                                       PRECEDENTIAL

   IN THE UNITED STATES COURT OF APPEALS
            FOR THE THIRD CIRCUIT
                 _____________

                     No. 12-2711
                    _____________

           UNITED STATES OF AMERICA,

                                               Appellant

                           v.

                ZAVKIBEG ASHUROV

                    _____________

     On Appeal from the United States District Court
        for the Eastern District of Pennsylvania
          (D.C. Crim. No. 2-11cr-00533-001)
      District Judge: Honorable Harvey Bartle, III
                    _____________

                 Argued: May 16, 2013
                    _____________

Before: SLOVITER, FUENTES, and ROTH, Circuit Judges

            (Opinion Filed: August 12, 2013)
                    _____________
Robert A. Zauzmer
Anthony J. Wzorek [ARGUED]
Office of the United States Attorney
615 Chestnut Street, Suite 1250
Philadelphia, Pennsylvania 19106

Attorney for Appellant United States of America

Leigh M. Skipper
Brett G. Sweitzer [ARGUED]
Federal Community Defender Office
601 Walnut Street, Suite 540 West
Philadelphia, Pennsylvania 19106

Attorneys for Appellee Zavkibeg Ashurov
                       _____________

                OPINION OF THE COURT
                    _____________

FUENTES, Circuit Judge:

       After a jury convicted Zavkibeg Ashurov of presenting
a materially false statement in an immigration form, the
District Court entered a judgment of acquittal, concluding that
the statute of conviction required, but that the Government
had not proved, that the statement was made under oath. The
relevant statute punishes

      [w]hoever 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




                              2
      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.

18 U.S.C. § 1546(a) (emphasis added). The United States
asks that we reinstate Ashurov’s conviction, arguing that the
“knowingly presents” clause of the statute, which Ashurov
was charged with violating, does not require that the
materially false statement be made under oath. After
carefully considering the opposing arguments regarding the
proper construction of this complex law, we conclude that it
is grievously ambiguous as to whether the “knowingly
presents” clause requires an affirmation made under oath.
Accordingly, we apply the rule of lenity and affirm the
judgment of acquittal.

  I. FACTUAL AND PROCEDURAL BACKGROUND

       Ashurov, a citizen of Tajikistan, entered the United
States under a visitor’s visa in 2007 and subsequently sought
to obtain an F-1 student visa that would permit him to enroll
in an English language program and temporarily remain in the
United States.

       The application to adjust Ashurov’s status and obtain
the F-1 visa requires the submission of an Immigration and
Naturalization Service Form I-20, which has been described
as a “school’s petition to the U.S. Government . . . to sponsor
a student for enrollment.” App. 96. The form requires that a




                              3
school “designated official”1 provide information regarding
the candidate and the educational program he or she intends
to complete, and certify under penalty of perjury that the
information provided therein is true and that the student will
be required to pursue a “full course of study” at the school.
In the context of a language program, “full course of study”
means at least eighteen hours of classroom instruction per
week. 8 C.F.R. § 214.2(f)(6)(i)(D). Form I-20 also requires a
“student certification” whereby students agree to comply with
the terms and conditions of their admission as students and
certify that they seek admission “for the purpose of pursuing
a full course of study.” That certification is not made under
penalty of perjury.

        Ashurov first sought adjustment of his status in April
2008 pursuant to U.S. Citizenship and Immigration Services
(“USCIS”) Form I-539, which, generally, is used to apply to
extend or change an individual’s non-immigrant status.
Included with that form was a Form I-20 wherein Ashurov
stated that he planned to study English as a Second Language
at the CMG School in Trevose, Pennsylvania. The form was
certified under penalty of perjury by the CMG School’s
designated official, and was signed by Ashurov without an
oath, as the form provides. The application was granted later
that year and Ashurov obtained a student visa. In April 2009
and again in April 2010, Ashurov presented identical Forms

1
       As part of the process to obtain regulatory approval to
enroll foreign nationals possessing student visas, schools
must name “designated school officials” who, among other
things, certify compliance with federal regulations regarding
enrollment of foreign nationals, and sign the Form I-20. 8
C.F.R. § 214.3(a)(1)(ii), (l)(1).




                              4
I-20 to the CMG School officials (all signed by Ashurov, but
not sworn under oath), who in turn completed them, executed
them under penalty of perjury, and submitted them to USCIS.
In 2010, federal authorities began an investigation of the
CMG School, seizing business records that revealed that the
school was not providing students the required eighteen hours
of weekly in-class instruction. The school was eventually
closed and its designated school official was indicted.
Records also revealed that Ashurov’s attendance at the CMG
School began to decline in 2009 and eventually became
insufficient to meet the weekly hour requirement.

       Ashurov was originally charged with violating 18
U.S.C. § 1546(a) by “knowingly making under oath” a
materially false statement in the Forms I-20, but, given that
he did not therein certify anything under oath, a superseding
indictment was returned charging him only with “knowingly
presenting a false statement.” 18 U.S.C. § 1546(a). A jury
convicted him of one count, based on the April 2010 form,
but the District Court granted him a judgment of acquittal,
concluding that the oath requirement applied to both the
“knowingly makes” and “knowingly presents” clauses and
that, alternatively, it would apply the rule of lenity. The
Government now appeals.

                      II. ANALYSIS

      At issue is the fourth paragraph of 18 U.S.C.
§ 1546(a), which punishes:

      Whoever knowingly makes under oath, or as
      permitted under penalty of perjury under section
      1746 of title 28, United States Code, knowingly




                             5
      subscribes as true, any false statement with
      respect to a material fact in any application,
      affidavit, or other document required by the
      immigration laws or regulations prescribed
      thereunder, or knowingly presents any such
      application, affidavit, or other document which
      contains any such false statement or which fails
      to contain any reasonable basis in law or fact.

(emphasis added). Specifically, Ashurov was indicted for
violating the “knowingly presents” portion of the statute. The
question in this case is what exactly that clause proscribes.2

A.    Textual Canons of Construction

       We begin, as always, with the text of the law. In
framing the discussion of what the “knowingly presents”
clause prohibits, the parties agree that the provision as a
whole lists two crimes: one, which is referred to as the
“making” clause, punishes “knowingly mak[ing]” under oath
a materially false statement in an immigration-related
document; the other, which Ashurov was charged with
violating and which is referred to as the “presenting” clause,
punishes “knowingly present[ing]” an immigration-related
document with a materially false statement. 18 U.S.C.
§ 1546(a). The sole point of contention is whether the
“knowingly presents” crime, by virtue of the use of the word
“such,” also requires that the statement that Ashurov
2
       The District Court had jurisdiction pursuant to 18
U.S.C. § 3231, and we have jurisdiction pursuant to 18 U.S.C.
§ 3731. We review de novo an interpretation of a statute of
conviction. United States v. Randolph, 364 F.3d 118, 121 (3d
Cir. 2004).




                              6
presented be made under oath by incorporating that element
from the “making” clause. The Government contends that it
does not, thereby dismissing the need to prove that Ashurov’s
Form I-20 statements were made under oath.

       We begin with two textual modes of construction: first,
the plain meaning of the word “such” and the rule of the last
antecedent; and, second, the rule against surplusage. As we
shall see, these two textual approaches pull us in polar-
opposite directions.

        1. Ashurov contends that the words “any such false
statement” in the “presenting” clause refer to a false statement
with respect to a material fact that is made under oath. The
only way this interpretation can be correct, however, is if we
read “such” to refer both to the adjective clause (“with respect
to a material fact”) as well as to the verb and adverb
(“knowingly makes under oath”) of the “making” clause.
But, grammatically, the words “under oath” in the “making”
clause do not describe the false statement. Instead, they
characterize and qualify the action itself that the statute
punishes, “knowingly makes.”             As the District Court
recognized, “such” means “of the character, quality, or extent
previously indicated or implied.” United States v. Ashurov,
Crim. No. 11-533, 2012 WL 1719778, *2 (E.D.Pa. May 16,
2012) (quoting Webster’s Ninth New Collegiate Dictionary);
see also Black’s Law Dictionary (9th ed. 2009) (defining
“such” as “[t]hat or those; having just been mentioned”). In
other words, the use of “such” is meant to invoke a
characteristic, a quality, or an extent, and Ashurov’s
construction requires us to transform the verbs and adverbs in
the first clause into adjectives in the second.




                               7
       By contrast, reading the second “such” to reach only
“with respect to a material fact” and not “makes under oath”
comports with a commonly recognized rule in American
jurisprudence that “[t]he word ‘such’ . . . naturally, by
grammatical usage, refers to the last precedent.” Bahre v.
Hogbloom, 295 A.2d 547, 552 (Conn. 1972); State ex rel.
King v. Bd. of Trs. of Firemen’s Pension Fund of Kansas
City, 184 S.W. 929, 932 (Mo. Ct. App. 1916) (identifying
“such” as a “term of comparison” meaning “of the same kind
as that which has been enumerated”). Our Court has also
recognized the basic canon that “referential and qualifying
words and phrases, where no contrary intention appears, refer
solely to the last antecedent.” Tippins v. USX Corp., 37 F.3d
87, 93 (3d Cir. 1994) (citing Norman J. Singer, Sutherland
Statutory Construction § 47.33 (4th ed. 1985)). Here, the
oath requirement is not the last thing mentioned in connection
with “false statements.” The last mentioned qualifier is that
they must be made “with respect to a material fact.” 18
U.S.C. § 1546(a).

        On the other hand, we would be remiss if we did not
recall that “this rule of the last antecedent is not an absolute
and can assuredly be overcome by other indicia of meaning.”
J.C. Penney Life Ins. v. Pilosi, 393 F.3d 356, 365 (3d Cir.
2004) (internal quotation marks and alterations omitted); see
also Tippins, 73 F.3d at 93 (explaining that the last antecedent
rule applies only “where no contrary intention appears”).
Accordingly, although the last antecedent canon favors the
Government’s reading, we must at the very least satisfy
ourselves that no “other indicia of meaning” suggests a
contrary outcome. See Pilosi, 393 F.3d at 365. Cf. United
States v. Krstic, 558 F.3d 1010, 1013 (9th Cir. 2010)
(specifically refusing to apply the rule of last antecedent to




                               8
the use of “such” in the first paragraph of § 1546(a) because
“there are several candidates for the ‘last precedent’”).

        2. As it turns out, another important canon of
construction does suggest a contrary outcome: the rule against
surplusage. Ashurov contends that reading the “presenting”
clause as not to include an oath requirement renders the oath
requirement in the “making” clause superfluous because if a
defendant makes a materially false statement that is not sworn
under oath and then presents it, he will be punished even
absent the oath.      Under such circumstances, the oath
requirement of the “making” clause would not have any effect
or use. We agree. This very case illustrates how the
Government may avoid the oath requirement. Ashurov was
first indicted for “making under oath a false statement” in an
immigration document but was subsequently re-indicted only
for “presenting a false statement” without the oath
requirement when it became apparent that his portion of Form
I-20 was not sworn to under oath.

        Thus, the oath requirement will be superfluous in all
cases with a realistic chance of prosecution. As the
Government admits, the “maker” of a statement in an
immigration document is “usually” also the person who
presents it to the authorities, Gov’t Br. at 17, or at the very
least is also the person who, like Ashurov, “presents” it to a
third party who then presents it to authorities. Accordingly,
the Government’s response that the oath requirement of the
“making” clause retains significance “for a maker who does
not present the statement,” Gov’t Reply Br. at 5, is not well
taken. It is hard to imagine that the “making” clause was
aimed at individuals who swear to a statement under oath in a




                              9
document he or she leaves lying around that then somehow
reaches the authorities.

        Ashurov’s reading, by contrast, brings symmetry to the
statute. It punishes both those who make false statements
under oath and those, such as professional preparers, who
submit them, while not punishing the maker of an unsworn
statement any more than it would punish its presenter. To
treat the maker and the presenter the same when the statement
is made under oath, but differently (and the presenter more
harshly) when the maker does not swear an oath seems to us
an anomaly, particularly given that, as the Government
candidly admits, “[t]he law does not generally punish people
for lying unless they expressly acknowledge a legal duty not
to do so.” Gov’t Br. at 17.

       Thus, the “fundamental canon” that we must, if
possible, give effect to every clause and word of a statute, see
United States v. Kouevi, 698 F.3d 126, 134 (3d Cir. 2012)
(citing Duncan v. Walker, 533 U.S. 167, 174 (2001)), points
in the opposite direction than the “last antecedent” canon,
rendering the statute’s text ambiguous.

B.     Other Canons of Construction

       Having found the plain text of paragraph four of
§ 1546(a) ambiguous, we turn to § 1546(a)’s structure,
history, and purpose in aid of our search for the statute’s
meaning.

       1.     The Structure of § 1546(a)




                              10
        The Government makes two arguments based on the
statute’s structure. First, it contends that reading the
“presenting clause” to not incorporate the oath requirement is
“logical” because the other three paragraphs of § 1546(a)
evince a broad desire by Congress to punish all immigration-
related offenses, and none requires an oath. Gov’t Br. at 15.
As the Government notes, the other paragraphs of § 1546(a)
proscribe forging immigration documents (paragraph 1),
possessing materials used to forge immigration documents
(paragraph 2), and impersonating another when applying for
immigration benefits (paragraph 3). But we reject this
strained argument because it is hard to see how one could
even impose an oath requirement on the crimes listed in those
three paragraphs, given that most do not even involve
statements. Moreover, the “making” clause of paragraph four
does contain an oath requirement, despite its absence from the
other three paragraphs. Thus, the lack of an oath requirement
in the other paragraphs is irrelevant.

      Second, the Government points to paragraph one of
§ 1546(a), which punishes, in relevant part,

       [w]hoever knowingly forges, counterfeits, alters
       or falsely makes any [immigration document]
       . . . or receives any such [document] . . .
       knowing it to be forged, counterfeited, altered,
       or falsely made.

18 U.S.C. § 1546(a) (paragraph one). The Government notes
that this paragraph, like paragraph four, prohibits two acts
separated by “or,” and “repeats the acts listed in the first
clause . . . in the second clause . . . when it requires that the
action with the immigration document be done ‘knowing it to




                               11
be forged, counterfeited, altered or falsely made.’” Gov’t Br.
at 19. Thus, the Government argues, because Congress
reiterated the description in the second clause of paragraph
one when it wanted it incorporated there, the description
“makes under oath” in the “making” clause of paragraph four
cannot be incorporated into the “presenting” clause because it
was not reiterated there.

        This argument sweeps far too broadly.             The
“presenting” clause of paragraph four already incorporates a
non-reiterated description, “with respect to a material fact,”
by the use of the word “such,” as the Government concedes.
If reiteration were always required, this would not be the
case. A statute should not be construed “upon the speculation
that if the legislature had thought of it, very likely broader
words would have been used.” McBoyle v. United States, 283
U.S. 25, 27 (1931) (Holmes, J.).

       2.     The Legislative Amendments to the Fourth
              Paragraph of § 1546(a)

       Unaided by the statute’s structure, the Government
makes an appeal to its legislative history. More precisely, the
Government resorts to past versions of the statute, as “there is
no pertinent legislative commentary on any of the
amendments” to § 1546(a). Gov’t Br. at 20. But none cures
the textual ambiguity.

       The strongest support from the statute’s amendment
history that the Government brings to our attention is the fact
that in 1996 Congress added the “fails to contain any
reasonable basis in law or fact” language to the “presenting”
clause. See Pub. L. 104-208, Div. C, Title II, § 214, 110 Stat.




                              12
3009-569 (1996). There is some force to the Government’s
argument that it would be illogical to make it a crime to
knowingly present an immigration document that “fails to
contain any reasonable basis in law or fact,” id., regardless of
whether the document was completed under oath, while only
criminalizing presenting an immigration document containing
a sworn false statement. On the other hand, as Ashurov
notes, it is conceivable that “some representations in
immigration documents may be so blatantly false . . . that the
normal oath requirement is excused.” Ashurov Br. at 31.
More generally, it is hard to surmise the intent of the 1948
Congress based on the pronouncement made by Congress
almost fifty years later. While the 1996 amendment may
support the Government, it does not cast enough light on the
meaning of the statute to resolve the ambiguity created by the
juxtaposition of the canon of the last antecedent modifier and
the rule against surplusage.3

3
        The remainder of the Government’s arguments
regarding the legislative amendments to § 1546(a) rest on
similar speculation regarding what subsequent Congresses
thought of the 1948 statute and are therefore unpersuasive.
We refuse to read any meaning into the fact that in 1952 the
statute was amended to include for the first time the “with
respect to a material fact” and the “any such false statement”
language. See Gov’t Br. at 20-21. That those provisions
were added simultaneously does not mean that “any such
false statement” refers only to “with respect to a material
fact” as the Government would have us conclude. As the
Government concedes, the 1952 amendment also included for
the first time the words “any such document,” unaccompanied
by a parallel addition to the descriptors of “document,”
making it clear that “any such document” was meant to refer




                              13
       3.     The Statute’s Purpose

        The Government’s next argument is based on the
statute’s apparent purpose (although it is not clear from where
this purpose is derived), arguing that “those who affirmatively
present documents to the immigration authorities . . . knowing
that those documents contain materially false statements are
far more likely to have fraudulent intent” than those who
simply make false statements not under oath. Gov’t Br. at 17-
18. But this conclusion is not as intuitive to us. One might
just as easily argue that “makers” of false statements are more
culpable than “presenters” who simply transmit documents.
The most that can be said for this policy-based argument is
that it can be fairly interpreted to support both readings of the
law.

       4.     The Second Circuit’s Decision in United
              States v. Khalje

       Finally, the Government urges us to adopt the
reasoning of the one precedential case that has addressed the
question presented here, where the Second Circuit accepted
the Government’s reading of § 1546(a), reasoning that it:




to language already in the statute at the time of the 1952
amendment. Nor does the fact that the legislative history of
the 1996 amendment fails to mention that the presenting
clause contains an oath requirement support the
Government’s reading. We will not divine clues from
legislative silence regarding an already-existing statute.




                               14
       carries out the apparent Congressional purpose
       of penalizing both those who swear to
       materially false statements in visa applications
       and those who present materially false
       statements in such applications, whether or not
       the latter swear to such statements.

United States v. Khalje, 658 F.2d 90, 92 (2d Cir. 1981) (per
curiam). But, as the District Court surmised, this analysis
“makes no effort to explain, based on the statutory language,
why it finds one antecedent is applicable to ‘any such false
statement’ but excludes the other,” Ashurov, 2012 WL
1719778, *3, and does not otherwise attempt to tackle any of
the difficult interpretative hurdles we have in painstaking
detail addressed here. Thus, we decline to follow the Second
Circuit’s holding in Kahlje.

C.     Rule of Lenity

       We conclude that having considered textual,
contextual, and atextual canons of statutory construction,
there “remains a grievous ambiguity” as to the meaning of the
fourth paragraph of § 1546(a). See Barber v. Thomas, 130 S.
Ct. 2499, 2508 (2010). The text of the statute itself points in
two divergent directions and neither the statute’s structure nor
its scarce legislative history convincingly resolve the
dichotomy. It is thus proper to invoke the rule of lenity in the
defendant’s favor. See id.

       We recognize and reiterate that the “rule of lenity
requires more than a difficult interpretative question.” United
States v. Flemming, 617 F.3d 252, 270 (3d Cir. 2010). On the
other hand, the idea embodied by the rule is that “the citizen




                              15
is entitled to fair notice of what sort of conduct may give rise
to punishment.” McNally v. United States, 483 U.S. 350, 375
(1987) (Stevens, J., dissenting). In this case, 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.” Id. at 360 (Majority Op.). In
the alternative, the Government is free to amend Form I-20 to
require an oath from the applicants who complete it.

                   III.   CONCLUSION

      For the foregoing reasons, the District Court’s
judgment is affirmed.




                              16
