In Flores-Figueroa v. United States, No 08-108, in a rare 9-0 shutout, Justice Breyer writing for the Supreme Court addressed and resolved the aggravated identity theft statute as follows:
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. . . 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.
Now, the discussion between the ellipses gets pretty dense, and although I am not a student of Justice Breyer’s writings consider these lilies:
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 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.
Everyone got that? Justice Scalia wrote a concurrence just to throw a few written punches at his colleagues. He stuck to a more plain English analysis.