How Much Knowledge Makes a Crime?

On Oct. 20, 2008, the Supreme Court agreed to weigh in on the issue. See Flores-Figueroa v. United States, No. 08-108. This is the third time in only five years that the Court is addressing the knowledge element of a federal criminal crime. Last term, the Court ruled that “knowingly” in a child pornography statutes applied to every element of a multi-provision statute. Williams v. United States, ' U.S. ', 182 S. Ct. 1830, 1839 (2008). In 2005, it held that “knowingly” in the obstruction of justice statute (18 U.S.C. ' 1512(b)(2)(A) and (B)) modifies more than just the immediate verbs. Arthur Andersen LLP v. United States, 544 U.S. 696 (2005). Now, the question before the Court is whether an individual can violate the AIT statute even if he does not know that the identification he's misusing in fact belongs to another person.

The government is now urging the Court to break with its prior two decisions and hold the word “knowingly” in the AIT statute modifies only the verbs (acts) that immediately follow it in the text. The Court's resolution of this issue may provide a persuasive ' if not binding ' interpretation of this and other statutes that arguably share its same basic structure ' that a wrongdoer “knowingly” engaged in an act or a series of acts which violated the law. A limited application of the word “knowingly” might provide the government with a substantial upper hand in criminal law enforcement for years to come.

AIT As a Weapon Against Illegal Immigrants

Illegal immigrants often need a means of identification (e.g., a Social Security or Alien Registration number) in order to obtain employment in the United States. Because of their status in this country, many resort to phony names and numbers. Those who do risk prosecution for myriad federal crimes. See, e.g., 18 U.S.C. ' 1546(b)(1) (fraud or misuse of an identification document).

The AIT supplements the preexisting legal framework with a mandatory two-year prison sentence to anyone who, during or in relation to committing any one of a few specified felonies, “knowingly transfers, possesses, or uses ' a means of identification of another person.” 18 U.S.C. ' 1028A(a)(1) (emphasis added).

Federal prosecutors ' and three circuit courts ' interpret the statute so that the word “knowingly” does not apply to “of another person.” Accordingly, they are charging illegal immigrants with aggravated identity theft even if the defendants did not know that they were using numbers assigned to other people. Thus, using a false number has become a two-year gamble: In randomly selecting a phony Alien Registration number, a lucky illegal immigrant will pick one that has not been assigned, but an unlucky illegal immigrant will stumble into an AIT violation by picking someone else's number.

Despite this seemingly arbitrary distinction, the Department of Justice is now using the threat of AIT's prison term to secure plea agreements for other offenses. As one defense lawyer described, AIT is wielded as the “hammer over everyone's head.” Jerry Markon: Justices May Take Immigration Cases, Wash. Post, Oct. 19, 2008 at A2.

Split in the Circuits

The six circuits that have spoken are evenly divided. The Fourth, Eighth, and Eleventh Circuits do not require that a defendant know that the means of identification that he misused belonged to someone else. These Circuits appear to rely upon grammar. See, e.g., United States v. Hurtado, 508 F.3d 603, 607 (11th Cir. 2007); United States v. Montejo, 442 F.3d 213, 215 (4th Cir. 2006). According to them, “good usage” dictates that the adverb “knowingly” in ' 1028A(a)(1) modify only the immediately following verbs “transfers, possesses or uses,” and not apply to the trailing predicate “of another person.”

In the Eighth Circuit case now before the Supreme Court, defendant Flores-Figueroa, a Mexican citizen, purchased and used false documents in order to obtain employment in the United States. Although he clearly knew the documents were false, the government did not prove that he knew that the identification numbers belonged to someone else. The Eighth Circuit held that he did not need to know.

Although the Supreme Court has ruled in similarly worded statutes that the modifier “knowingly” extends throughout the subsequent predicates, see, e.g., Arthur Andersen LLP and United States v. X-Citement Video, Inc., 513 U.S. 64 (1994), the Fourth, Eighth, and Eleventh Circuits appear to distinguish those rulings on the grounds that the Supreme Court, in each case, willingly bent grammatical rules to prevent the unintended criminalization of innocent behavior ' something the three Circuits did not believe was an issue with the aggravated identity theft statute.

For example, in X-Citement Video, Inc., the Court interpreted 18 U.S.C. ' 2252(a), which proscribes knowingly transporting, shipping, receiving, distributing, and reproducing child pornography, in a way that extended the knowledge requirement beyond transporting to that fact that the materials shipped were child pornography. Otherwise, the Court said, the statute would allow prosecution of individuals who had no idea that they were even dealing with illicit material, a result it found “absurd.”

As the Fourth, Eighth, and Eleventh Circuits see it, aggravated identity theft is different. There is no need to divert from the normal interpretive rules because following them would not unwittingly criminalize otherwise innocent conduct. To the contrary, a defendant in an aggravated identity theft case must have committed a predicate felony and thus already has a guilty mind.

The D.C., First, and Ninth Circuits, by contrast, require that a defendant actually know that he used someone else's ID. These Circuits have concluded that the aggravated identity theft statute is ambiguous, essentially because “it is not at all clear how far down the sentence the word 'knowingly' is intended to travel.” Villanueva-Sotelo, 515 F.3d 1234, 1241 (D.C. Cir. 2008); United States v. Miranda-Lopez, 532 F.3d 1034, 1038-39 (9th Cir. 2008); see also, U.S. v. Godin, 534 F.3d 51, 58 (1st Cir. 2008).

The D.C. Circuit, relying upon traditional interpretive tools such as legislative history and comparisons to analogous statutes, concluded that “knowingly” applies to the phrase “of another person.” It also found that the rule of lenity ' which dictates that ambiguities about the scope of a criminal statute should be resolved in favor of the defendant ' independently mandated that the word “knowingly” apply to the phrase “of another person.”

The First and Ninth Circuits, which were not as persuaded by the results of their interpretive efforts, found the statute ambiguous as to whether the word “knowingly” should reach the end of the sentence. Given that ambiguity, they used the rule of lenity to resolve the ambiguity in favor of the defendants.

Hung up on Grammar

In our view, the circuit courts have focused too narrowly on the grammar of the statute without regard to the common-sense intent. As the First Circuit aptly noted in Godin, the courts' job is to apply “a criminal statute and not an English textbook.”

Focusing solely on the AIT's grammar ignores Congress's clear intent to deter a “theft,” typically defined as “the felonious taking and removing of another's personal property with the intent of depriving the true owner of it.” BLACK'S LAW DICTIONARY 1516 (8th ed. 2004). By declining to apply the word “knowingly” to the phrase “of another person,” the courts are stripping away an essential element of a theft (that the offender intend to deprive the true owner of something). Put simply, if an individual does not know that what he has taken belongs to someone else, he cannot have intended to deprive the true owner of it.

Potential Fallout

The Supreme Court's interpretation of whether “knowingly” modifies the phrase “of another person” will undoubtedly influence the efficacy of the Department of Justice's recent crackdown on illegal immigration through AIT.

But this interpretation may also bleed over into other prosecutions. Numerous statutes ' for crimes ranging from witness tampering, to fraud and false statements, to drug sales, to child pornography ' use some version of the general statutory structure used by the AIT statute. If the knowledge requirement is applied throughout those statutes, then establishing sufficient mens rea may be a difficult burden on the government. But, if “knowingly” applies only to the acts that immediately follow, then the mens rea requirement for many of these statutes may be unduly diluted. Further, the mens rea requirements of other, differently structured, statutes may also be impacted by the Court's ruling. See, e.g., the health care Anti-Kickback Statute, 42 U.S.C. ' 1320a-7b(b).

Before embarking on legislation to redress the recent crises, Congress and the new administration should heed the guidance likely to come from the Supreme Court's interpretation in Flores-Figueroa. Practitioners should also take heed, because if the Court follows the narrow interpretation adopted by the Fourth, Eighth, and Eleventh Circuits, and the Court's opinion is read broadly, the mens rea requirement may be diminished throughout federal criminal law.

Anthony M. Alexis ([email protected]) is a partner in the D.C. office of Mayer Brown, LLP and previously served as the Deputy Chief of the Federal Major Crimes Section in the United States Attorney's Office for the District of Columbia. Tyler E. Gellasch is a senior associate in Mayer Brown's litigation group.

The unprecedented crisis in capital markets will put pressure on the new administration and Congress not only to stabilize the economy, but also to punish perceived wrongdoers. We can expect increased criminal and civil enforcement by the executive branch and, in the longer term, new criminal statutes to deter future wrongdoing. But when Congress passes a new statute in a prosecution-friendly atmosphere, it should be wary of the potential for overly aggressive prosecutors to misuse it.

A perfect example is the Aggravated Identity Theft (AIT) statute, 18 U.S.C. ' 1028A(a)(1). The government's aggressive use of AIT to combat illegal immigration has reached beyond the statutes's admirable goals in a way that dilutes the mens rea of the crime and has led to inconsistent law.

Certiorari Granted

On Oct. 20, 2008, the Supreme Court agreed to weigh in on the issue. See Flores-Figueroa v. United States, No. 08-108. This is the third time in only five years that the Court is addressing the knowledge element of a federal criminal crime. Last term, the Court ruled that “knowingly” in a child pornography statutes applied to every element of a multi-provision statute. Williams v. United States, ' U.S. ', 182 S. Ct. 1830, 1839 (2008). In 2005, it held that “knowingly” in the obstruction of justice statute (18 U.S.C. ' 1512(b)(2)(A) and (B)) modifies more than just the immediate verbs. Arthur Andersen LLP v. United States , 544 U.S. 696 (2005). Now, the question before the Court is whether an individual can violate the AIT statute even if he does not know that the identification he's misusing in fact belongs to another person.

The government is now urging the Court to break with its prior two decisions and hold the word “knowingly” in the AIT statute modifies only the verbs (acts) that immediately follow it in the text. The Court's resolution of this issue may provide a persuasive ' if not binding ' interpretation of this and other statutes that arguably share its same basic structure ' that a wrongdoer “knowingly” engaged in an act or a series of acts which violated the law. A limited application of the word “knowingly” might provide the government with a substantial upper hand in criminal law enforcement for years to come.

AIT As a Weapon Against Illegal Immigrants

Illegal immigrants often need a means of identification (e.g., a Social Security or Alien Registration number) in order to obtain employment in the United States. Because of their status in this country, many resort to phony names and numbers. Those who do risk prosecution for myriad federal crimes. See, e.g., 18 U.S.C. ' 1546(b)(1) (fraud or misuse of an identification document).

The AIT supplements the preexisting legal framework with a mandatory two-year prison sentence to anyone who, during or in relation to committing any one of a few specified felonies, “knowingly transfers, possesses, or uses ' a means of identification of another person.” 18 U.S.C. ' 1028A(a)(1) (emphasis added).

Federal prosecutors ' and three circuit courts ' interpret the statute so that the word “knowingly” does not apply to “of another person.” Accordingly, they are charging illegal immigrants with aggravated identity theft even if the defendants did not know that they were using numbers assigned to other people. Thus, using a false number has become a two-year gamble: In randomly selecting a phony Alien Registration number, a lucky illegal immigrant will pick one that has not been assigned, but an unlucky illegal immigrant will stumble into an AIT violation by picking someone else's number.

Despite this seemingly arbitrary distinction, the Department of Justice is now using the threat of AIT's prison term to secure plea agreements for other offenses. As one defense lawyer described, AIT is wielded as the “hammer over everyone's head.” Jerry Markon: Justices May Take Immigration Cases, Wash. Post, Oct. 19, 2008 at A2.

Split in the Circuits

The six circuits that have spoken are evenly divided. The Fourth, Eighth, and Eleventh Circuits do not require that a defendant know that the means of identification that he misused belonged to someone else. These Circuits appear to rely upon grammar. See, e.g., United States v. Hurtado , 508 F.3d 603, 607 (11th Cir. 2007); United States v. Montejo , 442 F.3d 213, 215 (4th Cir. 2006). According to them, “good usage” dictates that the adverb “knowingly” in ' 1028A(a)(1) modify only the immediately following verbs “transfers, possesses or uses,” and not apply to the trailing predicate “of another person.”

In the Eighth Circuit case now before the Supreme Court, defendant Flores-Figueroa, a Mexican citizen, purchased and used false documents in order to obtain employment in the United States. Although he clearly knew the documents were false, the government did not prove that he knew that the identification numbers belonged to someone else. The Eighth Circuit held that he did not need to know.

Although the Supreme Court has ruled in similarly worded statutes that the modifier “knowingly” extends throughout the subsequent predicates, see, e.g., Arthur Andersen LLP and United States v. X-Citement Video, Inc. , 513 U.S. 64 (1994), the Fourth, Eighth, and Eleventh Circuits appear to distinguish those rulings on the grounds that the Supreme Court, in each case, willingly bent grammatical rules to prevent the unintended criminalization of innocent behavior ' something the three Circuits did not believe was an issue with the aggravated identity theft statute.

For example, in X-Citement Video, Inc., the Court interpreted 18 U.S.C. ' 2252(a), which proscribes knowingly transporting, shipping, receiving, distributing, and reproducing child pornography, in a way that extended the knowledge requirement beyond transporting to that fact that the materials shipped were child pornography. Otherwise, the Court said, the statute would allow prosecution of individuals who had no idea that they were even dealing with illicit material, a result it found “absurd.”

As the Fourth, Eighth, and Eleventh Circuits see it, aggravated identity theft is different. There is no need to divert from the normal interpretive rules because following them would not unwittingly criminalize otherwise innocent conduct. To the contrary, a defendant in an aggravated identity theft case must have committed a predicate felony and thus already has a guilty mind.

The D.C., First, and Ninth Circuits, by contrast, require that a defendant actually know that he used someone else's ID. These Circuits have concluded that the aggravated identity theft statute is ambiguous, essentially because “it is not at all clear how far down the sentence the word 'knowingly' is intended to travel.” Villanueva-Sotelo, 515 F.3d 1234, 1241 (D.C. Cir. 2008); United States v. Miranda-Lopez , 532 F.3d 1034, 1038-39 (9th Cir. 2008); see also, U.S. v. Godin , 534 F.3d 51, 58 (1st Cir. 2008).

The D.C. Circuit, relying upon traditional interpretive tools such as legislative history and comparisons to analogous statutes, concluded that “knowingly” applies to the phrase “of another person.” It also found that the rule of lenity ' which dictates that ambiguities about the scope of a criminal statute should be resolved in favor of the defendant ' independently mandated that the word “knowingly” apply to the phrase “of another person.”

The First and Ninth Circuits, which were not as persuaded by the results of their interpretive efforts, found the statute ambiguous as to whether the word “knowingly” should reach the end of the sentence. Given that ambiguity, they used the rule of lenity to resolve the ambiguity in favor of the defendants.

Hung up on Grammar

In our view, the circuit courts have focused too narrowly on the grammar of the statute without regard to the common-sense intent. As the First Circuit aptly noted in Godin, the courts' job is to apply “a criminal statute and not an English textbook.”

Focusing solely on the AIT's grammar ignores Congress's clear intent to deter a “theft,” typically defined as “the felonious taking and removing of another's personal property with the intent of depriving the true owner of it.” BLACK'S LAW DICTIONARY 1516 (8th ed. 2004). By declining to apply the word “knowingly” to the phrase “of another person,” the courts are stripping away an essential element of a theft (that the offender intend to deprive the true owner of something). Put simply, if an individual does not know that what he has taken belongs to someone else, he cannot have intended to deprive the true owner of it.

Potential Fallout

The Supreme Court's interpretation of whether “knowingly” modifies the phrase “of another person” will undoubtedly influence the efficacy of the Department of Justice's recent crackdown on illegal immigration through AIT.

But this interpretation may also bleed over into other prosecutions. Numerous statutes ' for crimes ranging from witness tampering, to fraud and false statements, to drug sales, to child pornography ' use some version of the general statutory structure used by the AIT statute. If the knowledge requirement is applied throughout those statutes, then establishing sufficient mens rea may be a difficult burden on the government. But, if “knowingly” applies only to the acts that immediately follow, then the mens rea requirement for many of these statutes may be unduly diluted. Further, the mens rea requirements of other, differently structured, statutes may also be impacted by the Court's ruling. See, e.g., the health care Anti-Kickback Statute, 42 U.S.C. ' 1320a-7b(b).

Before embarking on legislation to redress the recent crises, Congress and the new administration should heed the guidance likely to come from the Supreme Court's interpretation in Flores-Figueroa. Practitioners should also take heed, because if the Court follows the narrow interpretation adopted by the Fourth, Eighth, and Eleventh Circuits, and the Court's opinion is read broadly, the mens rea requirement may be diminished throughout federal criminal law.

Anthony M. Alexis ([email protected]) is a partner in the D.C. office of Mayer Brown, LLP and previously served as the Deputy Chief of the Federal Major Crimes Section in the United States Attorney's Office for the District of Columbia. Tyler E. Gellasch is a senior associate in Mayer Brown's litigation group.