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
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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.