A blog of the Philadelphia Bar Association’s Criminal Justice Section

third  circuitBy Burt Rose

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The United States Court of Appeals for the Third Circuit has affirmed the grant of a judgment of acquittal in UNITED STATES of America, Appellant v. Zavkibeg ASHUROV, #12–2711, 2013 WL 4046392 (Aug. 12, 2013). This was an appeal from the United States District Court for the Eastern District of Pennsylvania, D.C.Crim. # 2–11cr–00533–001, before District Judge Harvey Bartle, III. The Judges were SLOVITER,FUENTES, and ROTH. Judge Fuentes wrote the Opinion without dissent.

A jury convicted Ashurov of presenting a materially false statement in an immigration form under 18 U.S.C. § 1546(a). The District Court subsequently entered a judgment of acquittal, ruling that this statute required, but that the Government had not proven, that the statement was made under oath.

The statute punishes “whoever knowingly makes under oath,or … under penalty of perjury … knowingly subscribes as true, any false statement with respect to a material fact in any … document required by the immigration laws … or knowingly presents any such … document which contains any such false statement or which fails to contain any reasonable basis in law or fact.”

The United States argued that the “knowingly presents” clause of the statute, which Ashurov was charged with violating, did not require that the materially false statement be made under oath. The Panel concluded that in view of the ambiguity as to whether the “knowingly presents” clause requires an affirmation made under oath, the Court would apply the rule of lenity and affirmed the judgment of acquittal.

I think that you might enjoy reading Judge Fuentes’ analysis of this issue:

Congress has written a needlessly convoluted statute—a run-on sentence that is but one of four paragraphs contained in a single subclause of § 1546. The sentence consists of 76 words and seven uses of the conjunction “or,” and has a complicated history of amendments accompanied by nary an explanation—and carries stiff penalties at that (up to 10 years for run-of-the mill violations but as much as 25 years for some). We have labored through the meandering words of this law and carefully considered the well-presented arguments of both sides, and are still left with grievous doubt as to the statute’s meaning. The statute thus falls well short of providing the required fair notice as to what it punishes. Accordingly, we apply the rule of lenity and decline to relax the “knowingly presents” crime of § 1546(a) by removing from it the oath requirement that appears in the “knowingly makes” crime. If Congress desires to go further, it must speak more clearly than it has.

Anthony J. Wzorek argued for the Office of the United States Attorney. Brett G. Sweitzer of the Federal Community Defender Office argued for the Appellee.


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