimes and aggravated iden

tity theft. The Court of Appea l s upheld the Distric t Court’s determination. 274 Fed. Appx. 501 (CA8 2008) (per curiam )

. Andwe grantedce rtiorari to consider th e “knowledge ” issue—a matter about which the Circuit s have disagreed. Compare United St at es v. Godin , 53 4 F. 3d 51 (CA1 2008) (knowledge re quirement applies to “of another person”); United S t ates v. Miranda -Lopez , 532 F. 3d 1034 (CA9 2008) (same); United Sta t es v. VillanuevaSotelo , 515 F. 3d 1234 (CADC 20 08) (same), with United Sta t es v. Mendoza-Gonzalez, 520 F. 3d 912 (CA8 2008) (knowledge requirement does not apply to “of another person”); Unit e dSt at es v. Hur t ad o , 508 F. 3d 603 (CA1 1 2007) (per curiam)(same); United States v. Montejo , 442 F. 3d 213 (CA4 2006) (same).4 FLORES-FIG UEROA v. UNITED STATE S Opinion of theCourt II There are strong tex t ual reasons for rejectingthe Gov

ernment’s position. As a matter of ordinary English grammar, it seems natural to read the statute’s wor d “knowingl y” as applyi ng to all the subsequ e ntly listed elements of the crime. The Government cannot easily claim that the word “knowingly” a pplies only to the stat

utes first four words, or even it s first seven. It makes little sense to read the provision’s language as heavily penalizing a person who “trans fers, posses s es, or uses, without lawful authority” a some th ing, but does not know, at the veryleast, that the “something” (perh a ps inside a box) is a “means of identification.” Would we apply a statute tha tmakes it unlawful “ knowinglyto posses s drugs” to aperson wh o steals a passenger’s bag witho u t knowing th at the bag has drugs inside? The Government claims more forcefully that the wo r d “knowingl y” applies to all butt h e statute’s last three words, i.e. , “of another person.” The statute, the Govern

ment says, does not require a prosecutor to s h ow that the defendant knowsthatthe means of identification the defendant has unlawfully used in fact belongs to another person. But how are we to s quare this reading with t h e statute’s language? In ordinary English, where a transitive verb has an object, listeners in most contexts assume that an adverb (such as kn owingly) th at modifies the transitive verb tells the listenerhow the subject pe rformed the entire action, including the object as set forth in the sentence. Thus, if a bank official says, “Smith knowingl y transferre d the funds to his brother’s accou n t,” we would normally understa n d the bank official’s statement as telling us that Smith kne w the accountwas his br other’s. No r would it matter if th e bank official said “Smith knowingl y transferred the funds to the account of his brother.” In either instance, if the bank official later told us that Smith did not know the5 Cite as: 55 6 U

. S. ____ (2009) Opinion of theCourt account belonged to Smith’s brother, we should be surprised. Of course, a statement that does not use the word “knowingl y” may be un clear about just wha t Smith knows

. Suppose Smith mails his bank draft to Tegucigalpa, whi c h (perhaps unbeknownst to Smith) is the capital of Hondu

ras. If the bank official says, “Smi th sent a b ank draft to the capital of Honduras,” he has expressed next to nothing about Smith’s knowledge of thatgeographic identity. B u t if the official were to say, “Smith knowinglysent a bank draft to th e capital of Honduras, ” then the official has suggested that Smith knows his geography. Similar examples abou n d. If a child knowingly takes a toy that belongs to his sibling, we assume th at the child not only kn ows that h e is taking something, but that he also knows that what h e is taking i s a toy andthat the toy belongs to his sibling. If we say t hat someon e knowingly ate a sandwich with cheese, we normally assume that the person kne wboth that he wa s eating a sandwich and th at it contained cheese. Or consider the Government’s own example, “ ‘John k n owingly discarded the homeworkof his sister.’ ” Brief for Un ited Stat es 9. The Government rightly poin ts out that this sentence “does not neces sarily ” imply that John knew whom the homework belonged to. Ibid. (emph a sis added). But that is what the sentence, a s ordinarilyused, does i m ply. At the same time, di ss imilar exa m ples are not easy to find. The Government says that “knowin gly” modifies only the verbs in the s t atute, while remainin g indifferent to the subje ct’s k n owle dge of at least part of the transitive verb’s object. In certain co ntexts, a listener might under

stand the word “knowingly” to be used in th at way. But the Govern ment has not provided us with a single exam

ple of a sen t ence that, when used in typical fa shion, would lead the hearer to believe t hat the word “kno wingly” mo di

fies only a t r ansitive verb without the full obj e ct, i.e. , that6 FLORES-FIG UEROA v. UNITED STATE S Opinion of theCourt it leaves the hearer gravely uncertain about the subject’s state of mind in respect to the ful lobject of the transitiv e verb in the sentence. The likely r e ason is that such sen

tences typically involve special contexts or themselves provide a more detailed explanation of background ci r cumstances that call fo r such a rea d ing. As J U S TICE ALIT O notes, the inquiry into a sentence’s meaning is a contex

tual one. See post , at 3 (opinion concurring in part and concurring in judgment). No special context is present here. See inf ra , at 8–1 0. The manner in whichthe courts ordinarily interpret criminal statutes is f u lly consistent with this ordinary English usage. That is to say courts ordinarily read a phrase in a criminal st atute that introduces the element s of a crime with the word “knowi ngly” as applying tha t word to each element. United S t a t esv. X-Citement Vid e o, Inc. , 513 U. S. 64, 79 (1994) (S TEVE NS , J., concurring). Fo r example, in Lipa rotav. UnitedSta t es , 47 1 U. S. 41 9 (1985), this Court interpreted a federal food st amp statute that said, “ ‘whoever knowingly uses, transfers, acquires, alters, or possesses coupons or authorization cards in any manner not authorizedby [law]’ ” is subject to imprison

ment. Id. , at 420, n. 1. The qu estion was whether th e word “knowingly” applied to th e phrase “in any manner not authorized by [law].” Id. , at 4 23. The Co urt held th a t it did, id. , at 433, despite the legal cliche “ignorance of the law is no ex cuse.” More recently, we ha d to in terpret a statute that penal

izes “[a]ny person who—(1) k n owingly transports or ship s using any means or facility of interstate or foreign com

merce by a n y means including by computer or mails, a n y visual depiction, if—(A) the produ c ing of suchv i sual depic

tion involves the use of a minor engaging in sexually explicit conduct.” 18 U. S. C. §2252(a)(1)(A); X-Citem e nt Video, supr a
. In issue was wheth e r the term “knowingl y” in paragrap h (1) modified the phrase “the use of a minor”7 Cite as: 55 6 U

. S. ____ (2009) Opinion of theCourt in subparagraph (A). Id. , at 69. T h e language in issue in X-Citem e nt Video(like the language in Liparota) was more ambiguous than the la nguage here not on ly because th e phrase “the use of a minor” was not the direct object of the verbs modified by “kn o wingly,” b u t also because it ap

peared 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 th e Government’s position. Nonetheles s, we again found that the in tent element applied to “the use of a minor.” Id

. , at 72, and n. 2. Again the Govern ment, while pointing to what it believes ar e special feat ures of each of thes e c a ses, provides us with no convincing counterexample, although there may be such statutory in stances. The Government correc t ly poin ts out that in these cases
more was at issue than proper use of the English lan

guage. But if more is at issue here, what is i t? The Gov

ernment makes a further textual argument, a complex argument b a sed upon a related provision of the statute. That provis ion applies “[a]ggravat e d identity theft” wher e the predicate crime is terrorism. See §1028A (a)(2). The provision uses the sa me language as the provision before us up to the end, where it adds the words “or a false iden

tification document.” Thus, it penalizes anyone who “knowingl ytransfers, possesses , or uses, without lawful authority, ameans of identification of another person or a false identif i cation 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’ ” “ ‘wit h out lawfu lauthority ,’ ” must know that the document eit h er (a) belongs “ ‘to an

other person’ ” or (b) is a “ ‘false identification document’ ”8 FLORES-FIG UEROA v. UNITED STATE S Opinion of theCourt because “ ‘ there ar e no other choices. ’ ” Brief for United States 14 (emphasis a dded). Step Three: Requiring the offender to know thatt h e “means of identification” belongs to another person would consequently be superfluous in this terrorism provision. Step Four: We should not inter

pret 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 circumstanc es (where the ID belongs to another person; wh ere the ID i s false) are the only two circumstances possibly present when a def e ndant (in this particu lar context) unlawfully uses a “means of identification,” then why list them at all? Why not ju st stop afte r criminaliz ing the knowing unlaw

ful 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 circum

stances are not the on ly two circumstances possibly pre

sent when a defendant unlawfully uses a “means of identi

fication.” One could, for example, verbally provide a sell er or an employer with a made-up Social Security number, not an “ide ntification document,” and the nu mber verba lly transmittedto the seller or employer might, or might not , turn out to belong to another person. The word “ k now ingly” applied to the “other person” requirement (even in a statute tha tsimilarly penalizes u s e of a “false identific a tion document”) would not be surplus. The Government also considers the statute’s purpose to be a circum s tance showing that t h e linguistic contex t he re is special. It describes that pur p ose as “provid[ing] en

hanced protection for individuals whose iden tifying infor

mation is used to facilitate the co mmission of crimes.” Id. , at 5. And it points out that wit h out the knowledge re

quirement, potential of fenders will take great care to avoid wrongly using IDs that belong to others, thereby enhanc

-9 Cite as: 55 6 U

. S. ____ (2009) Opinion of theCourt ing the protection that the statute offers. The question, however, is whether Congress intended to achieve this enhanced protection by permitti ng convictio n of those who do not know the ID th ey unlawfully use refers to a real person, i.e. , those who do not intendto cause thi s f u r t h e rh a r m
. An d , i nr e s p e ct 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 offe r the Government a degree of s u pport. The relevant House Report refers, forexample, both to “ide n tity theft” ( u se of an ID belo ngin g to someone els e ) an d to “identity fr aud” (use of a false ID), often without distin

guishing between the two. See, e. g., H. R. Re p. No. 108– 528, p. 25 (2004) (statement of Rep. Coble). And, in equat

ing fraud a n d theft, Congress might have m e ant the stat

ute to coverboth—at least where t h e fraud ta kes the for m of using a nID that (without th e offender’s knowledge) belongs to s o meone els e
. On the other hand, Congress sepa rated the fraud crime from the theft crime inthe statute itself. Thetitle of one provision (n ot here at issue) is “Fraud and related activity in connection with id entification documents, authentic a tion features, and inf o rmation.” 18 U. S. C. §1028. T h e title of another provision (the provi s ion here atissue) uses the words “identity theft. ” §1028A (emphasis added). Moreover, the example s of theft th at Congress gives in th e legislative history all i nvolve instances where the offend er would know that what he has taken identifies a different real person. H. R. Rep. No. 108–52 8, at 4–5 (id e ntifying as examples of “identity theft” “ ‘du m pster divi ng,’ ” “acces s ing information that was originally collected for an autho r ized purpose,” “hack[in g] into com p uters,” an d “steal[ing] paperwor k likely to contain personal information”). Finally, and perhaps of greatest practical importance , there is the difficulty in many circumstances of proving10 FLORES-FIG UEROA v. UNITED STATE S Opinion of theCourt beyond a reasonable doubt that a defendant ha s the neces

sary knowl e dge. Take an instanc e in which an alienwho unlawfully entered the United States gives an employe r identification documents that infact belong to others. How is the Government to pro v e that the defendant knew that this was so? The Government may be able to show that suchadefendant knew the papers were not his. Bu t 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 alo n g with the defendant’s necessary gu ilt of a predicate crim e and the defendant’s necessary knowledge that he ha s acted “with o ut lawful authority,” make it re asonable, in the Govern ment’s view, to read the statute’s language as dispensing with the k n owledge requirement. We do notfind this argument sufficient, however, to turn the tid e in the Go vernment’s favor. For one thing, in the classic case of identity theft, intent is generally n o t difficult to prove. For example, where a de fendant has used another person’s identification information to get access to that person’s bank accou n t, the Government can prove k n owledge with little difficulty. The same is true when the defendant has gone through someon e else’s trash to find dis c arded cre dit card a n d bank statements, or pretends to be from the victim’s bank and requests per

sonal ident i fying information. I n deed, the examples of identity theft in the legislative history (dum pster diving , computer hack ing, and the lik e) are all examples of the types of cla ssic identity theft whe r e intent should be rela

tively easy to prove, and there will be no practical e n forcement problem. For another t h ing, to the extent tha t Congress may have been concerned about criminalizing the conduct of a broader class of in dividuals, the concerns about practical enforceability are insufficientto outweigh the clarity of the text. Similar interpretati ons that we have given other similarly phras e d statutes also created11 Cite as: 55 6 U

. S. ____ (2009) Opinion of theCourt practical enforcement problems. See, e.g., X-Citemen t Video, 513 U. S. 64; Liparota , 4 71 U. S. 41 9. But ha d Congress placed conclusive weight upon practical en

forcement, the statute would like l y not read the way i t now reads. Instead, Congress used the word “knowingl y” followed by a list of off e nse elemen ts. And we cannot fin d indications in statemen ts of its purpose or in t h e practical problems of enforcement sufficient to overco me the ordi

nary meaning, in English or through ordinary interpretive practice, of the words t hat it wrote

. We conclud e that §102 8A(a)(1) requires the G o vernmen t to show that the defendant k n ew that the me ans of identi

fication at issue bel o n g ed to another person. The judg

ment of the Court of Appeals is reversed, and the case is remanded for furtherproceedings consistent with th is opinion. It is so orde red._________________

_________________ 1 Cite as: 55 6 U

. S. ____ (2009) Opinion of S CALIA , J. 

## SUPREME CO URT O FTHE UNI TED STATES

No. 08–1 08
IGNACI O CARL OS F L OR ES-FI G UE ROA, PETITIONER v. U N ITED STAT E S
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEAL S FOR THE EIGHTH CIRCUIT [M ay4, 2009] J USTICE S CALIA , wit hwhom J USTICE T HOMA Sjoins, concurring i npart and concurring i nthe judgm e nt. I agree with the Court that to convict petit i oner for “knowingl ytransfer[rin g], possess[ing], or us[ing], without lawful authority, a means of identification of another person,” 18 U. S. C. § 1028A(a)(1), the Government mus t 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, a t4

. E v e nt h e Government must concede that. See United Statesv. Villanueva- Sotelo , 515 F. 3d 123 4, 1237 (CADC 2008) (“According to the government, this text is unambiguous: the statute’s knowledge requirement extends only so far as ‘means of i d entification’ ”). 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 whi c h limits th at 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 Co urt is not content to stop at the sta t ute’s text , and I do not join that f u rtherport ion of the Court’s opin

ion. First, the Court r e lies in part on the principle that “courts ordi narily read a phrase ina criminal statute that introduces the elements of a crime with the word ‘kno w -2 FLORES-FIG UEROA v. UNITED STATE S Opinion of S CALIA , 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 h a ve not can

vassed all the cases and am hence agnostic. If it is mean t, however, as a normative description of what courts shoul d ordinarily do when i n terpreting such statutes—and the reference to J USTICE S TE VEN S ’ concurring opinion in UnitedStatesv. X-Citement Vid e o, Inc. , 513 U. S. 64, 7 9 (1994), suggests as mu ch—then I surely do n o t agree. The structu re of the text in X-Citem e nt Video plainly separated the “use of a minor” element from the “kn o wingly” re

quirement, wherefore I thought (a nd think) that case wa s wrongly de cided. See id. , at 80–81 (S CALI A , J., dissenting). It is one thing to infer t h e common-law traditio nof a mens rea requirement where Congress has not a d dressed the mental ele m ent of a crime. See Stapl esv. UnitedS t ates , 511 U. S. 6 00, 605 (1994); UnitedSta t esv. United Sta t es Gypsum Co. , 438 U. S. 422, 437–438 (1978). It is som e thing else to expand a mens rea requirement that the statutory text has carefully limited

. I likewise cannot join the Court’s discussionof the (as usual, inconclusive) legislative history. An te, at 9. Rely

ing on the statement of a single Member of Congress or an unvoted-upon (and for all we know unread) Committee Report to e x pand a s t a t ute beyond the limits its text sug

gests is always a dubio u s enterpri se. And consulting those incunabula with an eye to making criminal what the text would otherwise permit is even more suspect. See Uni t ed Sta t esv. R. L. C. , 503 U. S. 291, 307–309 (1 992) (S CALI A , J., concurri ng in part and concurring in judgment). In

deed, it is not unlike the practice of Caligula, who report

edly “wrote his laws in a very s m all character, and hu ng them up upon high pillars, the more effectually to ensnare the people,” 1 W. Black s tone, Commentaries on the Laws of England 46 (1765). The statut e’s text is clear, and I would reverse the judgment of the Court of Appeals on that ground alone._________________

_________________ 1 Cite as: 55 6 U

. S. ____ (2009) Opinion of ALIT O , J. 

## SUPREME CO URT O FTHE UNI TED STATES

No. 08–1 08
IGNACI O CARL OS F L OR ES-FI G UE ROA, PETITIONER v. U N ITED STAT E S
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEAL S FOR THE EIGHTH CIRCUIT [M ay4, 2009] J USTICE ALI T O , concurring in part and concurring in the judgment. While I am in general a greement with the opin ion of the Court, I wri t e separately because I am concerned that th e Court’s opi n ion may be read by some as adopting an overly rigid rule o f statutor y constructio n
. The Court says th at “[i]n ordinary En glish, where a transitive verb has an object, listeners in most contexts assume that an adverb (such as kn owingly) th at modifies the transitive verb tells the listenerhow the subject pe rformed the entire action, including t h e object as set forth inthe sentence.” Ante , a t 4. The Court adds that counterexamples are “not easy to find,” ante , at 5, and I s u spect that the Court’s opinion will be cited for the proposition that the mens reaof a federal criminal statute nearly always applies to every element of the offense. I think that the Court’s point about ordinary Englis h usage is ov erstated. Examples of sentences that do not conform to the Court ’ s rule are n o t hardto i m agine. F o r example: “The mugger k n owingly assaulted two people in the park—an employe e of compa n y X and ajogger from town Y.” A person hearing th is sentence would not likely assume that the mu gger knew about the first victi m’s employer or the second victim’s ho me town. What matters in this example, and the Court’s, is context.2 FLORES-FIG UEROA v. UNITED STATE S Opinion of ALIT O , J. More to th e point, ordinary writ ers do not often con

struct the p a rticular ki nd of sentence at issue here, i.e. , a complex sentence in which it is important to determine from the sentence itself whether t h e adverb denoting th e actor’s inte nt applies to every ch aracteristicof the sen

tence’s dire ct object. S u ch sentences are a staple of crimi

nal codes, b u t in ordinary speech, a different formulation is almost always used when the speak e r wants to be clear on the point. For exa m ple, a speaker mightsay: “FloresFigueroa used a Social Secu rity number that he knew belonged to some oneelse” or “Flores-Figueroa used a Social Security number that ju st happened to belong to a real person.” But it is difficu lt to say with th e confidence the Court c o nveys thatthere is an “ordinary” understand

ing of the usage of the phrase at issue in this c a se. 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 reaapplies to all the elements o f an offense, but it mu st be recognized that there are in

stances in which conte x t may well rebut that presumption. For example, 18 U. S. C. §2423(a) makes it unlawful to “knowingl ytranspor[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 sexu al activity for whichany person can be charge d with a criminal off e n s e.” The Courts of Appeals have uniformly held that a defendant need not know the vic

tim’s age to be guiltyu n der this st atute. See, e.g. , United Sta t esv. Griffi th , 28 4 F. 3d 338, 350–351 (CA2 200 2); UnitedS t atesv. Taylor , 239 F. 3d 994, 997 (CA9 2001); cf. United S t a t esv. Chin , 981 F. 2d 1275, 1280 ( CADC 1992) (Ginsburg, J.) (holding that 21 U. S. C. §861(a)(1), which makes it u n lawful to “knowingl yand inten t ionally . . . employ, hire, use, persuade, induce, entice, or coerce, a person under eighteenyears of a g e to violat e” drug laws, does not require the defendant to have knowledge of the3 Cite as: 55 6 U

. S. ____ (2009) Opinion of ALIT O , J. minor’s age). Similarly, 8 U. S. C. §1327 makes it unla w ful to “knowingly ai[d] or assis[t] any alien inadmissible under secti on 1182(a)(2) (insofar as an alien inadmissib l e under such section has been convicted of an aggra v ated felony) .

. . to enter the United States.” The Courts of Appeals have held that the term “knowingl y” in this con

text does not require the defendant to know that the alien had been convicted of an aggravated felony. See, e.g. , United Statesv. Flores

- G ar cia , 198 F. 3d 1119, 1121–1123 (CA9 2000); United S t a t es v. Figueroa , 165 F. 3d 111, 118– 119 (CA2 1998). In the present case, however, the Governme nt has not pointed to contextual features that warran tinterpreting 18 U. S. C. §1028A(a)(1) in a s i milar way. Indeed, the Government’s interpr e tation leads to exceedingly odd results. Under that interpre tati on, if adef e ndant uses a made-up S o cial Security number without having an y reason to know wheth e r it belongs to a real person, the defendant’s liability under §10 28A(a)(1) depends on chance: If it turns out that the n u mber belongs to a real person, two years will be added to the defendant’s sen

tence, but if the defendant is lucky and the number does not belong to another person, the s t atute is not violated. I therefore concur in the judgment and join the opini o n of the Court except ins o far as it may be read to adopt an inflexible r u le of const r uction tha tcan rarelybe overcome by contextu al features pointing to a contrary reading.