9th Cir.: 18 U.S.C. § 1546(a); First Paragraph Contains Two Crimes

by Mark Heller

U.S. v. Krstic (9th Cir., March 10, 2009)
O’SCANNLAIN, Graber, Bybee

Appellee here, a Serbian, was indicted for violating the first paragraph of 18 U.S.C. § 1546(a) in that he was in possession of an LPR card alleged to have been fraudulently obtained through false claims or statements, i.e., that he did not reveal his military service in the Army of Republika Srpska (VRS).  [The VRS has been designated by the International Court of Justice in the Hague as the institution that participated int he commission of war crimes and genocide in Bosnia against Bosniaks and Bosnian Croats.  The military leader of VRS was General Ratko Mladic, indicted at the International Criminal Tribunal for the Former Yugoslavia for genocide]. Appellee was asked during his immigration processing for both refugee status and LPR status if he performed military service and said no in all instances.  Almost seven years after receiving his LPR card it was seized after an investigation triggered by a report to American immigration authorities by the International Criminal Tribunal for the former Yugoslavia.  He was then indicted under 1546(a) but the federal district court agreed with his argument that his false statement didn’t violate 1546(a) and dismissed the indictment, reasoning there was no violation since he was not in possession of an “already forged, counterfeited, altered, or falsely made immigration document.”         

The first paragraph of § 1546(a) reads: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].   

Krstic’s successful argument below was that the use of the adjective “such”  in paragraph one referred back to a false document, not a legitimate one like his.       The government’s argument was that the statute criminalized two different behaviors: (1) creation of false documents or (2) knowingly possessing a false document or one obtained by false claim or statement.      

The 9th Cir. stated:

1.         Neither side had the better of the grammatical argument.

2.         None of the other textual arguments (“a hodgepodge”) were convincing to O’Scannlain, and so the following arguments were rejected:  (a) U.S. v. Campos-Serrano, 404 U.S. 293 (1971), a case re an earlier version of the statute here, did not rule on the issue here.  (b) Krstic argued that “procured” referred to someone else, not him, making the false statement or claim.  (c) Gov’t argued that “if Congress intended the phrase ‘any such visa’ in the second clause to refer back to an already forged or counterfeited document, there would have been no reason to repeat the words ‘forged, counterfeited, altered, or falsely made’ in the second clause.”  The court here said the use of the phrase the first time referred to the forger whereas second use of the phrase refers to the possessor who knows of the forging.

3.         The history of the statute “satisfies us that [its] first paragraph does not require proof of an already forged, counterfeited, altered, or falsely made immigration document.  The section prohibits possessing an otherwise authentic document that one knows has been procured by means of a false claim or statement.”

4.         “Common sense also confirms our interpretation.”  O’Scannlain points out that reading the first paragraph as only applying to already false documents would leave behind the obvious harm of using or possessing a document procured by fraud or false statements.

5.         Since this is a possessory offense and not a false statement offense it is a continuing offense and therefore the prosecution here is not barred by a default statute of limitations of five years.  (False claims or statements here made in 1998 and 1999 while the superseding indictment filed in 2007).

6.         There is no violation of 5th or 6th Amendments by treating this as a continuing offense.  O’Scannlain believed the constitutional arguments here bordered on the frivolous.  

Reversed the district court’s dismissal of the indictment and remanded for further proceedings.  

Read the opinion here 

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