Tenth Circuit’s Opinion Affirming Defendant’s Convictions Hinges on the Definition of the Word “The”

A frequently quoted portion of Bill Clinton’s grand jury testimony in connection with his impeachment 

showed him questioning the precise use of the word “is”. Contending his statement that “there’s nothing going on between us” had been truthful because he had no ongoing relationship with [Monica] Lewinsky at the time he was questioned, Clinton said, “It depends on what the meaning of the word ‘is’ is. If the—if he—if ‘is’ means is and never has been, that is not—that is one thing. If it means there is none, that was a completely true statement.”

Now, a Tenth Circuit case has hinged on the meaning of the word “the.” 

In United States v. Lopez, 2025 WL 837866 (10th Cir. 2025), Martin Lopez was convicted of carjacking and brandishing a firearm in furtherance of a crime of violence. On appeal, he claimed, inter alia, that the prosecutor erred by saying during closing argument that “[Mr. Lopez] was counting on his threats to scare away the witnesses that you heard from.” “Lopez characterize[d] this statement as an argument that all the witnesses had been threatened.”

According to the court,

This characterization rests on grammatic parsing of the reference to “the witnesses.” The article the is definite. And when the is followed by a plural noun, the combination can suggest either all or some, depending on the context….

Perhaps the government used the to mean that Mr. Lopez had threatened all the witnesses. If so, the statement would have been inaccurate because there was no evidence of a threat against Mr. Padilla. But this interpretation isn’t the only plausible one. The definite article the sometimes means some or many rather than all….

We need not parse the context of the government’s reference to the witnesses. The jury might have interpreted this term to refer either to some or all of the witnesses. But the government’s use of the definite article (the witnesses) was ambiguous. Given the ambiguity of the definite article in the context of the government’s statement, the reference to the witnesses wasn’t plainly improper. 

-CM