FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

No. 08-30022 Plaintiff-Appellant,

D.C. No.

v.  CR-07-00047-BR

MILENKO KRSTIC,

OPINION Defendant-Appellee. 

Appeal from the United States District Court

for the District of Oregon

Anna J. Brown, District Judge, Presiding

Argued and Submitted

December 8, 2008—Portland, Oregon

Filed March 10, 2009

Before: Diarmuid F. O’Scannlain, Susan P. Graber, and

Jay S. Bybee, Circuit Judges.

Opinion by Judge O’Scannlain

3025
COUNSEL

David L. Atkinson, Assistant United States Attorney, Portland, Oregon, 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, Oregon, argued the cause for the defendant-appellee

and filed the brief.

3028 UNITED STATES v. KRSTIC
OPINION

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 BosniaHerzegovina. 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

1The I-590 form was required by the then Immigration and Naturalization Service for admission to the United States as a refugee. It was styled:

“Registration for Classification as a Refugee.” 

UNITED STATES v. KRSTIC 3029
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

2The I-485 form, styled “Application to Register as a Permanent Resident Or Adjust Status,” is required as part of an application to become a

lawful permanent resident of the United States. 

3This statement of facts reflects what the parties have stated they intend

to present at trial. We do not rely on these statements as evidence in this

appeal, but provide this summary as context for the purely legal questions

presented. 

3030 UNITED STATES v. KRSTIC
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].

UNITED STATES v. KRSTIC 3031
§ 1546(a) (emphases added). 

[1] 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.

[2] 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, 295 A.2d 547, 552 (Conn. 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. 

3032 UNITED STATES v. KRSTIC
[3] 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.

1

Krstic contends that dicta in United States v. CamposSerrano, 404 U.S. 293 (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 (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 docuUNITED STATES v. KRSTIC 3033
ment; 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).4Id. at 301. 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.

2

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,

123 A. 582, 583 (N.H. 1924); People v. Roderigas, 49 Cal. 9,

11 (1874). 

We are not persuaded. It is plainly possible to “procure”

something for oneself. Dictionaries do not define “procure” to

distinguish between things procured by third parties and

things obtained by oneself. See, e.g., Cambridge Dictionary of

American English (“to obtain (something), esp. after an

effort”). Furthermore, Krstic’s state court cases do not stand

for the proposition that only a third party may “procure”

something. Indeed, the Desmarais court said precisely the

opposite: “[To procure] means to obtain for one’s self or for

another.” Desmarais, 123 A. at 583 (emphasis added). Krstic

is correct that the Roderigas court “interpret[ed a] statute barring the procurement of a female to be ‘with any man’ as

requiring one man as the procurer and another man as the

4Section 1546(a) was later amended to include alien registration receipt

cards. 

3034 UNITED STATES v. KRSTIC
indirect object for whom the female is procured.” The statute

at issue in Roderigas, however, required such an interpretation of “procure.” See Roderigas, 49 Cal. at 11 (“[The Act

refers to one] ‘who procures the gratification of the passion of

lewdness for another’ ” (emphasis added)). In addition, the

Roderigas court’s holding was limited to the distinct context

of prostitution, in which “procure” carries its own distinctive

meaning. See Webster’s Third New International Dictionary

(1986), (“[T]o get possession of (women) and make available

for promiscuous sexual intercourse (as in a house of prostitution).”).5

3

The government proposes its own tiebreaker, arguing that

“[i]f 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.” 

We disagree. Although the two phrases are worded identically, they refer to different actors. The first use of the phrase

“forged, counterfeited, altered, or falsely made” refers to the

forger; the second use of the same phrase refers to the possessor who knows of the forging. In other words, the first part of

the paragraph prohibits knowingly forging, counterfeiting,

5Krstic also argues that the phrase “have been procured” is in the present perfect tense, meaning that Congress contemplated “an act that has

been completed.” This somehow means, according to Krstic, that “the

‘have been procured by means of any false claim or statement’ component

in the second clause of paragraph one in § 1546(a) is most reasonably

understood as referring to the past activity of a third party that resulted in

a fraudulently produced immigration document that was found in the

accused’s possession” (emphasis added). We reject this contention. The

tense of a verb does not usually, by itself, limit its subject. It is of course

possible for the alien himself, rather than some third party, to “complete”

an “act.” 

UNITED STATES v. KRSTIC 3035
altering, or falsely making any immigration document; the

second part of the paragraph proscribes knowingly possessing

an immigration document that the possessor knows was

forged, counterfeited, altered, or falsely made. Ambiguity

remains.

III

[4] Because we cannot decide this case on textual grounds

alone, we turn to the history of the statute. Section 1546(a)’s

first paragraph originated as section 22 of the Immigration

Act of 1924. In original form, it read:

Any person who knowingly (1) forges, counterfeits,

alters, or falsely makes any immigration visa or permit, or (2) utters, uses, attempts to use, possesses,

obtains, accepts, or receives any immigration visa or

permit, knowing it to be forged, counterfeited,

altered, or falsely made, or to have been procured by

means of any false claim or statement, or to have

been otherwise procured by fraud or unlawfully

obtained [shall be punished]. 

Immigration Act of 1924, ch. 190, § 22(a), 43 Stat. 153, 165.

[5] Here, thankfully, the inscrutable words “any such” are

missing, and two numbered subsections, separated by the

word “or,” are present. This statute prohibited possessing an

authentic immigration document knowing that it was procured

by means of a false statement. Without the key words “any

such,” the statute’s two numbered subsections, separated by

the word “or,” described independent ways by which one

could break the law. One could violate the statute either by

forging an immigration document or by possessing a document knowing that it has been procured by means of a false

claim or statement. 

3036 UNITED STATES v. KRSTIC
[6] Based upon our review of later amendments to

§ 1546(a), we are convinced that Congress did not intend to

narrow the law’s scope to include only inauthentic documents. In 1952, Congress altered § 1546(a)’s first paragraph

by expanding the list of immigration documents and by

adding the words “any such” for the first time.6See Immigration and Nationality Act, Pub. L. No. 82-414, § 402(a), 66

Stat. 163, 275 (1952). Specifically, the 1952 amendments

expanded the list of documents from any “immigration visa or

permit” to any “immigrant or nonimmigrant visa, permit, or

other document required for entry into the United States.” Id.

It also replaced the word “immigration” with “such.” Id.

These changes plainly were designed to expand the statute’s coverage to include “immigrant and nonimmigrant”

visas, permits, and other immigration documents. Nothing in

the amendments suggests that Congress intended to require,

for the first time, an already forged or counterfeited document. The word “such” was probably added, in an unfortunate

attempt to simplify the statute, to avoid repeating the newly

added words “immigrant or nonimmigrant.” A comparison of

the 1952 statute with the 1948 version confirms this interpretation: 

Whoever knowingly forges, counterfeits, alters, or

falsely makes any immigration visa or permitimmigrant or nonimmigrant visa, permit, or other document required for entry into the United States, or

utters, uses, attempts to use, possesses, obtains,

accepts, or receives any immigrationsuch visa or,

permit, or document, knowing it to be forged, counterfeited, altered, or falsely made, or to have been

procured by means of any false claim or statement,

6Congress amended the statute once between 1924 and 1952. In 1948,

Congress replaced the words “Any person who” with “Whoever knowingly” and removed the numbers. See Act of June 25, 1948, ch. 645, § 1546,

62 Stat. 683, 771. 

UNITED STATES v. KRSTIC 3037
or to have been otherwise procured by fraud or

unlawfully obtained.7

Congress amended § 1546(a) again in 1986 to reverse the

Supreme Court’s decision in Campos-Serrano, which, as discussed above, held that an alien registration receipt card was

not a “document required for entry into the United States.”

See Immigration Reform and Control Act of 1986, Pub. L.

No. 99-603, § 103(a), 100 Stat. 3359, 3380. The new version

expanded the list of documents to include “border crossing

card[s]” and “alien registration receipt card[s].” Id. It also

replaced the phrase “required for entry into” with “prescribed

by statute or regulation for entry into or as evidence of authorized stay or employment in.” Id. A comparison of the 1986

statute with the 1952 version confirms that Congress intended

to expand the list of documents:

Whoever knowingly forges, counterfeits, alters, or

falsely makes any immigrant or nonimmigrant visa,

permit, border crossing card, alien registration

receipt card, or other document required for entry

intoprescribed by statute or regulation for entry into

or as evidence of authorized stay or employment in

the United States, or utters, uses, attempts to use,

possesses, obtains, accepts, or receives any such

visa, permit, orborder crossing card, alien registration receipt card, or other document prescribed by

statute or regulation for entry into or as evidence of

authorized stay or employment in the United States,

knowing it to be forged, counterfeited, altered, or

falsely made, or to have been procured by means of

any false claim or statement, or to have been otherwise procured by fraud or unlawfully obtained.8

7The strike-through text was present in the 1948 version of the statute

but deleted in 1952. The underlined text was added in 1952. 

8The strike-through text was present in the 1952 version of the statute

but deleted between 1952 and 1986. The underlined text was added in

1986. 

3038 UNITED STATES v. KRSTIC
There is no indication that Congress intended § 1546(a)’s first

paragraph to require an already forged, counterfeited, altered,

or falsely made document. 

[7] The statutory history satisfies us that § 1546(a)’s 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.9

IV

Common sense confirms our interpretation. As the government correctly points out, reading § 1546(a)’s first paragraph

as applying only to an already forged or counterfeited immigration document results in “leaving beyond the statute’s

scope the obvious harm of using or possessing an authentic

document that one knows to have been procured by fraud or

false statement to immigration authorities.” To be sure, Krstic

could have been charged under the fourth paragraph of

§ 1546(a), as well as 8 U.S.C. § 1306(c), two provisions that

prohibit making false statements to immigration authorities.

The first paragraph of § 1546(a), however, criminalizes acts

that neither the fourth paragraph of § 1546(a) nor 8 U.S.C.

§ 1306(c) covers: possession of an immigration document that

9Krstic contends that because § 1546(a)’s statutory text is ambiguous,

the rule of lenity, which “requires ambiguous criminal laws to be interpreted in favor of the defendants subjected to them,” United States v. Santos, 128 S. Ct. 2020, 2025 (2008), compels us to construe the statute in

Krstic’s favor. We disagree. Resort to the rule of lenity is appropriate

“only when a reasonable doubt persists about a statute’s intended scope

even after resort to the language and structure, legislative history, and

motivating policies of the statute.” United States v. Banks, 514 F.3d 959,

968 (9th Cir. 2008) (internal quotation marks omitted). Although we agree

that the plain text of the statute is susceptible to two plausible readings,

we are satisfied that statutory history resolves this case. The rule of lenity

does not apply. 

UNITED STATES v. KRSTIC 3039
was fraudulently obtained. In view of the statutory history, we

decline to adopt a reading that would effectively decriminalize such conduct.

V

A

[8] We lastly turn to Krstic’s non-textual arguments. First,

he claims that his prosecution is barred by the statute of limitations. Federal law establishes a default five-year statute of

limitations for the prosecution of criminal offenses. See 18

U.S.C § 3282(a) (“Except as otherwise expressly provided by

law, no person shall be prosecuted, tried, or punished for any

offense, not capital, unless the indictment is found or the

information is instituted within five years next after such

offense shall have been committed.”). Krstic correctly points

out that his alleged false claims or statements were made in

1998 and 1999 while the superseding indictment was not filed

until 2007. 

[9] The crime here, however, is a possessory offense, not

a false statement offense. Unlike false statement crimes, possessory offenses have long been described as “continuing

offenses” that are not complete upon receipt of the prohibited

item. Rather, the statute of limitations does not begin to run

until the possessor parts with the item. In Eichelberger v.

United States, 252 F.2d 184 (9th Cir. 1958), for example, von

Eichelberger was charged with “possession of firearms” in

violation of federal law. Id. at 184-85. We “noted that the

essence of the offense as charged in the . . . indictment . . .

is possession. Therefore . . . the offense was a continuing one

which began on the date the guns were received by von

Eichelberger and continued to . . . the date set forth in the

indictment. Present possession of a firearm is prohibited.” Id.

at 185. In recent times, we have reaffirmed Eichelberger. See

United States v. Walker, 27 F.3d 417, 420 (9th Cir. 1994)

(“Offense of illegal possession continues until date set forth

3040 UNITED STATES v. KRSTIC
in indictment for statute of limitations purposes.”); United

States v. Kayfez, 957 F.2d 677, 678 (9th Cir. 1992) (per

curiam) (“The ‘instant offense’ in this case is the possession

of counterfeit notes . . . . Possession is a continuing offense.”).

[10] Here, the statute and the indictment confirm that “the

essence of the offense . . . is possession.” Eichelberger, 252

F.2d at 185. Section 1546(a)’s first paragraph prohibits “possess[ing] . . . [an] alien registration receipt card . . . knowing

it to be . . . procured by means of any false claim or statement.” (emphasis added). The indictment specifically alleged

that Krstic had committed a possessory offense: “Krstic, did

knowingly possess an alien registration receipt card . . . which

the defendant knew to have been procured by means of materially false claims and statements.” The prohibited item here

is the alien registration receipt card that was procured by

means of a false claim or statement. Federal agents seized the

card from Krstic on December 11, 2006, and filed the superseding indictment on October 16, 2007, well within the fiveyear window. 

Trying to avoid this conclusion, Krstic points to the

Supreme Court’s decision in Toussie v. United States, 397

U.S. 112 (1970), which he claims “undermined” this court’s

decision in Eichelberger. In Toussie, the Court held that failing to register for the draft was not an offense that “continued

to be committed each day that [the defendant] did not register.” Id. at 114. Rather, the statute of limitations began running on the draft registration date prescribed by law. See id.

at 117 (“[R]egistration was thought of as a single, instantaneous act to be performed at a given time.”). Krstic emphasizes the following language in the Court’s opinion: 

[T]he doctrine of continuing offenses should be

applied in only limited circumstances . . . . These

considerations do not mean that a particular offense

should never be construed as a continuing one. They

do, however, require that such a result should not be

UNITED STATES v. KRSTIC 3041
reached unless the explicit language of the substantive criminal statute compels such a conclusion, or

the nature of the crime involved is such that Congress must assuredly have intended that it be treated

as a continuing one. 

Id. at 115. According to Krstic, “[n]either prong of this test is

met” here. 

We reject Krstic’s contention. Eichelberger remains good

law after Toussie. Eichelberger involved a possession offense;

Toussie involved a failure to register for the draft. Furthermore, because Congress expressly defined the offense here as

possessory, “the nature of the crime involved is such that

Congress must assuredly have intended that it be treated as a

continuing one.” Id.

B

Finally, Krstic earnestly contends that the constitutional

avoidance canon counsels against adopting the government’s

interpretation of § 1546(a). Krstic bases this argument on several constitutional provisions and theories. First, he claims

that, “[i]n the absence of an explicit statement by Congress

that offenses involving purported misconduct in the obtaining

of immigration documents are to be treated as continuing

offenses, the Fifth and Sixth Amendment rights of individuals

in the United States to the fair and timely trial of criminal

offenses mandate that the limitations period established by

§ 3282(a) be respected.” Second, Krstic contends that not following the § 3282(a) statute of limitations would violate the

separation of powers because it would breach “the Constitution’s limits to the criminal jurisdiction of the federal courts.”

Krstic cites no authority directly on point for either of these

arguments. 

[11] Krstic’s constitutional claims border on the frivolous.

The statute of limitations did not begin to run until govern3042 UNITED STATES v. KRSTIC
ment agents confiscated Krstic’s green card. We have encountered no authority, and Krstic cites none, suggesting that

Congress’s decision to characterize a crime as a possession

offense as opposed to a false statement offense implicates

constitutional considerations. Nor does the Sixth Amendment’s Speedy Trial Clause apply here. See United States v.

Lovasco, 431 U.S. 783, 788-89 (1977) (“[A]s far as the

Speedy Trial Clause of the Sixth Amendment is concerned,

[preindictment] delay is wholly irrelevant, since . . . only a

formal indictment . . . engage[s] the particular protections of

that provision.” (internal quotation marks omitted)). Finally,

Krstic’s separation of powers argument is simply a revival of

his statute of limitations claim, which we have already put to

rest. ) 

VI

Based upon the foregoing, we REVERSE the district

court’s dismissal of the indictment and REMAND for further

proceedings.

UNITED STATES v. KRSTIC 3043