U.S. v. Krstic

• Decision Date: 10 March 2009
• Docket Number: No. 08-30022.,08-30022.
• Citation: 558 F.3d 1010
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Milenko KRSTIC, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

558 F.3d 1010

UNITED STATES of America, Plaintiff-Appellant, v. Milenko KRSTIC, Defendant-Appellee.

No. 08-30022.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted December 8, 2008.

Filed March 10, 2009.

David L. Atkinson, Assistant United States Attorney, Portland, OR, argued the cause for the plaintiff-appellant and filed the briefs. Karin J. Immergut, United States Attorney, District of Oregon, was on the briefs.

Christopher J. Schatz, Assistant Federal Public Defender, Portland, OR, argued the cause for the defendant-appellee and filed the brief.

Appeal from the United States District Court for the District of Oregon, Anna J. Brown, District Judge, Presiding. D.C. No. CR-07-00047-BR.

Before: DIARMUID F. O'SCANNLAIN, SUSAN P. GRABER, and JAY S. BYBEE, Circuit Judges.

O'SCANNLAIN, Circuit Judge:

We are confronted with a thorny question of statutory interpretation to discern whether an alien may be prosecuted for possession of an authentic immigration document obtained by means of a false statement.

I

A

Milenko Krstic, a Serbian national, worked as an engineer in the Bosnian city of Banovici until civil war broke out in 1992. After Bosnian authorities imposed curfews and employment restrictions in Banovici, Krstic and his family fled to several war-torn locations throughout Serbia and Bosnia-Herzegovina. Eventually, Krstic found himself conscripted into the Army of Republika Srpska. Krstic maintains that he spent the following three years performing "office work and other clerical tasks." The government asserts that Krstic's brigade "had been involved in the massacre of a large number of unarmed Muslim prisoners in 1995, in areas in close proximity to [Krstic]'s duty station."

In 1998, three years after leaving the military, Krstic and his family emigrated to the United States. As part of a refugee application, Krstic filled out an I-590 form,¹ which requires, among other things, applicants to disclose foreign military service. Krstic contends that "someone wrote `not served' in English" on the form. The government also claims that Krstic denied having served in the military "during a sworn, personal interview administered in Belgrade." Krstic and his family were nevertheless granted refugee status and admitted to the United States.

Krstic and his family moved to Portland, Oregon. One year later, in 1999, they applied to become lawful permanent residents. As part of the application, Krstic filled out an I-485 form,² which also asks applicants to report any prior foreign military service. Krstic again did not disclose his service in the Army of Republika Srpska. Nevertheless, Krstic was issued an alien registration receipt card (the so-called "green card").

In 2005, the International Criminal Tribunal for the former Yugoslavia reported Krstic's military service to American immigration authorities. Federal agents entered Krstic's home and interviewed him. Krstic admitted to serving in the military but denied committing any war crimes. On December 11, 2006, approximately seven years after Krstic completed his permanent resident application, agents seized Krstic's green card.³

B

Two months later, a grand jury for the District of Oregon returned an indictment charging Krstic with violating the first paragraph of 18 U.S.C. § 1546(a). The superseding indictment, filed on October 16, 2007, alleged in relevant part that

[Krstic] ... did knowingly possess an alien registration receipt card ... which [he] knew to have been procured by means of materially false claims and statements and otherwise fraudulently obtained, in that [Krstic] stated ... that [he] had never served in the military, thereby failing to reveal that, in truth and in fact, [Krstic] was a member of the Zvornik Infantry Brigade ... in violation of Title 18, United States Code, Section 1546(a).

The indictment did not allege that the alien registration receipt card itself was forged, counterfeited, altered, or falsely made. Rather, it simply charged Krstic with obtaining an alien registration card by means of a false statement.

Krstic moved to dismiss the indictment, contending that possessing an authentic immigration document procured by means of a false statement does not constitute an offense under § 1546(a). He argued that § 1546(a) criminalizes possession only of an already forged, counterfeited, altered, or falsely made immigration document. The district court agreed with Krstic and dismissed the indictment. The United States timely appealed.

II

A

We have a classic question of statutory interpretation to resolve. We begin, as we must, with the text of the statute. The first paragraph of § 1546(a) provides in relevant part:

Whoever knowingly forges, counterfeits, alters, or falsely makes any immigrant or nonimmigrant visa, permit, border crossing card, alien registration receipt card, or other document ... or ... possesses ... any such visa, permit, border crossing card, alien registration receipt card, or other document... knowing it to be forged, counterfeited, altered, or falsely made, or to have been procured by means of any false claim or statement ... [shall be punished].

§ 1546(a) (emphases added).

At first glance, the statute appears to prohibit two independent acts. The first part criminalizes "knowingly forg[ing], counterfeit[ing], alter[ing], or falsely mak[ing]" an immigration document. The second part seems to punish "possess[ing]" an immigration document "knowing it to be forged, counterfeited, altered, or falsely made, or to have been procured by means of any false claim or statement." The government urges us to interpret the statute in this bifurcated way.

The words "any such," however, which appear between the paragraph's two halves, complicate our task. Krstic contends that "any such" refers back to the phrase "knowingly forges, counterfeits, alters, or falsely makes any immigrant or nonimmigrant visa." In Krstic's view, the statute contemplates an immigration document that has been forged, counterfeited, altered, or falsely made, not an authentic document. The government, on the other hand, maintains that "any such" is shorthand for the phrase "immigrant or nonimmigrant." According to the government, "[t]here is simply no reason why the verbs from the first clause should be converted into adjectives applicable to the second."

In our view, neither side has the better of this argument. The Second Edition of the Oxford American Dictionary defines "such," which is a demonstrative adjective in this context, as "of the type previously mentioned." See Bahre v. Hogbloom, 162 Conn. 549, 295 A.2d 547, 552 (1972) ("The word `such' ha[s] been construed as a related adjective referring back to and identifying something previously spoken of and that ... naturally, by grammatical usage, refers to the last precedent."); Black's Law Dictionary 1473 (8th ed.2004) ("[t]hat or those; having just been mentioned"). No bright-line rule governs this area of the English language. "Such" can refer exclusively to preceding nouns and adjectives. It can also refer to surrounding verbs, adverbial phrases, or other clauses. Context is typically determinative. Unfortunately, context does not help us here. Section 1546(a) "is certainly not a model of good draftsmanship; a better description would be that it is a masterpiece of obfuscation." United States v. Tamayo, 427 F.2d 1072, 1073 (9th Cir.1970). Indeed, with this section, Congress has achieved in a single 124-word sentence a level of confusion it usually takes pages to create. In this statute, there are several candidates for the "last precedent." "Such" could refer solely to "immigrant or nonimmigrant" as the government urges, or it could refer also to "forges, counterfeits, alters, or falsely makes" as Krstic contends. The plain language of the statute compels neither the government's reading nor Krstic's reading. The statute's text leaves us in perfect equipoise.

B

Attempting to push us one way or the other, Krstic and the government collect a hodgepodge of additional arguments, none of which convinces us.

Krstic contends that dicta in United States v. Campos-Serrano, 404 U.S. 293, 92 S.Ct. 471, 30 L.Ed.2d 457 (1971), supports his interpretation. He emphasizes the following sentence from that opinion: "The statutory provision in question [§ 1546(a)] prohibits, inter alia, the counterfeiting or alteration of, or the possession, use, or receipt of an already counterfeited or altered immigrant or nonimmigrant visa, permit, or other document required for entry into the United States." Id. at 295, 92 S.Ct. 471 (emphasis added) (internal quotation marks omitted).

Campos-Serrano cannot support the weight Krstic places upon it. There, the Court resolved the question whether possession of an already counterfeited "alien registration receipt card" was "an act punishable under [an earlier version of] 18 U.S.C. § 1546." Id. The Court did not address whether § 1546(a) requires an already forged or counterfeited document; rather, it concluded that an alien registration receipt card was not a "document required for entry into the United States" under the 1971 version of § 1546(a).⁴ Id. at 301, 92 S.Ct. 471. The passage on which Krstic relies merely serves as general background information about the statute; it does not purport to be a comprehensive catalog of all conduct prohibited by the statute. The Court's usage of the phrase "inter alia" confirms this reading. Id. at 295, 92 S.Ct. 471.

Krstic also contends that the word "procured," as used in § 1546(a), refers to "a falsely made immigration document obtained through some third party's false claim or statement" (emphasis added). Krstic's position apparently is that one cannot "procure" something for oneself; rather, "procure" requires "an indirect object." In support of this contention, Krstic cites two dated state court cases for the proposition that "procure" requires "a second actor." See State v. Desmarais, 81...