Knowledge of circumstances

Knowledge of circumstances was required as a matter of statutory interpretation in Flores-Figueroa v United States [2009] USSC No 08-108, 4 May 2009. It was necessary that a person who used false identification numbers knew that they identified another person. The statutory language contained the phrase “knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person”: 18 U. S. C. §1028A(a)(1).

The Court was unanimous in the result, although Scalia J and Alito J in separate judgments were concerned that Breyer J (joined by the others) was making a new rule of interpretation involving the application of adverbs. However, Breyer J acknowledged Alito J’s concern and recognised the importance of context. Even so, there were no examples that the Government could cite in support of its approach. This was a case of normal English usage being applied.

There is no discussion here of what “knowledge” means. Does it include suspicion, wilful blindness, belief, doubt? Usually mens rea includes recklessness, but does it here? Some recognition of the difficulties is apparent from the Government’s argument, noted at p 10 slip op., mentioning the possibility that the defendant might not care whether the identification he presented belonged to another person, but the Court felt this was not a sufficient argument in this case:

“… 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 personal 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 relatively easy to prove, and there will be no practical enforcement 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.”

This seems to support knowledge meaning actual knowledge.

Scalia J disliked Breyer J’s use of what we usually call Parliamentary materials (legislative materials in the USA) or legislative history:

“Relying 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 suggests 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). Indeed, it is not unlike the practice of Caligula, who reportedly “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).”

However Breyer J had found the legislative history inconclusive.

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