Clear As Mud And Plain As Day

What does this mean exactly?

"[w]hoever, during and in relation to any felony violation enumerated in [§ 1028A(c)] knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person shall, in addition to the punishment provided for such felony, be sentenced to a term of imprisonment of 2 years.”

Ignacio Carlos Flores-Figueroa, a Mexican national, was convicted of aggravated identity theft. You can read a synopsis here. He appealed his conviction, arguing that the law says that he had to know the identification he was using actually belonged to another person. The Eight Circuit Court of Appeals upheld his conviction (PDF) stating:

On appeal, Flores renews his argument that 18 U.S.C. § 1028A(a)(1) requires the Government to prove that a defendant knew that the means of identification belonged to another person. Section 1028A(a)(1) states that “[w]hoever, during and in relation to any felony violation enumerated in [§ 1028A(c)] knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person shall, in addition to the punishment provided for such felony, be sentenced to a term of imprisonment of 2 years.” The Government argues that “knowingly” modifies only “transfers, possesses, or uses,” whereas Flores argues that “knowingly” modifies not only “transfers, possesses, or uses,” but also the phrase “of another person,” which would require the Government to prove that a defendant knew the means of identification belonged to another person.

The Supreme Court has agreed to hear the case and decide just exactly what the law means. How will they do that? Justice Scalia wrote in A Matter of Interpretation (start at page 31) that what matters is what the law says, not what Congress intended. So the history of how the law came about and what Congress intended to do with the law has no weight whatsoever. It will be interesting to see what the court comes up with next June.

I imagine some law clerks will be consulting some English professors.