Introduction:

Chronic traumatic encephalopathy (CTE), formerly known as dementia pugilistica, is a neurodegenerative disease found in people who have had multiple head injuries.[1] Neuropathologically, CTE is characterized by atrophy of the cerebral hemispheres, medial temporal lobe, thalamus, mammillary bodies, and brainstem, with ventricular dilatation and a fenestrated cavum septum pellucidum.[2]

…. Blah, blah, blah. Boring, right? And complicated? If you read a research paper, you will likely see something like this. That is because the author assumes the paper is being read by a person with a similar level of knowledge on the topic.

This complicated terminology is also often found in Expert witness reports for trials or in patents. The US Patent and Trademark Office (USPTO) states that “a complete description of the actual machine or other subject matter for which a patent is sought is required.”[3] This means that a person has to go into extraordinary and excruciating detail to describe what their patent is and how it works.

If you are interested in going into litigation (or patents), you might ask yourself: Am I able to understand a concept well enough that I could explain it, or the importance of it, effectively to a jury (or in a patent)? This brings me to the focus of this post, the Supreme Court case of Flores-Figueroa v. United States.[4]

 

The Figueroa Case:

Background

In 2000, Ignacio Flores-Figueroa, a citizen of Mexico, presented his employer with information regarding his name, date of birth, and SSN. However, all of this information was entirely fake and did not belong to a real person. In 2006, Mr. Flores gave his employer new information: his real name, new fake SSN, and new fake Alien Registration Card. Unlike the previous time, however, the SSN and registration cards had numbers assigned to real people, not Mr. Flores. Mr. Flores’ employer reported him to U.S. Immigration and Customs Enforcement (ICE). ICE charged Mr. Flores with entering the U.S. without inspection, misusing immigration documents, and, most importantly, aggravated identity theft.

According to 18 U.S. Code § 1028A, any person who commits other crimes, such as theft of government property or unlawful activities related to immigration, is guilty of aggravated identity theft (AIT) if that person knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person.

Mr. Flores argued that this statute required the government to prove that Mr. Flores knew the identification he used belonged to another person. The Supreme Court agreed. Why? As Justice Breyer states: “In ordinary English, where a transitive verb has an object, listeners in most contexts assume that an adverb (such as knowingly) that modifies the transitive verb tells the listener how the subject performed the entire action, including the object as set forth in the sentence.”

Ok. Wait a second! What!?

Most people, like myself, are not English majors, nor do they dwell too much on the minutia of grammar rules. Reading Justice Breyer’s statement may make as little sense to you as reading the beginning paragraph of this post regarding CTE. So, why do I bring this case up?

The Beauty of Examples

In Justice Breyer’s opinion, he outlines numerous examples to help illustrate his point:

(1) He employs the example of a person sending a bank draft to Tegucigalpa. He compares a statement that the person “knowingly sent a bank draft to the capital of Honduras” to a statement that the person simply “sent a bank draft to the capital of Honduras.”

Justice Breyer explains that in the first statement, the person must necessarily know that Tegucigalpa is the capital of Honduras. If the person has no idea what the capital of Honduras is, then the first statement would be inaccurate. The word “knowingly” implies that the person was not only aware that they sent their bank draft, but that they specifically sent it to the capital of Honduras. In the second statement, however, the person could be completely geographically unaware of where Tegucigalpa is located and the statement would still be true.

(2) A second example employed is of a child “knowingly taking a toy that belongs to his sibling.” This statement necessarily shows that the child knew that they were taking the toy and the child knew that the toy belonged to that child’s sibling.

So, what do these examples tell us about Mr. Flores’ case? For that we need to break down the statute itself:

---

A person is guilty of AIT if-

(1) upon the person’s commission of other specified crimes,

(2) the person knowingly

(3) transfers, possesses, or uses,

(4) without legal authority,

(5) a means of identification of another person

---

To simplify this a bit more, let’s remove (1) and (4) as they are simply additional factors that contribute to AIT, but do not modify the reading of the other three factors. With this, we get:

A person is guilty of AIT if- the person knowingly transfers, possesses, or uses a means of identification of another person.

Let’s remove “transfers” and “possesses” to further simply our sentence:

A person is guilty of AIT if- the person knowingly uses a means of identification of another person.

Think back to the examples Justice Breyer gave us:

(1) A person knowingly sent a bank draft to the capital of Honduras.

Conclusion: The person necessarily knows that Tegucigalpa is the capital of Honduras.

(2) A child knowingly took a toy that belongs to his sibling.

Conclusion: The child necessarily knows that the toy belongs to his sibling.

(3) A person knowingly uses a means of identification of another person.

Conclusion: The person necessarily knows that the means of identification belongs to another person.

Thus, the Supreme Court concluded that the government needed to prove that Mr. Flores was aware that the means of identification he was using belonged to another person.

Commas are Important

Would a comma have modified the statute? [See Note 1 in Criminal Law: Cases and Materials, 7th Edition, Dressler]

• Example: “A person knowingly uses a means of identification, of another person.”

While the court does not explicitly address this [See concurring opinions], the structure now implies that the person may be unaware that the means of identification belongs to another person. In other words, the above sentence implicitly states:

• “A person knowingly uses a means of identification, and that means of identification belongs to another person.”

The person must necessarily know that they are using a means of identification, the identification must necessarily belong to another person, but the person does NOT necessarily need to know that the means of identification belongs to another person.

 

Conclusion:

Am I able to understand a concept well enough that I could explain it, or the importance of it, effectively to a jury?

The answer to this question lies in a person’s ability to dole down complicated concepts into relatable examples that can be readily understood by just about anyone. So, let us give it a shot!

What is CTE?

Imagine going to the beach and getting sand stuck on your shoes. By smacking your shoes together, some of the sand will fall off. The more and more you smack your shoes together, the more and more sand will fall off.

A similar thing occurs in your brain when you encounter a blow to the head. The brain is comprised of things called “neurons” which help regulate functions in the brain. When your brain encounters a significant impact, such as a punch to the head, proteins that hold these neurons together, Tau proteins, may start to fall off. [This would be like the sand falling off of your shoes]

The more and more blows a person receives to the head, the more and more these proteins will fall off. Since Tau proteins hold the neurons together, if they fall off, the neurons themselves will start to fall apart. If the neurons start to fall apart, a person’s brain functions will start to deteriorate. This degeneration of the brain is CTE.[5]

Was this a good example? Did it explain what CTE is better than the first paragraph of this blog post? Consider how you would describe a complicated concept to somebody who has never heard of it before. If you can clearly illustrate your concept, then you are one step closer to being a great litigator.