On the language side, ignoring syntax completely would have earned you an easy A+. Instead you got an A- for mostly ignoring linguistics but using the syntactic term “modify” rather than “cover” or “include” to describe the relationship between the scienter requirement and the applicable elements of the crime.

On the law side, I’ll give you a B+. The basic analysis is right, I think, but I’m not persuaded that there is anything tautological or otherwise odd about using “knowingly” to cover possession only. Sure, knowledge would have been implied anyway, but the only obvious effect of adding “knowingly” is to make a scienter requirement more obvious, and not necessarily it any more rigorous or exacting. In the case of the child pornography statute at issue in U.S. v. X-Citement Video above, it was the odd positioning of “knowingly” that led the Ninth Circuit and the two most conservative Justices on the Supreme Court voted to strike down. I don’t think a single judge would have had a problem with the statute if Congress had left out “knowingly” altogether.

Fixing that would have gotten you an A. Real law profes grade for issue spotting, so to get the A+ you’d have had to make all the syntactic arguments, only to strike them down as irrelevant, and then construct an alternative ruling whereby even if the grammar really does limit the scope of “knowingly” to its syntactic adjuncts, this impermissibly broad scope is only good for an as-applied challenge, which this guilty-as-sin defendant lacked standing to bring.

“Knowingly” modifying only “possesses” creates a tautology. “Possession” as a punishable crime under current American jurisprudence requires knowledge that you have control of the contraband sufficient to give the opportunity to divest yourself of it, without any other mention of scienter being necessary. #1 would not be a punishable crime. As a matter fact, Illinois law which is modeled on the MPC would not consider it a voluntary act.

Second, there is clear legislative purpose to protect victims of identity theft and not merely to punish the use of false ID and that purpose is served better if the defendant knows that he is using an actual person’s ID.

There is an argument that once someone chooses to use false ID an absolute duty is imposed on him to make sure that it is not the ID of another person but this kind of absolute liability is limited in current American criminal law. We see it, mainly, in crimes of extreme depravity. For example, it is felony murder if the victim dies during the course of a robbery, kidnapping or rape, but if the IRS auditor had died of apoplexy over Wesley Snipes’s tax returns it would not have been felony murder.

We also see it in mala prohibita where the penalty is relatively small. Mostly traffic offenses. Twenty-four months, however, is a substantial penalty and the presumption is, again under current jurisprudence, that in the absence of an express intent to impose strict liability the legislature intended some measure of scienter. By the use of “knowingly” — actual knowledge that the ID belonged to another person.

What grade do I get, Professor Xrlq?