Via Scotusblog, Kevin Russell et al. have recently filed a petition for certiorari asking the Supreme Court to decide the meaning of 28 U.S.C. § 1028A(a)(1), which defines aggravated identity theft to occur where the thief in question “knowingly transfers, possess, or uses, without lawful authority, a means of identification of another person.” At issue is whether the scienter requirement (”knowingly”) extends merely to the act of transferring, possessing or using the means of identification, or whether it also requires the individual to know that the means of identification belongs to another person. Apparently, the Eight Circuit, along with several others, has ruled that knowingly modifies the verbs “transfers, possesses or uses,” and presumably modifies the part about a means of identification, but does not modify the part that says “of another person.” I’m not sure which is more worse, the legal implications of this theory or the grammatical ones.
The grammatical analysis is simpler, though, so I’ll start with the low-hanging fruit. Modifiers, be they adjectives or adverbs (two parts of speech I think ought to be considered one, but that’s another discussion), sometimes modify adjoining words, and other times they modify entire phrases. They don’t modify portions of such phrases, as knowingly would have to do in the above example in order to modify “transfers, possess, or uses … a means of identification…” without also modifiying but one cannot reasonably argue that it modifies the remainder of that phrase, “of another person.” Either it modifies “transfers, possesses or uses” alone, or it modifies everything from “transfer” all the way to “person.” In other words, to the extent that we rely on grammar to determine the meaning of knowingly, the statute either requires the defendant to know he is transferring/possessing/using an ID that belongs to someone else, or it merely requires him to know he is transferring/possessing/using something - which, for all he knew at the time of the offense, may not be a form of identification at all.

A similar issue arose some years back in U.S. v. X-Citement Video, Inc., 513 U.S. 64 (1994). There, a scumbag video store owner was caught selling “adult” videos featuring a well-known non-adult “adult” film actress, Traci Lords. Lords’s outing as a non-adult “adult” film star was well-publicized at then time, so there was little room for doubt that the defendants knew they were peddling kiddie porn. However, they convinced the Ninth Circus to reverse their conviction by declaring the Protection of Children Against Sexual Exploitation Act of 1977, 18 U.S.C. 2252(a)(1),(2) facially unconstitutional, on the theory that as written it could make a criminal of anyone who “knowingly transports or ships,” or “knowingly receives, or distributes … any visual depiction,” even if all they knew about the visual depiction was that it was a visual depiction, and not that it contained any remotely explicit material involving anyone, let alone a minor. (Apparently, the Ninth Circus hadn’t heard of “as-applied” challenges, so they were eager to let these bona fide child pornographers skate just to make a point about innocent defendants who theoretically could have been charged under the Act, rather than the not-so-innocent defedants who actually were).

The Supreme Court overruled that silly decision on grounds unrelated to syntax, even while noting that “[t]he most natural grammatical reading” of the statute in question suggested otherwise. Justice Scalia, joined in dissent by Justice Thomas, was having none of it. He linked the majority’s observation of the “most natural grammatical reading” of the statute to calling four “the ordinarily preferred total” for two plus two and accused them of interpreting an explicit scienter requirement “in a manner that its language simply will not bear.”

In a very technical sense, I think Justice Scalia was right: nothing in the plain language of 18 U.S.C. 2252 does bear the scienter requirement implied by the majority. But then again, so what? Nothing in the language bears the version implied by the Ninth Circuit or by the dissenters on the Supreme Court, either. There is nothing intrinsic in the word knowingly in particular, nor in English syntax in general, that tells us what one must know in order to be deemed to have knowingly” done anything. Both the majority and the dissent seem to have assumed that “to knowingly X” necessarily means “to do X, while knowing X to be true.” That doesn’t follow.

All that “knowingly” means, in a vacuum, is that its root adjective knowing implies: deliberate, conscious, or possessing knowledge. Neither these nor any other definitions tell us anything about what is known to the actor, only that something something is. When Eric Idle asked in the (in-)famous Nudge, Nudge routine:

“Photographs, ay?” he asked him knowingly.

the implication was that that he asked “Photographs, ay?” knowing something interesting about the photographs in question, and not the trivially true fact that he asked “Photographs, ay?” with knowledge that he was asking “Photographs, ay?” Similarly, it is not reasonable to assume that every statute imposing heightened penalties on “knowing violations of Section 123 of the Penal Code” require the actor to know that the activities in question violate any part of the Penal Code, let alone that such violations are codified at Section 123.

Granted, common sense dictates that as a general rule, what must be known for a person to be deemed to have acted “knowingly” bears a reasonable relationship to the act itself. One could scarcely expect face criminal charges for “knowing possession of cocaine” if all he knew at the time of possession was his own name, the winner of yesterday’s Angels game and/or how to tie his own shoe. But that’s a question of common sense and common usage, not a hard and fast rule of English grammar as both sides of the knowingly debate suggest. I question whether that level of detail should be considered “language” at all, but to the extent it is, it falls in the domain of pragmatics, not syntax or formal semantics.

In the end, I think U.S. v. X-Citement Video was decided correctly, but for the wrong reason. The wrong reason is to claim, as the Rehnquist majority did, that an adverb in a statute can “modify” terms in a separate clause of that statute. That reading of 18 U.S.C. 2252 is every bit as flaky as the “collective rights” interpretation of the Second Amendment, and for exactly the same reason: both reads have elements of one clause magically “modifying” elements of another in a manner no grammar known to man would support (or perhaps could support, without resulting in a grammar so amorphous and unstructured as to make communication nearly impossible). The right reason is to accept the fact that grammar aside, all the plain language of any “knowingly” statute (other than one that defines the term) can tell us is that the crime requires the defendant to have known something and that, when used in the context of a criminal statute, knowingly is a better antonym for innocently than ignorantly. From there, it would seem clear that a law imposing a “knowingly” requirement on child pornography may or may not require the actor to know that he has a visual depiction, but clearly will require him to know that a minor was involved. The other, wrong but defensible result would be to rule that the statute merely requires the person to know he is possessing something, or possibly that he’s possessing a visual depiction, but that constitutional considerations of free speech and/or due process would nevertheless preclude enforcement of the law under those circumstances (which, it bears repeating, were not present in that case).

As to the present case, I don’t know what the better ruling is. Were today’s more conservative court to rule as two of the three conservatives did in U.S. v. X-Citement Video, Inc. they’d have only two choices:

1. Knowingly “modifies” only “transfers, possess, or uses.” If I slipped my driver license into your wallet without your knowledge, and all you know is that you have your wallet with you, you’re an (aggravated) identity thief.
2. Knowingly “modifies” the entire clause. If you know you have an ID in your wallet that isn’t your own, but mistakenly believe it’s a fake ID rather than a real ID from someone else, you are not an (aggravated) identity thief.

The first option is grammatical but silly. The second is plausible, given that the crime in question is aggravated rather than simple identity theft. However, once we accept that the language isn’t supposed to tell us the scope of the scienter requirement, we have a third, equally plausible option:

3. Knowingly requires you to know that the identification is not yours. If you carry an ID in your wallet that you know is not yours, but assume isn’t anyone else’s, either, and you assume wrong, you are an (aggravated) identity thief.