Tuesday, March 10, 2009

U.S. v. Krstic (9th Cir. - March 10, 2009)

Here's a good case for the statutory interpretation crowd. It involves a statute that gets messed up when Congress adds the seemingly innocuous word "such" to it. It's not an obvious problem, but it definitely exists. The statute 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]."

Imagine -- and, as you might expect, this isn't a hypothetical -- that someone's charged with posssessing a real (not forged) visa that he knows was procured by a false statement. Guilty under the statute? It looks like the second portion of the statute covers him, but the words "such visa" seem to require that the visa satisfy the first portion too, right?

Judge O'Scannlain does a very good job, I think, of explaining and interpreting the statute, and he ultimately persuades me that the statute indeed covers the "hypothetical". Largely because when the statute was originally passed, in 1924, it lacked the word "such" and seemed clearly to criminalize both prongs separately, and there's no reason to believe that Congress intended to alter this regime through the various historical changes.

The only thing I'd add to Judge O'Scannlain's analysis is that cases like this are, in my view, tough for the "just read the statute" crowd. (Which, to be clear, I'm not one of.) If the terms of the statute are dispositive, I think clearly "such" incorporates the first prong, and Krstic (the "hypothetical") isn't guilty, since grammar and context would indicate such a result. It's only once you're able to get into legislative history that the contrary view becomes clear.