New York Federal Criminal Practice Blog
October 2, 2009

Erroneous Jury Instruction on Scope of the Word "Knowingly" Leads to Reversal

Sometimes, the defense, or successful appellate argument, may lie in something as elementary as the proper reading of the charging statute.  In United States v. Shim, 2009 WL 3127210 (2d Cir. October 1, 2009), for example, the defendant was charged with “knowingly transport(ing) any individual in interstate . . . commerce . . . with intent that such individual engage in prostitution...”  The Court reversed her conviction, holding that the district court erred in failing to instruct the jury that to be guilty of the offense, Shim had to know, not only that she was transporting the women, but that the women were transported in interstate commerce.

Quoting the Supreme Court’s decision in Flores-Figueroa v. United States, 129 S.Ct. 1886 (2009), the Court explained “[i]n 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.”

Yes, I didn’t follow that either on first reading.  My translation: the word “knowingly” modifies all the elements of a criminal statute.  Except when it doesn’t – take note of Justice Alito’s Potter Stewart caveat in Flores-Figueroa, that there may situations where the context of the statute dictates a different result.  But let’s leave prosecutors make that argument. 

Lawyers: Susan Wolfe, Hoffman & Pollok, LLP (defendant); AUSAs Elie Honig and Andrew Fish

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