WARDLAW, Circuit Judge:

It is a federal crime under 18 U.S.C. § 2244(b), enacted as part of the Sexual Abuse Act of 1986, to knowingly engage in sexual contact with another person without that other person’s permission on an international flight. During an overnight flight from Tokyo, Japan to Los Angeles,

6 UNITED STATES V. PRICE

California, Juan Pablo Price, a forty-six-year-old man, moved from his assigned seat to an open seat adjacent to that of a sleeping twenty-one-year-old female Japanese student, where he fondled her breast and slipped his hand into her underwear, touching her vagina. The jury convicted Price under 18 U.S.C. § 2244(b), finding that the government proved beyond a reasonable doubt that Price knowingly had sexual contact with the victim and that the sexual contact was without the victim’s permission. Price appeals his conviction, arguing that the district court erred in giving the Ninth Circuit Model Instruction on the elements of § 2244(b), which does not require that the government prove beyond a reasonable doubt that the defendant subjectively knew that his victim did not consent to his conduct.

We reject Price’s reading of the statute as contrary to its text, the structure of the statutory scheme and its very purpose in penalizing those who sexually prey upon victims on the seas or in the air within federal jurisdiction. Congress’s purpose in enacting the Sexual Abuse Act of 1986 was to criminalize sexual contact by focusing on the defendant’s conduct. If the government were required to prove that the defendant subjectively knew he lacked consent, as Price urges here, every accused sexual predator could defend his admitted sexual contact in the face of no objective sign of permission by asserting a supposed subjective belief that the victim was “enjoying herself,” a result directly contrary to the purpose of the 1986 Act. Even Price recognized, following his arrest, that “it sure is going to be my job not to touch a woman” whom he doesn’t know and hasn’t talked to. As the arresting officer responded to Price, “in your forty something years, you should’ve already known that[].”

UNITED STATES V. PRICE 7

Because unwanted sexual contact of the type Price engaged in—touching first, and asserting later that he “thought” the victim consented—is precisely what § 2244(b) criminalizes, we reject Price’s claim of instructional error. We also conclude that the police had probable cause to arrest Price, that he was properly Mirandized, and that the district court acted within its discretion in refusing to read back to the jury portions of the victim’s testimony. We therefore affirm Price’s conviction and sentence.

I.

The objective facts are fairly undisputed. Price, then forty-six, was a passenger on the overnight flight from Tokyo, Japan to Los Angeles, California. A.M., a twenty- one-year-old college student, and her friend, Maki Fujita, were traveling on the same flight. After take-off, Price asked A.M. if he could move from his assigned seat to the unoccupied seat next to her, a seat where the video monitor was not working, explaining that his original seat had limited legroom. A.M. said “okay.” Price attempted to engage A.M. in conversation, but A.M. could not speak English very well, and he eventually realized that she was not completely understanding what he was saying. A flight attendant, Hidemori Ejima, noticed that Price had changed his seat, and asked him why. When Price responded that he wanted more legroom, Ejima offered Price another seat with a working video monitor and three times more legroom. Price declined the offer—something Ejima had not seen before in his twenty-five years as a flight attendant. After food service, Ejima handed Fujita a note warning Fujita and A.M. to “watch out” for the person sitting next to them. A.M. interpreted the warning to mean that Price might try to steal her wallet or other belongings. She moved her purse and wallet deeper into her bag and fell asleep.

8 UNITED STATES V. PRICE

A.M. woke up to Price touching the right side of her body, including her arm, hip, and leg. Thinking that Price was trying to steal the cell phone in her pocket, she moved the phone to inside the seat pocket and went back to sleep. When A.M. awoke again, Price was touching her breast. A.M. began panicking, but did not want to bother the people around her. She tried to avoid Price’s touch by pulling the blankets up to her shoulder and crossing her arms in front of her. Undeterred, Price placed his blanket over both of them, covering his arms, and continued to touch her breast, first over her shirt and then under it. Price then moved his hand into A.M.’s jeans and underwear and touched her vagina.

In a state of shock, panic, and fear, and looking for the words to tell Price to stop, A.M. twisted her body toward Fujita on her left, away from Price. Price hauled her back around with “strong force” and tried to pull her jeans down. At this point, Fujita woke up, and, seeing her awake, Price retreated to his seat. When Fujita asked A.M. if she was okay, A.M. responded that she was not and asked what she should do. Fujita told her to tell the flight attendant. A.M. did not have the English words to explain what happened, although she was able to ask for “help.”

Price’s perception of the encounter differed from the others on the plane. He testified that while his hand was on the armrest, he felt A.M.’s hand touch his. Thinking that this could be an invitation, Price began to rub her hand. Price stated that they started holding and rubbing each other’s hands. As he began moving his hands across A.M.’s body and to her breast area, he thought she was “enjoying herself” because she was arching her body, he could feel her heartbeat, her breathing was intense, and she was opening and closing her eyes. It was only when Price tried to move her face toward him and A.M. would not budge that Price

UNITED STATES V. PRICE 9

thought something was wrong. At that point, Price noticed that Fujita was awake, and A.M. then got up. According to both A.M.’s and Price’s accounts, no words were exchanged during this encounter. Price agrees A.M. did not verbally consent to his touching her.

While A.M. got up to tell the flight attendant what happened, Price wrote a note that he never ended up giving to A.M., which said, “If a man touches you and you don’t want him to always feel free to say No.” The purser or lead chief flight attendant, Yosri Zidan, then obtained written statements from both Price and A.M. Price’s story was that he changed seats because he wanted more legroom; he then fell asleep and awoke to find A.M. stroking his hand.

While still in flight, the pilot sent a message to American Airlines employees at Los Angeles International Airport (LAX) that read, “WE NEED LAX POLICE TO MEET AIRPLANE [/] WE HAVE A MOLESTER/FONDLER ON BOARD.” The LAX Police Department (LAXPD) then contacted the Transportation Security Administration (TSA), who in turn contacted the Federal Bureau of Investigation (FBI). Special Agent David Gates (S.A. Gates) of the FBI instructed the sergeant at LAX to first investigate the incident to determine if he needed to respond.

On February 18, 2015, after a federal grand jury indicted Price for abusive sexual contact under 18 U.S.C. § 2244(b), Price was formally arrested. Price filed a pre-trial motion to suppress evidence found in his bag and cell phone, and his statements to the LAXPD officers and to S.A. Gates, arguing that he was arrested without probable cause upon the flight’s arrival at LAX and that he was questioned without being given Miranda warnings. The government and Price disputed the 18 U.S.C. § 2244(b) jury instruction, based on the statute’s use of the word “knowingly.” The district court

10 UNITED STATES V. PRICE

ultimately selected the Ninth Circuit’s Model Criminal Jury Instruction for § 2244(b) and the additional instruction proposed by Price that “permission” under § 2244(b) can be express or implied, “that is[,] inferred from words or actions.” The district court denied Price’s request to instruct the jury that, in addition, the government must prove that Price “knew the sexual contact was without A.M.’s permission.” The district court reasoned “that it is appropriate not to read into the statute that which it does not say it requires.”

Price timely appeals.

II.

18 U.S.C. § 2244(b) provides:

Whoever, in the special maritime and territorial jurisdiction of the United States . . . knowingly engages in sexual contact with another person without that other person’s permission shall be fined under this title, imprisoned not more than two years, or both.

“Sexual contact” is defined as “the intentional touching, either directly or through the clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks of any person with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person.” 18 U.S.C. § 2246(3). The Ninth Circuit’s model instruction provides:

The defendant is charged in [Count _______ of] the indictment with abusive sexual contact in violation of Section 2244(b) of Title 18 of the United States Code. In order for the defendant to be found guilty of that

UNITED STATES V. PRICE 11

charge, the government must prove each of the following elements beyond a reasonable doubt: First, the defendant knowingly had sexual contact with [name of victim]; Second, the sexual contact was without [name of victim]’s permission; and Third, the offense was committed at [specify place of federal jurisdiction]. In this case, “sexual contact” means [specify statutory definition].

Manual of Model Criminal Jury Instructions § 8.180 (2010) (Ninth Cir. Jury Instructions Comm., amended 2015). The model instruction does not ask the jury to find that the defendant subjectively knew that he lacked the victim’s permission. Price argues that the model instruction was given in error.

Whether “a jury instruction misstates elements of a statutory crime” is an issue we review de novo. United States v. Knapp, 120 F.3d 928, 930 (9th Cir. 1997). We have not yet addressed whether the term “knowingly” in § 2244(b) applies to the phrase “without that other person’s permission.” As a matter of statutory interpretation, we generally consider the statute’s language, purpose, history, and past decisions and controlling law to determine whether the district court properly instructed the jury. See Taylor v. United States, 495 U.S. 575, 581 (1990); United States v. Lo, 447 F.3d 1212, 1229 (9th Cir. 2006).

A.

Our analysis begins with the text of the statute. “In determining what mental state is required to prove a violation of the statute, we look to its words and the intent of Congress.” United States v. Johal, 428 F.3d 823, 826 (9th Cir. 2005). We keep in mind the “background rules of the

12 UNITED STATES V. PRICE

common law in which the requirement of some mens rea for a crime is firmly embedded.” Staples v. United States, 511 U.S. 600, 605 (1994) (citation omitted).

We begin with the statutory text and interpret “statutory terms in accordance with their ordinary meaning, unless the statute clearly expresses an intention to the contrary.” I.R. ex rel. E.N. v. L.A. Unified Sch. Dist., 805 F.3d 1164, 1167 (9th Cir. 2015) (citation omitted). Examining the text of § 2244(b), we conclude that its most natural grammatical meaning is that the government must prove that the defendant knew he engaged in sexual contact, not that it prove that the defendant subjectively knew he lacked consent. The term “knowingly” modifies only the verb phrase “engages in sexual contact with another person” and does not modify the adverbial prepositional phrase “without that other person’s permission.”

In United States v. X-Citement Video, Inc., the Supreme Court examined the Protection of Children Against Sexual Exploitation Act of 1977, which punishes, inter alia, any person who “knowingly transports or ships in interstate or foreign commerce” or who “knowingly receives, or distributes . . . , or knowingly reproduces” from such commerce “any visual depiction, if—(A) the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct.” 513 U.S. 64, 68 (1994) (quoting 18 U.S.C. § 2252(a) (1988 ed. & Supp. V 1993)). The “critical determination” the Court had to make was whether the term “knowingly,” in the phrases “knowingly transports or ships” and “knowingly receives, or distributes” modifies not only those verbs but also the phrase “the use of a minor.” Id. The Court recognized that “[t]he most natural grammatical reading . . . suggests that the term ‘knowingly’ modifies only the surrounding verbs: transports, ships,

UNITED STATES V. PRICE 13

receives, distributes, or reproduces.” Id. at 68. Nevertheless the Court was “reluctan[t] to simply follow the most grammatical reading of the statute,” because the results of that reading were “positively absurd” and would “sweep within the ambit of the statute actors who had no idea that they were even dealing with sexually explicit material.” Id. at 69–70.

We followed suit in construing the most natural grammatical reading of a statute in United States v. Backman, 817 F.3d 662 (9th Cir. 2016). There we construed an analogous mens rea requirement in a criminal sex trafficking statute, the Trafficking Victims Protection Act of 2000. That statute required proof that the defendant “knowingly—(1) in or affecting interstate or foreign commerce, or within the special maritime and territorial jurisdiction of the United States, recruits, entices, harbors, transports, provides, obtains, or maintains by any means a person.” Id. at 666–67 (quoting 18 U.S.C. § 1591(a)). We rejected the defendant’s argument that the government must prove, in addition to proving knowing recruitment, that he knew his acts affected interstate or foreign commerce, concluding “it is most natural to read the adverb ‘knowingly’ in [18 U.S.C.] § 1591(a) to modify the verbs that follow: ‘recruits, entices, harbors, transports, provides, obtains, or maintains.’ The phrase ‘in or affecting interstate or foreign commerce’ describes the nature or extent of those actions but, grammatically, does not tie to ‘knowingly.’” Id. at 667.

Similarly, here, the phrase “without that other person’s permission” describes the nature or extent of the prohibited action “engag[ing] in sexual contact” but, grammatically, does not tie to the term “knowingly.” 18 U.S.C. § 2244(b). Price attempts to distinguish Backman on the ground that the phrase “in or affecting interstate or foreign commerce” is

14 UNITED STATES V. PRICE

jurisdictional, but that was only a secondary rationale for our Backman holding, which we found persuasive in a Seventh Circuit opinion, United States v. Sawyer, 733 F.3d 228 (7th Cir. 2013). The principal rationale in Backman was our view of the statute’s most natural grammatical reading, which demonstrates the statute’s ordinary meaning.

Our reading of § 2244(b) is consistent with our precedent for interpreting mens rea requirements in criminal statutes. “When interpreting federal criminal statutes that are silent on the required mental state, we read into the statute only that mens rea which is necessary to separate wrongful conduct from otherwise innocent conduct.” Elonis v. United States, 135 S. Ct. 2001, 2010 (2015) (internal quotation marks and citation omitted). Thus, although courts must be careful not to interpret crimes too broadly, “[i]n some cases, a general requirement that a defendant act knowingly is itself an adequate safeguard.” Id.

Here, the other elements of § 2244(b) provide that adequate safeguard. First, the statute already provides for a mens rea requirement that the defendant engage in sexual contact knowingly, rendering unnecessary a second mens rea requirement. See Lo, 447 F.3d at 1230 (finding that a conviction under 21 U.S.C. § 841(c)(2) did not require knowledge that the substance was a listed chemical, because the mens rea requirement that the defendant knowingly possessed or distributed the chemical was sufficient to ensure that “apparently innocent conduct is not criminalized”). Second, the government must also prove beyond a reasonable doubt that the sexual contact was without the victim’s permission, which is sufficient to render it wrongful. See, e.g., United States v. Gavin, 959 F.2d 788, 791–92 (9th Cir. 1992). As the district court properly recognized in instructing the jury on “permission,” although

UNITED STATES V. PRICE 15

it is an objective concept, it includes both explicit and implicit permission, and may be proven by circumstantial evidence. Thus, hewing close to the natural grammatical reading of “knowingly” here does not portend “absurd” results that would sweep up innocent actors not intended to be covered by the statute. Cf. X-Citement Video, 513 U.S. at 69.

Flores-Figueroa v. United States, 556 U.S. 646 (2009), is inapposite. In Flores-Figueroa, the Supreme Court considered a federal aggravated identity theft statute that provided for an increased criminal penalty of an additional two years of imprisonment for certain offenses if the offender “knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person.” 18 U.S.C. § 1028A(a)(1). The Court concluded that the term “knowingly” modified the entire sentence such that the government needed to show that the defendant knew that the “means of identification” belonged to “another person.” Flores-Figueroa, 556 U.S. at 657; see also id. at 650 (“It makes little sense to read the provision’s language as heavily penalizing a person who ‘transfers, possesses, or uses, without lawful authority’ a something, but does not know, at the very least, that the ‘something’ (perhaps inside a box) is a ‘means of identification.’ Would we apply a statute that makes it unlawful ‘knowingly to possess drugs’ to a person who steals a passenger’s bag without knowing that the bag has drugs inside?”).

Price argues that Flores-Figueroa requires us to adopt his interpretation of § 2244(b) because “courts ordinarily read a phrase in a criminal statute that introduces the elements of a crime with the word ‘knowingly’ as applying that word to each element.” Id. at 652. But Price erroneously takes the Flores-Figueroa holding out of the

16 UNITED STATES V. PRICE

context of the aggravated identity theft statute. As the Court reasoned, Flores-Figueroa’s directives were specific to particular grammatical contexts that “[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.” Id. at 650. This grammatical structure does not appear in § 2244(b), where the phrase in question— “without that other person’s permission”—is not the object of the sentence but an adverbial prepositional phrase.

Second, and most importantly, in Flores-Figueroa, the mens rea requirement was necessary to “separate wrongful conduct from otherwise innocent conduct.” Elonis, 135 S. Ct. at 2010 (internal quotation marks and citation omitted). By contrast, “[h]ere, there is no potential for the penalization of innocent conduct nor do we face constitutional avoidance concerns.” United States v. Jefferson, 791 F.3d 1013, 1016– 18 (9th Cir. 2015) (finding it unnecessary to extend the “knowingly or intentionally” mens rea to the type and quantity of drugs at issue, where the requirement that the government prove the other elements of the case was “sufficient to ensure the statute penalizes only culpable conduct”). We have explicitly rejected the notion that the Court’s reading of “knowingly” in Flores-Figueroa compels the same reading in every criminal statute that uses the word “knowingly.” See id. at 1017–18 (“Because [21 U.S.C.] § 960’s statutory text and structure are not parallel to that of § 1028A(a)(1), the ordinary grammatical interpretive rules articulated in Flores-Figueroa do not apply here.”); United States v. Stone, 706 F.3d 1145, 1147 (9th Cir. 2013) (“[T]he Court in Flores-Figueroa did not announce an ‘inflexible rule of construction.’ Rather, statutory interpretation remains a contextual matter.” (citations omitted)); United

UNITED STATES V. PRICE 17

States v. Castagana, 604 F.3d 1160, 1166 (9th Cir. 2010) (rejecting the argument that the court “treat ‘with intent’ the same way the Supreme Court treated ‘knowingly’ in Flores- Figueroa” because “the language of the statute in Flores- Figueroa is not parallel to that of [18 U.S.C.] § 1038(a)(1)”). Indeed, the Flores-Figueroa Court itself cautioned that “the inquiry into a sentence’s meaning is a contextual one.” 556 U.S. at 652.

The Supreme Court’s recent decision in Rehaif v. United States, 139 S. Ct. 2191 (2019), does not alter our conclusion. There, the Supreme Court held that 18 U.S.C. § 924(a)(2), which applies to one who “knowingly violates” 18 U.S.C. § 922(g), applied “knowingly” to each element of § 922(g) save the jurisdictional element. Rehaif, 139 S. Ct. at 2195. Rehaif did not change the governing principles of statutory interpretation set out in prior cases. See id. at 2195–97. And Rehaif examined a different statute with different text, structure, and legislative history, addressing different conduct. In § 924(a)(2), “‘knowingly’ . . . modifies the verb ‘violates’ and its direct object, which in this case is § 922(g).” Id. at 2195. This complete phrase is “notably not a case where the modifier ‘knowingly’ introduces a long statutory phrase, such that questions may reasonably arise about how far into the statute the modifier extends.” Id. at 2196. Section 2244(b) raises those questions, because while “knowingly” modifies the verb “engages in” and the object, “sexual contact,” the sentence contains additional prepositional phrases including “without that other person’s permission.”

The Supreme Court in Rehaif found “no convincing reason to depart from” the “longstanding presumption . . . that Congress intends to require a defendant to possess a culpable mental state regarding ‘each of the statutory

18 UNITED STATES V. PRICE

elements that criminalize otherwise innocent conduct.’” 139 S. Ct. at 2195 (quoting X-Citement Video, 513 U.S. at 72). By contrast, the proposed “innocent conduct” at issue here, id., is sexual contact with the intimate parts of another person’s body. Such action necessarily implicates the person of another, unlike the possession of a firearm at issue in Rehaif. See id. at 2197. The normal default between two people for such intimate sexual activity, without any communication or prior understanding, is not to touch. The person who does so anyway is not engaged in “entirely innocent” conduct. Id. Under § 2244(b), the government must prove that the victim did not consent beyond a reasonable doubt. If there is objective evidence, either direct or circumstantial, that creates reasonable doubt about whether the victim did not consent, either explicitly or implicitly, the government has not proven its case. This proof is sufficient to separate wrongful conduct— inappropriate and unwanted sexual touching—from innocent conduct, in contrast to the “knowing” requirement in § 922(g). To hold otherwise would be to suggest the statute protects even patently unreasonable beliefs of invitation, which finds no support in the statutory text or history.

As the X-Citement Video Court advised, however, this does not necessarily end our analysis “because of the respective presumptions that some form of scienter is to be implied in a criminal statute even if not expressed.” 513 U.S. at 69. We therefore next examine the structure, Marks v. Crunch San Diego, LLC, 904 F.3d 1041, 1051 (9th Cir. 2018), and legislative history of the statute, to determine if we, like the X-Citement Video Court, should be reluctant to “simply follow the most grammatical reading of the statute,” 513 U.S. at 70.

UNITED STATES V. PRICE 19

As the X-Citement Video Court advised, however, this does not necessarily end our analysis “because of the respective presumptions that some form of scienter is to be implied in a criminal statute even if not expressed.” 513 U.S. at 69. We therefore next examine the structure, Marks v. Crunch San Diego, LLC, 904 F.3d 1041, 1051 (9th Cir. 2018), and legislative history of the statute, to determine if we, like the X-Citement Video Court, should be reluctant to “simply follow the most grammatical reading of the statute,” 513 U.S. at 70.

B.

Section 2244(b) is part of a statutory scheme criminalizing abusive sexual contact. First, subsection (a) criminalizes conduct that, “had the sexual contact been a sexual act,” would be “punished [elsewhere] by this chapter.” 18 U.S.C. § 2244(a). Second, subsection (b) criminalizes sexual contact “[i]n other circumstances.” Id. § 2244(b). Finally, subsection (c) enhances the sentence “[i]f the sexual contact that violates this section (other than subsection (a)(5)) is with an individual who has not attained the age of 12 years.” Id. § 2244(c).

Subsections 2244(a) and 2244(b) work in parallel ways, and we must read the two subsections together. See United States v. Lewis, 67 F.3d 225, 228–29 (9th Cir. 1995) (“Particular phrases must be construed in light of the overall purpose and structure of the whole statutory scheme.”). Both § 2244(a) and (b) require that the defendant “knowingly” have “sexual contact” and set forth one additional element of the offense. In § 2244(a), the additional element the government must prove is that the sexual contact would be punishable by certain other statutes

20 UNITED STATES V. PRICE

if the sexual contact had instead been a sexual act; 1 in § 2244(b), the additional element is the victim’s lack of permission. The government is not required to prove that the defendant knew that the second element of § 2244(a) was met—in other words, the government need not prove that the defendant knew that the sexual contact he engaged in would have been punished by another law if the contact had risen to the level of a sexual act. We have not read § 2244(a)(3) to tie the word “knowingly” to the second element. Courts have instead read the second element as subject to objective proof. United States v. Granbois, 376 F.3d 993, 995 (9th Cir. 2004) (delineating the elements for conviction under § 2244(a)(3), which does not include a mens rea requirement for the second element); see also United States v. Jennings, 496 F.3d 344, 352 (4th Cir. 2007) (concluding that to determine a violation of § 2244(a)(3), “under the

1 18 U.S.C. § 2246(2) defines the term “sexual act” as

(A) contact between the penis and the vulva or the penis and the anus, and for purposes of this subparagraph contact involving the penis occurs upon penetration, however slight;

(B) contact between the mouth and the penis, the mouth and the vulva, or the mouth and the anus;

(C) the penetration, however slight, of the anal or genital opening of another by a hand or finger or by any object, with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person; or

(D) the intentional touching, not through the clothing, of the genitalia of another person who has not attained the age of 16 years with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person.

UNITED STATES V. PRICE 21

straightforward language of the statute, we are to read § 2243(a) and determine whether [the defendant] had committed that offense, substituting for ‘sexual act’ the term ‘sexual contact’”). To read “knowingly” to apply to the second element in § 2244(a) would both be grammatically unnatural and produce absurd results. Because a conviction under § 2244(a) does not require that the government prove the defendant’s knowledge of the additional element, we should read § 2244(b) in the same manner.

Price argues that reading the statute along with its neighboring provisions, 18 U.S.C. § 2241(c) and § 2243(a), requires the opposite interpretation. Section 2244(b) follows the same general sentence structure as the other two subsections—although the other two subsections address sexual acts with minors, a more serious crime than sexual contact. According to Price, because § 2241(d) and § 2243(d) expressly provide that “the Government need not prove that the defendant knew” the age of the minor, the absence of such a provision in § 2244(b) indicates that Congress intended that the government must prove that the defendant knew that sexual contact was without permission. We disagree.

Sections 2241 (aggravated sexual abuse) and 2243 (sexual abuse of a minor or ward) impose severe penalties, with maximum sentences of life imprisonment and fifteen years, respectively. By contrast, § 2244(b) was first passed as a “petty offense” punishable by no more than six months’ imprisonment. Sexual Abuse Act of 1986, Pub. L. No. 99- 646, § 87, 100 Stat. 3592, 3622 (1986); H.R. Rep. 99-594, at 19 nn. 75–76. It stayed that way for two decades before being increased without comment in 2006, see Violence Against Women and Department of Justice Reauthorization Act of 2005, Pub. L. No. 109-162, § 1177(b)(2), 119 Stat.

22 UNITED STATES V. PRICE

2960, 3125 (2006), and now prescribes a maximum sentence of no more than two years. ^[2] We generally expect that criminal laws subject to potentially more severe penalties would require more stringent mens rea requirements. See Staples, 511 U.S. at 618 (“[A] severe penalty is a further factor tending to suggest that Congress did not intend to eliminate a mens rea requirement.”); cf. United States v. Gomez-Leon, 545 F.3d 777, 793 (9th Cir. 2008) (“Commensurate with lesser punishment is a lesser mens rea requirement . . . .” (citation omitted)). Thus, Congress’s decision to expressly eliminate the mens rea requirements in § 2241 and § 2243 is not instructive of the proper interpretation of § 2244(b). Sections 2241 and 2243, with their harsh sentencing maximums, require the explicit statement that “the Government need not prove that the defendant knew” the age of the minor victim in order to overcome the strong presumption “that Congress did not intend to eliminate a mens rea requirement.” Staples, 511 U.S. at 618. Section 2244(b) does not give rise to the same strong presumption because its violation bears a dramatically less severe consequence. Moreover, § 2243(c) provides that mistake about age can be a defense, making § 2243(d) necessary to clarify that knowledge of age is not an element. Therefore, Congress’s decision not to explicitly eliminate the knowledge requirement in § 2244(b) is of no import. It would have been redundant to do so because it was already clear from the language of the statute itself, together with its relatively light penal consequence, that the On September 21, 2014, A.M., a twenty-one-year-old Japanese student, flew overnight from Tokyo to Los Angeles aboard American Airlines Flight 170. A.M. was accompanied by her friend, Maki Fujita. The two were on their way to visit Los Angeles and Las Vegas. Juan Pablo Price, then forty-six, was also a passenger on the flight. Price was en route to the United States from Vietnam, where he had just spent six months teaching English. Neither A.M. nor Fujita had met Price prior to the flight.

A.M. was assigned to sit in seat 26G, an economy aisle seat in the middle segment of her three-segment row. There were five seats in the middle segment of A.M.’s row: facing the front of the plane, the section was bookended by seat 26C on the left aisle and seat 26G on the right aisle. Fujita’s assigned seat was 26F, directly to A.M.’s left. The two seats to Fujita’s left, 26E and 26D, were unoccupied. Another passenger sat in seat 26C on the left aisle.

At some point during the approximately ten-hour flight, A.M.’s video monitor stopped functioning. Wanting to

78 UNITED STATES V. PRICE

watch a movie, A.M. caught the attention of Hidemori Ejima, a nearby flight attendant. Ejima tried to restart the video monitor but was unsuccessful. As a result, and with Ejima’s permission, A.M. and Fujita each moved one seat inward, towards the middle of their section, such that they each had a working monitor. A.M. was then seated in seat 26F and Fujita in 26E, leaving seat 26G unoccupied. Before changing her seat, A.M. had noticed Price staring at her from his window seat in 25J, which was positioned one row in front of A.M., diagonally across the aisle to her right. Despite thinking that Price was “creepy” and “looking at [her] too much,” A.M. did not pay him much attention.

Sometime thereafter, Price got up to use the bathroom. The nearest bathroom was located near row 27, one row past A.M. and Fujita, such that Price had to pass them to reach it. On his way to the bathroom, Price noticed that seat 26G was unoccupied, and as he was later returning to his seat, he asked A.M. if he could sit in 26G. A.M. thought there was “nothing [she could] do about” Price sitting next to her, so she said “okay.” She removed her handbag from the seat and Price collected his things from 25J and sat down in 26G.

About this time, Ejima noticed that Price had helped himself to seat 26G. Ejima approached Price and informed him that the video monitor for that seat was inoperable, but Price indicated that he wished to remain there. Price testified at trial that there was a small electric box below his originally assigned seat that constricted his leg room. The box was “several inches in diameter,” and, being a “tall person,” Price claimed that he would be more comfortable in a seat with more leg room. Ejima then offered Price seat 20D, a bulkhead seat that was a few rows closer to the front of the airplane, which had a working video monitor and three times as much legroom as 26G. Price declined. According to

UNITED STATES V. PRICE 79

Price, his refusal was partly due to his frequent need to use the bathroom, which stemmed from a medical condition. Seat 20D was located just seven rows from the bathroom, which Ejima estimated to be only about five meters away. Still, Price opted to remain in 26G.

Ejima was surprised that Price had turned down the opportunity to change seats from 26G to 20D because, in his twenty-five years as a flight attendant, Ejima had “never” seen a passenger turn down a seat with greater legroom. Puzzled, Ejima handed a note to Fujita, instructing them to alert Ejima if Price made them uncomfortable.

A.M. testified at trial that she and Price exchanged pleasantries after he sat down, but that Price eventually realized that she did not understand what he was saying in English. During their short conversation, Price asked A.M. about her drink, and she tried to explain to him that she was not drinking “regular wine.” (It was a mixture of red wine and Coca-Cola.) A.M. was not sure that Price understood, but he proceeded to order more red wine, which he poured in A.M.’s cup. A.M. did not really want to drink the wine Price had given her, but since she did not want to waste it either, she went ahead and drank it. A.M. estimated that her brief exchange with Price lasted five minutes.

Shortly thereafter, Fujita informed A.M. that Ejima had warned them to “watch out [for] the person sitting next to” them. A.M. interpreted this as having something to do with safeguarding her valuables. She then went to sleep with her blanket covering her lap and the armrest between her and Price in the down position.

80 UNITED STATES V. PRICE

A.M. woke up to Price “touching” the “right side of [her] body, [her] arm and [her] right side” including her “right leg and right hip” and rear pants pocket. At that point, A.M. thought that Price was attempting to steal her iPhone, so she moved it into the seat pocket on the back of the seat in front of her and went back to sleep. A.M. was awakened yet again by Price—this time because he was fondling her breast. In that moment, A.M. reports that she “could not understand at all” what was going on and that she “didn’t know what was happening” to her. She recalls being “so shocked” by Price’s unsolicited sexual advance that she went into “a state of panic.”

A.M. testified that she did not tell Price to stop because she “could not think straight” and, due to her panic, “could not remember” how to say “stop” in English. Instead, she responded by pulling up the blanket to her shoulders and crossing her arms to block his hands. A.M. next remembers that Price spread his blanket across the two of them to conceal his hands, and that he put his hand under her shirt and inside her jeans. Price then “put his hand under [her] underwear and [] started to touch [her] vagina.” At this point A.M. was “completely in panic” and “could not calm down.” She twisted her body toward Fujita on her left, away from Price. With “strong force,” Price then attempted to yank her back towards him and pull down her jeans. At this point, Fujita woke up and became aware of the situation. Concerned, she asked if A.M. was alright. A.M. responded that she was “not okay.” Seeing Fujita awake, Price settled back into his seat. A.M., pretending to go to the bathroom, went to the rear of the plane and found a female flight attendant whom she asked for help.

A.M. testified that at no point did she invite or consent— either expressly or impliedly—to being touched in any way

UNITED STATES V. PRICE 81

by Price. In fact, A.M. says she felt physically overpowered by Price, and that the encounter left her feeling “soiled,” “dirty,” and “embarrassed.”

Price testified at the trial. As the panel majority notes, the “objective facts” were “fairly undisputed,” see Opin. at 7, but Price’s testimony nonetheless differed from A.M.’s in several respects. Price stated that A.M. was “smiling” when he took his seat in 26G and that she offered him some of her beverage (though this claim is disputed by A.M.). Price claimed that they joked about the poor in-flight service and talked briefly about where they were from. He testified that he thought that A.M. might be interested in having a “good time” with him. Price readily admitted that his conversation with A.M. was limited by the language barrier—A.M., fluent only in Japanese, had informed Price of her limited ability to speak English. Nonetheless, Price said that they finished her glass of wine together and that he subsequently ordered more wine for them to share. After sharing a second glass of wine with A.M., Price recalls falling asleep.

According to Price, he awoke to A.M. touching his hand under his blanket, which he interpreted as an “invitation to something.” At trial, Price remembered the encounter this way:

I first felt her hand touching mine. So I thought she was initiating something. And that’s why I decided to find out if it was an accident or [if] she was trying to initiate something. . . .

....

82 UNITED STATES V. PRICE

I started [touching her] first with my pinky very subtly, very gently. I started rubbing her hand, the top of her hand. And then I went around her hand, and then she started rubbing me back with her thumb. . . .

....

After that we—we rubbed each other’s hand, and we held hands. I started massaging her arm with my other hand. And so I was massaging her arm. At that point I was looking at her. I saw that she was—she was looking straight to the video screen.

And so I—there was no doubt in my mind that she—she was liking it. She was rubbing my hand with her finger. I was rubbing her arm, and I moved up to her—the top part of her arm. And that’s when I started feeling the side of her breast. That’s how I—it was all slowly, gently, gradually. . . .

....

[A]fter touching her breast, I went down with my arm to her torso, and I put my arm around her torso. And then that’s—and then she put—she lifted her left arm and put it on top of my arm in a very gentle manner, like embracing my arm.

Price claimed that he then moved his hand down A.M.’s torso and eventually touched her vagina from the outside of her pants. He then reached inside her pants and put his hand

UNITED STATES V. PRICE 83

on her pubic area, though he stated that he could not unzip her pants because they were very “tight.” Price surmised that A.M. was “enjoying herself” based on her body language—he testified that she was “arching her body,” breathing intensely, and opening and closing her eyes.

Price recalls that, after he unsuccessfully tried to unzip her pants, A.M. got up and went to the bathroom. He testified that:

[A.M.] came back and she sat down, and I put my arm on her arm again and started rubbing her hand again. And then at one point I thought I’d take a step farther and have a more direct—more of a—I wanted to embrace her, and I wanted to have an open— you know, I didn’t want to—I didn’t want to be a secret anymore basically.

So I—so that’s when I tried to embrace her and I tried to kiss her. And then that’s when she turned away.

Price said that he felt “awkward” and “upset” when A.M. rebuffed his kiss. But at that point, he noticed that Fujita had woken up and that A.M. had turned her body away from him and toward Fujita. After A.M. whispered with Fujita, she got up and moved to the empty seat on the other side of Fujita. Price decided to write A.M. a note, which read: “If a man touches you and you don’t want him to, always feel free to say no.” After finishing the note, Price saw that A.M. was talking with Fujita and another passenger, and so, rather than give the note to A.M., he just placed it in his bag.

Price testified that he believed that A.M. was a consenting participant during the entire encounter.

84 UNITED STATES V. PRICE When she arrived at the rear of the plane, A.M. had trouble describing the encounter to the female flight attendant due to her limited English. However, Ejima, fluent in Japanese, was able to speak with her. In Japanese, A.M. explained to Ejima that, while she was asleep, Price began touching her from her “breasts . . . down to [her] pants” and that “he put his hand inside her pants.”

Yosri Zidan, the flight’s purser, having been informed of an “issue between two passengers,” joined A.M. in the rear of the plane. A.M. described the incident to Zidan in Japanese while another crew member interpreted. Zidan then had A.M. write a statement, which she wrote in Japanese. Ejima ultimately moved A.M. and Fujita to seats 33C and 33D, towards the rear of the plane.

Zidan had Price brought to the back of the plane and then asked him to provide his version of the incident. After interviewing Price, Zidan asked him to provide a written statement. In that statement, which was written on the back of a piece of paper from a nearby catering cart, Price described the encounter as consensual. Zidan then told Price that he was free to move about the aircraft so long as he did not go near A.M. and Fujita.

When the flight arrived at LAX, law enforcement officers were standing by. Among those who arrived at the scene was Customs and Border Protection Officer Kevin Humes, who performed a routine inspection of Price’s bags. During that search, Humes found the note Price had written to A.M. stating that, “[i]f a man touches you and you don’t want him to, always feel free to say no.”

UNITED STATES V. PRICE 85

Price was then interviewed by FBI Special Agent David Gates and another officer. Prior to the interview, Gates verbally advised Price of his Miranda rights and had Price sign a Miranda waiver. During the interview, Price again claimed that A.M. had initiated the encounter by touching his hand. However, Price admitted “that he knew it was wrong to be engaging like this with a stranger without having a proper conversation.” Price also said he touched A.M. because it “felt good.”

B

Price was indicted for unlawful sexual contact in violation of 18 U.S.C. § 2244(b). At trial, Price requested a jury instruction stating that the government must prove that he knew that A.M. had not consented to sexual contact. The district court rejected Price’s request, and instead instructed the jury consistent with the Ninth Circuit model jury instruction, which provided that the modifier “knowingly” in 18 U.S.C. § 2244(b) applies only to the clause “engages in sexual contact with another person.” See Manual of Model Criminal Jury Instructions § 8.180 (2010) (Ninth Cir. Jury Instructions Comm., amended 2019). Price appealed his conviction, and the panel affirmed. The panel divided 2– 1 on the issue of whether the district court properly denied Price’s requested instruction, but all three judges concluded that any error was harmless beyond a reasonable doubt.

II

The statute under which Price was convicted imposes criminal penalties on anyone who, within specified areas of federal jurisdiction (which include the LAX-bound international flight at issue here), “knowingly engages in sexual contact with another person without that other person’s permission.” 18 U.S.C. § 2244(b) (emphasis

86 UNITED STATES V. PRICE

added). 2 The panel majority holds that the term “knowingly” only applies to a portion of this single 13-word phrase, and not to the entirety of the phrase. Opin. at 10–25. Specifically, the majority concludes that the “most natural grammatical reading” of the phrase is that the “term ‘knowingly’ modifies only the verb phrase ‘engages in sexual contact with another person’ and does not modify the adverbial prepositional phrase ‘without that other person’s permission.’” Id. at 12. According to the majority, this supposedly “natural grammatical reading” is so overwhelmingly linguistically preferable that it liberates the panel majority from having to apply any of the relevant interpretive canons established by the Supreme Court and invoked by Judge Gilman in his separate opinion. For multiple reasons, the panel majority’s reading of the statute is untenable.

As an initial matter, the panel majority’s construction of § 2244(b) cannot be correct, because it would render the word “knowingly” wholly surplusage.

According to the panel, the only role that “knowingly” plays in § 2244(b) is to modify the phrase “engages in sexual contact with another person,” presumably to distinguish between those who engage in such contact wittingly and those who do so unwittingly. The problem with this reading is that it overlooks the express statutory definition of the term “sexual contact,” which already contains a more demanding scienter requirement that applies to the underlying act of intimate contact. See 18 U.S.C. § 2246 (providing definitions for “this chapter,” i.e., chapter 109A of Title 18, which includes § 2244). As defined in § 2246, “the term ‘sexual contact’ means the intentional touching, either directly or through the clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks of any person with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person.” 18 U.S.C. § 2246(3) (emphasis added). Reading § 2244(b) together with this accompanying definition of “sexual contact,” a person thus only “knowingly engages in sexual contact with another person” by “knowingly engaging in the intentional touching” of specified intimate body parts with a specific “intent to abuse, humiliate,” etc. 18 U.S.C. §§ 2244(b), 2246(3) (emphasis added). Because one cannot unknowingly engage in intentional touching—much less do so with the specific “intent” required by the statute—the majority’s reading of § 2244(b) renders the word “knowingly” wholly superfluous, if not nonsensical. Why would Congress add a lesser scienter requirement (“knowingly”) for the sole

88 UNITED STATES V. PRICE

purpose of modifying a phrase that already requires “intentional” conduct performed with a particular specific intent?

By applying the word “knowingly” only to the portion of § 2244(b) that is expressly defined as “intentional touching,” see Opin. at 12, the majority’s reading of “knowingly” thus wrongly renders that word “nonsensical and superfluous,” thereby violating “one of the most basic interpretive canons,” namely, “that a statute should be construed so that effect is given to all its provisions, so that no part will be inoperative or superfluous, void or insignificant.” Corley v. United States, 556 U.S. 303, 314 (2009) (simplified). The only non-superfluous role that the word “knowingly” can have in § 2244(b) is to modify the entire phrase “knowingly engages in sexual contact with another person without that other person’s permission”—including the final adverbial prepositional phrase. On this basis alone, the only viable reading of § 2244(b) is that it requires the Government to prove that the defendant “knowingly” acted “without that other person’s permission.” See Jones v. United States, 529 U.S. 848, 857 (2000) (“Judges should hesitate to treat statutory terms in any setting as surplusage, and resistance should be heightened when the words describe an element of a criminal offense.” (simplified)).

In their concurrence in the denial of rehearing en banc, the panel majority defends its choice to read “knowingly” out of the statute by claiming that a similar and consistent application of the canon against surplusage to the other subsections of § 2244 would produce absurd results. Denial Concur. at 58–64. That claim is both irrelevant and wrong.

UNITED STATES V. PRICE 89 a

As an initial matter, the logic of the panel majority’s syllogism simply does not follow. Even if the panel majority were correct in contending that application of the canon against surplusage to the differently worded provisions in § 2244(a) and § 2244(c) would lead to absurd results—and it is not correct—all that would establish is that those provisions should perhaps be construed as containing surplusage (on the theory that, as to those provisions, the canon against surplusage must yield to the competing canon against absurd results). But the panel majority never argues that application of the canon against surplusage to § 2244(b) would yield absurd results, and it is clear that applying that canon to § 2244(b) would not do so. Accordingly, the panel majority’s detour through § 2244(a) and § 2244(c)—two provisions that have nothing whatsoever to do with this case—is entirely beside the point. b

For the reader who nonetheless is interested in the majority’s lengthy—and completely irrelevant—excursus on § 2244(a) and § 2244(c), it is worth explaining why the premise of the panel majority’s faulty syllogism is also wrong: applying the canon against surplusage to those two subsections would not produce absurd results.

(i)

Section 2244(a) punishes a person who, within federal jurisdiction, “knowingly engages in or causes sexual contact with or by another person, if to do so would violate” a series of cross-referenced subsections (each of which prohibits certain “sexual acts”), “had the sexual contact been a sexual act.” 18 U.S.C. § 2244(a)(1)–(5) (emphasis added). Section

90 UNITED STATES V. PRICE

2244(a) thus specifies that all of the cross-referenced circumstances in which a “sexual act” is criminal also apply to “sexual contact” if the additional element in § 2244(a) is shown—i.e., that the person “knowingly engages in or causes sexual contact with or by another person.” The panel majority focuses on § 2244(a)’s cross-reference to 18 U.S.C. § 2241(c), which (inter alia) makes it a crime to “knowingly engage[] in a sexual act with another person who has not attained the age of 12 years.” By cross-referencing this provision, § 2244(a) would thus be violated if (inter alia) (1) the defendant “knowingly engages in . . . sexual contact with . . . another person,” 18 U.S.C. § 2244(a); and (2) he or she “knowingly engages in [that sexual contact] with another person who has not attained the age of 12 years,” 18 U.S.C. § 2241(c) (replacing “sexual act” with “sexual contact” as per 18 U.S.C. § 2244(a)(5)) (emphasis added). According to the panel majority, in light of the definition of sexual contact as requiring intentional touching, applying the canon against surplusage to § 2244(a)’s incorporation of § 2241(c) would lead to the conclusion that “knowingly” in the above-italicized phrase must extend to “with another person who has not attained the age of 12 years.” See Denial Concur. at 60–62. That, however, would run contrary to the express statutory provision, in 18 U.S.C. § 2241(d), that “[i]n a prosecution under subsection (c) of this section, the Government need not prove that the defendant knew that the other person engaging in the sexual act had not attained the age of 12 years.” See Denial Concur. at 62.

This argument is difficult to fathom. When § 2244(a) states that the conduct must be such that it “would violate . . . subsection (c) of section 2241 of this title had the sexual contact been a sexual act,” 18 U.S.C. § 2244(a)(5) (emphasis added), it necessarily carries over all provisions that define what constitutes a “violat[ion]” of § 2241(c)—including

UNITED STATES V. PRICE 91

§ 2241(d). Therefore, to the extent that § 2244(a)’s incorporation of § 2241(c) would otherwise have required proof of knowledge that the victim was under age 12, § 2241(d) carries over as well and negates that inference. Applying the ordinary rules of statutory construction to § 2244(a)’s incorporation of § 2241(c) thus does not lead to any conflict with congressional intent or to an absurd result.

The panel majority further insists, however, that (even setting aside any such issues arising from § 2244(a)’s cross- referencing of other provisions) applying the § 2246(3) definition of “sexual contact” to § 2244(a) leads to the further problem that the word “knowingly” in § 2244(a) itself would be rendered surplusage. According to the panel majority, because the “sexual contact” must be intentional (under § 2246(3)), the word “knowingly” in the key phrase “knowingly engages in or causes sexual contact with or by another person,” 18 U.S.C. § 2244(a), has no work to do and is surplusage. ^[3] Again, it is difficult to fathom what the panel majority thinks it has proved by making this argument. At best, it would establish that there may be surplusage in § 2244(a) that cannot be avoided. But the canon against surplusage is not an ironclad rule: it merely “requir[es] a court to give effect to each word ‘if possible’” and may in some cases be “‘countered . . . by some maxim pointing in a different direction.’” Chickasaw Nation v. United States,

3 I agree with the panel majority that “knowingly” in this phrase cannot be construed to apply to the subsequent language in § 2244(a) that cross-references the various other provisions of Chapter 109A of Title 28 of the U.S. Code. That language is set off by precisely the sort of interruptive punctuation and phrasing that is missing in § 2244(b)— that language is contained in a separate clause beginning with “if” that is set off by a comma and then followed by an em dash and five lengthy separate subsections. See United States v. X-Citement Video, Inc., 513 U.S. 64, 68 (1994).

92 UNITED STATES V. PRICE

534 U.S. 84, 94 (2001) (emphasis in original) (citations omitted).

In any event, the panel majority is wrong in concluding that “knowingly” has no work to do in § 2244(a). The panel majority overlooks the fact that, because § 2244(a) (unlike § 2244(b)) also applies to a defendant who “causes sexual contact with or by another person,” § 2244(a) can also be applied to a defendant who is different from the person who actually performs the sexual contact. Cf., e.g., Hammond v. Gordon County, 316 F. Supp. 2d 1262, 1289 (N.D. Ga. 2002) (reviewing evidence that prison guards instructed inmates to engage in sex with each other). The added words in § 2244(a) thus would encompass situations in which the two scienter requirements—“knowingly” (in § 2244(a) itself) and “intentional” (from the definition of “sexual contact” in § 2246(3))—are not redundant because they apply to separate people. ^[4]

In short, the panel majority fails in its effort to show that ordinary principles of statutory interpretation, as applied to § 2244(a), would produce any absurdity or surplusage. The panel majority’s discussion of this irrelevant statute—which

4 I am myself perplexed that the panel majority finds my citation of Hammond “perplexing.” See Denial Concur. at 61 n.8. To defeat a contention that a word in a statute is surplusage, it suffices to show that there are conceivably some fact patterns in which the word would play a role. Here, Hammond illustrates one sort of fact pattern that, as I explain in the text, disproves the majority’s charge of surplusage with respect to § 2244(a). Because surplusage arguments are based on the text of the statute and the categories of conduct that the words of the statute proscribe, it is irrelevant whether there has yet been a case that has actually applied § 2244(a) in this manner. And I emphatically disagree with the panel majority’s suggestion that it would be “absurd” to extend § 2244(a) to reach the sort of conduct described in Hammond.

UNITED STATES V. PRICE 93 is not the statute at issue in this case—is thus ultimately a distraction.

(ii)

The panel majority is even more wide of the mark in suggesting that applying the canon against surplusage would “interfere[] with the straightforward application of § 2244(c).” See Denial Concur. at 63. Section 2244(c) doubles the maximum term of imprisonment “[i]f the sexual contact that violates this section (other than subsection (a)(5)) is with an individual who has not attained the age of 12 years.” 18 U.S.C. § 2244(c). According to the panel majority, “[a]pplying the dissent’s logic, the mens rea of ‘knowingly’ would apply to the age element of § 2244(c).” Denial Concur. at 63. This strawman argument is incomprehensible, because the word “knowingly” does not even appear in § 2244(c). The text of § 2244(c) merely requires (1) “sexual contact that violates this section”; and (2) that such sexual contact “is with an individual who has not attained the age of 12 years.” 18 U.S.C. § 2244(c) (emphasis added). There is no requirement that the defendant know that the individual was under age 12. Applying ordinary rules of statutory construction to § 2244(c) thus produces no problem with either surplusage or absurdity.

* * *

In sum, the panel majority’s lengthy digression concerning the text of § 2244(a) and § 2244(c)—neither of which is at issue in this case—is ultimately nothing more than a red herring.

94 UNITED STATES V. PRICE

B

The panel majority’s construction of § 2244(b) fails for the additional reason that it flagrantly violates the Supreme Court’s clear—and recently reiterated—instructions about how to read scienter terms in criminal statutes. Specifically, the panel majority contravenes two distinct canons of construction about how to read the scope of a statute’s express knowledge requirement.

The first canon is that, “‘[a]s a matter of ordinary English grammar,’ [courts] normally read the statutory term ‘“knowingly” as applying to all the subsequently listed elements of the crime.’” Rehaif v. United States, 139 S. Ct. 2191, 2196 (2019) (quoting Flores-Figueroa v. United States, 556 U.S. 646, 650 (2009)). Under this “normal[]” rule, the modifier “knowingly” in § 2244(b) therefore applies to the entirety of the phrase “engages in sexual contact with another person without that other person’s permission.” 5 18 U.S.C. § 2244(b). The panel majority simply defies Rehaif on this point, insisting that the panel majority’s own understanding of “ordinary grammar,” Denial Concur. at 64, is better than the “ordinary English The majority violates a further canon of construction that was expressly reaffirmed in Rehaif. As Rehaif explained, a court addressing how the word “knowingly” applies in a criminal statute must “start from [the] longstanding presumption, traceable to the common law, that Congress intends to require a defendant to possess a culpable mental state regarding each of the statutory elements that criminalize otherwise innocent conduct.” 139 S. Ct. at 2195 (emphasis added) (citation and internal quotation marks omitted). The application of this presumption here is straightforward, and it requires applying the knowledge requirement to § 2244(b)’s without-permission element.