Flores-Figueroa v. United States

(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 commis

sion 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 Flores-

Figueroa, a Mexican citizen, gave his employer counterfeit Social Se

curity 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 Govern

ment 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 mod

ify 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, “know

ingly” is naturally read as applying to all the subsequently listed

elements of the crime. Where a transitive verb has an object, listen

ers 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 or

dinary 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 pro

vision 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 prac

tice, 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 con

curring in part and concurring in the judgment.

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, Wash

ington, 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 govern

ment property, fraud, or engaging in various unlawful

activities related to passports, visas, and immigration.

§1028A(c). It then provides that if any person who com

mits 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 provi

sion 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. Igna

cio 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. Immigra

tion 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 “aggra

vated identity theft” counts. He claimed that the Govern

ment 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 Gov

ernment’s argument. After a bench trial, the court found

Flores guilty of the predicate crimes and aggravated iden

tity 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. Villanueva-

Sotelo, 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 Gov

ernment’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 stat

utes 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 Govern

ment 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 Hondu

ras. 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 under

stand the word “knowingly” to be used in that way. But

the Government has not provided us with a single exam

ple of a sentence that, when used in typical fashion, would

lead the hearer to believe that the word “knowingly” modi

fies 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 sen

tences typically involve special contexts or themselves

provide a more detailed explanation of background cir

cumstances that call for such a reading. As JUSTICE ALITO

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 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 imprison

ment. 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 penal

izes “[a]ny person who—(1) knowingly transports or ships

using any means or facility of interstate or foreign com

merce by any means including by computer or mails, any

visual depiction, if—(A) the producing of such visual depic

tion 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 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 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 lan

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

ernment 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 iden

tification 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 an

other 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 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 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 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 only two circumstances possibly pre

sent when a defendant unlawfully uses a “means of identi

fication.” 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 “know

ingly” applied to the “other person” requirement (even in a

statute that similarly penalizes use of a “false identifica

tion 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] en

hanced protection for individuals whose identifying infor

mation is used to facilitate the commission of crimes.” Id.,

at 5. And it points out that without the knowledge re

quirement, 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 “iden

tity theft” (use of an ID belonging to someone else) and to

“identity fraud” (use of a false ID), often without distin

guishing between the two. See, e.g., H. R. Rep. No. 108–

528, p. 25 (2004) (statement of Rep. Coble). And, in equat

ing fraud and theft, Congress might have meant the stat

ute 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, authentica

tion 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,’ ” “access

ing information that was originally collected for an author

ized 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 neces

sary 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 per

sonal 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 rela

tively easy to prove, and there will be no practical en

forcement 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 en

forcement, 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 ordi

nary 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 identi

fication at issue belonged to another person. The judg

ment 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 opin

ion. 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 can

vassed 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” re

quirement, 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 some

thing 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. Rely

ing 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 sug

gests 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). In

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

edly “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 con

struct 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 sen

tence’s direct object. Such sentences are a staple of crimi

nal 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: “Flores-

Figueroa 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” understand

ing 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 in

stances 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 vic

tim’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 unlaw

ful 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 con

text 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 sen

tence, 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.