Stanford student Daniel Matro discusses last Wednesday’s argument in Flores-Figueroa v. US.  Please note that Howe & Russell represents petitioner. Additional information on the case is available from SCOTUSwiki.

At oral argument on Wednesday, February 25, the Court sharply questioned the government's position that it need not prove petitioner Flores-Figueroa knew the means of identification he used belonged to another person to convict him of aggravated identity theft under 18 U.S.C. § 1028A(a)(1). By the end of argument, it appeared that a number of Justices thought the text favored Flores-Figueroa's interpretation, or was, at best, ambiguous. The Justices most likely to be swayed by legislative history and purpose did not seem persuaded that Congress's desire to protect victims compelled construing the text in the government's favor.

Kevin Russell, representing petitioner Flores-Figueroa, began with an argument that figured prominently in his opening and reply briefs. In common usage, to say that "John knowingly used a pair of scissors of his mother," Russell explained, is to say that John knew not only that he was using something, or that he was using a pair of scissors, but that the scissors he was using belonged to his mother. In his view, the statute should be interpreted no differently. The Court, however, did not seem especially interested in this line of argument. Justice Alito questioned whether Russell's conclusion in fact depended on the context in which such a statement is made. Chief Justice Roberts chimed in with an example: To say that someone "stole a car that belonged to Mr. Jones" would not necessarily imply that the thief knew the car belonged to Mr. Jones. As Russell began explaining why that example was grammatically different, Justice Scalia, in an early sign of his leanings in the case, helpfully added that the Chief Justice's example omitted the word "knowingly."

Justice Breyer sought to steer the discussion beyond the common usage argument, suggesting that it did not matter whether Russell's interpretation is consistent with common usage: "So what if it isn't?" Doesn't the Court normally apply a knowledge requirement to each element of the crime? Russell agreed, and prompted by a question from Justice Alito, discussion soon turned to what actual mental state would satisfy the statute's mens rea requirement and what type of evidence would be sufficient to show it. Justices Alito and Kennedy raised several hypotheticals, one of which seemed to cause momentary confusion. If the defendant had five identity cards each belonging to a different real person, Justice Kennedy asked, would that be sufficient evidence to allow the jury to infer knowledge? Russell's answer that it would not drew this response from Justice Scalia: "You are making it very hard for me to vote with you, I must say. I thought you had a pretty good "“ a pretty good case. But if you are going to say somebody who has five identity cards, faces of individuals, presumably they are real individuals . . . ." Russell responded that he may have misunderstood the hypothetical, and that the possession of five identity cards with five different pictures, names, and numbers would be sufficient to allow a jury to infer that the defendant knew they belonged to someone else.

Justice Alito asked whether the use of a common name on a fake identification would be sufficient to establish knowledge. Russell responded that such a scenario presents difficult line-drawing issues, but the prosecution would have to show that the defendant had to know that a specific person of that name existed, even if he did not know who that person was. If it's a sufficiently common name, Russell conceded to Justice Kennedy, a jury could infer knowledge based on the use of the name alone. Russell added, however, that in many of the cases Congress was most concerned about, this issue will not arise because the method by which the defendant obtains the identification will itself provide powerful evidence of knowledge.

Moving on, Russell challenged the government's argument that the statute must be construed in a way that is most protective of victims. Russell emphasized that Congress could have written a statute that would hold defendants like petitioner strictly liable, as it has occasionally done in other contexts, but there are strong reasons to think it did not do so here. First, the language of § 1028A(a)(1) is different from those statutes. Second, he questioned whether it was really Congress's intent to subject two people with identical culpability to such substantially different punishments, and to impose identical punishments on two people with such substantially different culpability. And, in response to a question from Justice Ginsburg, he reminded the Court that identity fraud statutes already seriously punish, and therefore deter, individuals whose use of a fake identification risks harming an unknown victim's credit.

Arguing for respondent United States, Toby Heytens faced a skeptical audience from the outset. Justice Ginsburg asked whether, in his view, when two people get false social security cards from the same source and one of the two happens to receive a number that belongs to another person, that individual deserves the additional punishment imposed by § 1028A(a)(1). Heytens said yes, explaining that "there are no victimless violations of 1028A(a)(1)." Justice Stevens followed up, asking whether "Congress intended there to be a more severe punishment for somebody who really steals another person's . . . identity so he can cash in on his credit and so forth?"

Heytens urged the Justices not to view the case from the "defendant's perspective" but from the victim's perspective. While the defendant may just have happened to take a real person's number, to the victim, it makes no difference whether her identity was stolen by someone who knew she existed or did not. In response to Justice Breyer's suggestion that those kinds of considerations could be taken into account at sentencing, Heytens argued that the statute was enacted at least in part out of concern that judicially discretionary sentences were failing to adequately take into account the harm suffered by real victims.

Justice Breyer in turn responded by asking Heytens why, then, Congress did not simply write "means of identification." "[I]t's odd," he suggested, "to write a statute that has elements and you put the word "knowingly,' and the knowingly is supposed to modify some elements but not others." Could Heytens identify an example of any statute that operated in this manner? Heytens pointed to the Court's opinion in Morissette v. United States and the D.C. Circuit's opinion in United States v. Chin. Justice Stevens objected to the Morissette analogy, pointing out that in Morissette the distinction was between two equally culpable acts "“ it made no difference whether the owner of the converted property was the United States or a private person, as long as the property did not belong to the defendant. In this case, by contrast, two individuals with vastly different culpability are treated alike. In the federal identity theft statute, Justice Stevens asked, "what are the words "of another person' doing there if really they are not supposed to make any difference in terms of mental state?" Simply to make clear that the statute applies only when there is a real victim, Heytens replied.

To this, Justice Breyer responded that Heytens's argument had to hinge entirely on congressional intent. Would Heytens agree that "if you simply look at the text of this statute without considering congressional policy, you don't win?" Heytens' reply "“ "[w]e don't concede that the text of the statute alone unambiguously resolves the issue" "“ was abruptly interrupted by Justice Souter, who asked "does it even come close to supporting it?" It can't possibly be the case, Justice Souter argued, that "knowingly" refers only to the verbs. And it would be entirely "arbitrary" to draw the line after "without lawful authority." Because the operative term in the statute is "a means of identification of another person," the word ""knowingly' has got to refer to . . . everything that follows, both lawful authority and another person." So "you have got to win on the grounds that Congress wouldn't have meant what seems so natural, because Congress wanted to help victims not defendants."

Heytens conceded that the text does not so clearly support his position as to make further inquiry unnecessary. This prompted Justice Scalia to suggest that the rule of lenity must apply. Heytens responded that some ambiguity doesn't automatically trigger the rule, and that the Court must first consider purpose, legislative history, and other means of statutory construction. Not satisfied, Justice Breyer replied that the problem Heytens faces is that nothing he has said convincingly demonstrates that Congress meant to target everyone who steals an actual person's identity rather than only those who knowingly do. He also suggested that the case for applying the rule of lenity is particularly strong in the context of mandatory minimum sentences. Justice Ginsburg stepped in, asking whether the 3-3 split among the circuits was not evidence that the statute is indeed grievously ambiguous. Again returning to the fact that the government's interpretation imposes a two-year punishment on defendants who engage in the exact same conduct with the exact same state-of-mind as defendants who are not eligible for the penalty, she asked, "Why in the world would Congress want to draw such a line?"

Heytens responded by pointing to the felony-murder statute, but the Chief Justice questioned the comparison. Heytens turned to legislative history, suggesting that when Congress discussed the harm caused by identity theft, it made no distinction between perpetrators who knew they were harming a specific victim and those who did not. This too drew a skeptical response from the Chief Justice, who pointed out that even the perpetrator who does not know there is a real victim faces significant prison time for identity fraud. Heytens responded that Congress was concerned about such individuals not actually receiving that punishment: "The fact that there is a real victim gets you two years." Justice Scalia responded that it is equally plausible to conclude that "you get two years for knowing that there is a discrete victim . . . it makes sense either way." This forced Heytens again to return to his point that, in light of Congress's concern about the harm to real victims, the additional punishment should not turn on the defendant's awareness of a specific victim.

Finally, Heytens urged the Court not to ask the question whether petitioner is an identity thief, but to ask whether the two individuals whose identities he used were the victims of identity theft. The Chief Justice retorted that the problem is "the statute says identity theft; it doesn't say anything about victims."

In a brief rebuttal, Russell sought to explain the Morissette and Chin examples. Morissette can be distinguished because the element requiring that the property belong to the United States is a jurisdictional element, and mens rea requirements don't traditionally extend to jurisdictional elements. And the Chin example falls within a category of special cases in which courts have treated the victimization of children differently, given the difficulty of ascertaining the defendant's knowledge of the victim's age.

Russell also again addressed the government's claims about the victim-focused nature of the statute. It is certainly true that criminal law takes into account both defendant culpability and victim harm, he observed, "but the ordinary resolution is to reserve punishment in the criminal system for those who intend the harms that they inflict." When Congress departs from this assumption, it writes statutes that make that clear, and it did not do so here. Finally, Russell reminded the Court of Heytens's concession that the text is at least ambiguous and that there are policy arguments on both sides. "[R]egardless of your view of what the trigger of the rule of lenity is," he concluded, "this is a classic case for it."

Posted in Flores-Figueroa v. U.S., Uncategorized