United States v. Krstic

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 08-30022
Plaintiff-Appellant,
v.  D.C. No.
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
3028 UNITED STATES v. KRSTIC

COUNSEL

David L. Atkinson, Assistant United States Attorney, Port-
land, 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.
 UNITED STATES v. KRSTIC 3029
OPINION

O’SCANNLAIN, Circuit Judge:

We are confronted with a thorny question of statutory inter-
pretation 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 employ-
ment restrictions in Banovici, Krstic and his family fled to
several war-torn locations throughout Serbia and Bosnia-
Herzegovina. 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 bri-
gade “had been involved in the massacre of a large number
of unarmed Muslim prisoners in 1995, in areas in close prox-
imity 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
1
The I-590 form was required by the then Immigration and Naturaliza-
tion Service for admission to the United States as a refugee. It was styled:
“Registration for Classification as a Refugee.”
3030 UNITED STATES v. KRSTIC
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 resi-
dents. 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 mili-
tary 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 indict-
ment, filed on October 16, 2007, alleged in relevant part that

[Krstic] . . . did knowingly possess an alien registra-
tion receipt card . . . which [he] knew to have been
procured by means of materially false claims and
2
The I-485 form, styled “Application to Register as a Permanent Resi-
dent Or Adjust Status,” is required as part of an application to become a
lawful permanent resident of the United States.
3
This 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.
 UNITED STATES v. KRSTIC 3031
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 regis-
tration 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 pos-
session 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].
3032 UNITED STATES v. KRSTIC
§ 1546(a) (emphases added).

[1] At first glance, the statute appears to prohibit two inde-
pendent acts. The first part criminalizes “knowingly forg[ing],
counterfeit[ing], alter[ing], or falsely mak[ing]” an immigra-
tion 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 pro-
cured by means of any false claim or statement.” The govern-
ment 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 con-
tends 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 contem-
plates an immigration document that has been forged, coun-
terfeited, 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 con-
text, 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 pre-
cedent.”); 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.
 UNITED STATES v. KRSTIC 3033
[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 obfusca-
tion.” 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. Campos-
Serrano, 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 pos-
session 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 docu-
3034 UNITED STATES v. KRSTIC
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).4 Id. at 301. The
passage on which Krstic relies merely serves as general back-
ground information about the statute; it does not purport to be
a comprehensive catalog of all conduct prohibited by the stat-
ute. 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 can-
not “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 bar-
ring the procurement of a female to be ‘with any man’ as
requiring one man as the procurer and another man as the
4
Section 1546(a) was later amended to include alien registration receipt
cards.
 UNITED STATES v. KRSTIC 3035
indirect object for whom the female is procured.” The statute
at issue in Roderigas, however, required such an interpreta-
tion 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 prostitu-
tion).”).5

3

The government proposes its own tiebreaker, arguing that
“[i]f Congress intended the phrase ‘any such visa’ in the sec-
ond 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 identi-
cally, 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 posses-
sor who knows of the forging. In other words, the first part of
the paragraph prohibits knowingly forging, counterfeiting,
5
Krstic also argues that the phrase “have been procured” is in the pres-
ent 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.”
3036 UNITED STATES v. KRSTIC
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 per-
mit, 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 docu-
ment knowing that it has been procured by means of a false
claim or statement.
 UNITED STATES v. KRSTIC 3037
[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 docu-
ments. 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.6 See Immigra-
tion 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 stat-
ute’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 docu-
ment. 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 interpre-
tation:

Whoever knowingly forges, counterfeits, alters, or
falsely makes any immigration visa or permitimmi-
grant or nonimmigrant visa, permit, or other docu-
ment 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, coun-
terfeited, altered, or falsely made, or to have been
procured by means of any false claim or statement,
6
Congress amended the statute once between 1924 and 1952. In 1948,
Congress replaced the words “Any person who” with “Whoever knowing-
ly” and removed the numbers. See Act of June 25, 1948, ch. 645, § 1546,
62 Stat. 683, 771.
3038 UNITED STATES v. KRSTIC
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 dis-
cussed 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 autho-
rized 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 registra-
tion 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 other-
wise procured by fraud or unlawfully obtained.8
7
The strike-through text was present in the 1948 version of the statute
but deleted in 1952. The underlined text was added in 1952.
8
The 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.
 UNITED STATES v. KRSTIC 3039
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, coun-
terfeited, 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 govern-
ment correctly points out, reading § 1546(a)’s first paragraph
as applying only to an already forged or counterfeited immi-
gration 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
9
Krstic contends that because § 1546(a)’s statutory text is ambiguous,
the rule of lenity, which “requires ambiguous criminal laws to be inter-
preted in favor of the defendants subjected to them,” United States v. San-
tos, 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.
3040 UNITED STATES v. KRSTIC
was fraudulently obtained. In view of the statutory history, we
decline to adopt a reading that would effectively decriminal-
ize 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 limi-
tations. 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, pos-
sessory 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
 UNITED STATES v. KRSTIC 3041
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 “pos-
sess[ing] . . . [an] alien registration receipt card . . . knowing
it to be . . . procured by means of any false claim or state-
ment.” (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 mate-
rially 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 super-
seding indictment on October 16, 2007, well within the five-
year 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 fail-
ing to register for the draft was not an offense that “continued
to be committed each day that [the defendant] did not regis-
ter.” Id. at 114. Rather, the statute of limitations began run-
ning on the draft registration date prescribed by law. See id.
at 117 (“[R]egistration was thought of as a single, instanta-
neous act to be performed at a given time.”). Krstic empha-
sizes 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
3042 UNITED STATES v. KRSTIC
reached unless the explicit language of the substan-
tive criminal statute compels such a conclusion, or
the nature of the crime involved is such that Con-
gress 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. Further-
more, 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 sev-
eral 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 fol-
lowing the § 3282(a) statute of limitations would violate the
separation of powers because it would breach “the Constitu-
tion’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 govern-
 UNITED STATES v. KRSTIC 3043
ment agents confiscated Krstic’s green card. We have encoun-
tered 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 Amend-
ment’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.