The following is a guest post by Jason Merchant.
The Supreme Court is scheduled today (25 Feb 2009) to hear arguments (Flores-Figueroa v. U.S., No. 08-108) to decide whether Ignacio Flores-Figueroa should have his conviction for aggravated identity theft reversed. The debate centers on the interpretation of a statute, 18 U.S.C. sec. 1028A(a)(1), which states that:
"Whoever … knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person shall … be sentenced to a term of imprisonment of 2 years."
The facts of the case are undisputed: in 2006, Mr. Flores-Figueroa purchased a forged Social Security card and resident alien card in his own name but with numbers that were not assigned to him by the relevant authorities. His employer, a steel plant in East Moline, Illinois, submitted these numbers to the federal authorities, who determined that the numbers had been issued to other people. Mr. Flores-Figueroa pleaded not guilty to aggravated identity theft, saying that "he didn't know that the ID numbers belonged to anyone" (And Unequal Justice for Some, editorial, New York Times, 25 Feb 2009) but was convicted and sentenced to the mandatory two years.
The question before the Court boils down to the scope of the adverb knowingly: as a law professor friend of mine put it, the question is "whether the term 'knowingly' modifies just 'uses' or also 'of another person'".
As a point of grammar, adverbs modify verb phrases, not just verbs. This can be seen pretty clearly by considering the havoc that would arise if "just verbs" could the target of modification. Consider the sentence in (1):
(1) Oedipus knowingly married his mother.
If we could ignore the object of the verb, and take knowingly to modify just marry, (1) should be ambiguous; on one reading, (1) should be equivalent to (2):
(2) Oedipus knowingly married.
And of course while Oedipus did knowingly marry, he didn't know Jocasta was his mother.
Likewise, we can't just ignore some part of the object either (as is implied by wondering whether knowingly applies also to "of another person"); consider:
(3) Oedipus knowingly married a woman who was his mother.
Again, if we could just ignore the relative clause who was his mother, the sentence in (3) could mean the same thing as (4):
(4) Oedipus knowingly married a woman.
And that would be silly. (3) does not equal (4). The same applies to the verb know of course, to which the adverb knowingly is related:
(5) Oedipus knows he married a woman who is his mother.
(6) Oedipus knows he married a woman.
Again, (5) ≠ (6).
It seems clear that the confusion arose because of a sloppy way of speaking that exists, which is to say things like "an adverb modifies a verb". This is wrong. And because adverbs modify verb phrases, not just verbs, the object of the verb can't be ignored, nor can some arbitrary subpart of the object.
One might also be led into this confusion by an earlier decision: "In a 1985 case, quoting a treatise on criminal law, the Supreme Court summed up the problem this way: 'It is not at all clear how far down the sentence the word knowingly is intended to travel.'" (Justices Take Case on Illegal Workers and Penalties for Identity Theft, Adam Liptak, New York Times, 20 Oct 2008.) Sounds like the Supreme Court is endorsing syntactic movement! And not just movement, but covert movement at that ("Supreme Court Decides in Favor of QR"). But that 1985 decision really was about a structural ambiguity between two adjuncts (one before and one after the VP), and doesn't bear on the identity theft statute here at all. It was parallel to another case whose outcome rode on a structural ambiguity in the language of the statute: "this crime covers anyone who intentionally accesses a federal computer without authorization, and by means of one or more instances of such conduct alters, damages, or destroys information" (18 U.S.C. 1030(a)(5)(A) debated in United States v. Morrison; brought to my attention by a linguistics BA who went on to law school and put his training to good use). In this latter case, the question is whether the adverb intentionally is attached to only the first VP or whether it is attached to the conjunction of the two VPs. The defendant argued in favor of the wide scope reading, while the government argued for the local attachment (the judge agreed with the government).
A nice argument preview exists, and briefs and documents are available at Flores-Figueroa v. US, including the excellent amici curiae brief by Tom Ernst, Georgia Green, Jeffrey Kaplan, and Sally McConnell-Ginet.
(Thanks to Prof. Todd Henderson of the University of Chicago Law School who originally brought the case to my attention and asked me about this point of grammar.)
[The decision? Here.]