S. THOMAS ANDERSON, District Judge.
Divna Maslenjak appeals her conviction for knowingly procuring her naturalization contrary to law in violation of 18 U.S.C. § 1425(a). Maslenjak, an ethnic Serb and native of Bosnia, came to the United States in 2000 as a refugee fleeing the civil war in the former Yugoslavia. Maslenjak claimed she and her family feared persecution in Bosnia because her husband had evaded conscription into the Serbian army during the war. In fact, Maslenjak's husband had not only been in the Serbian militia during the war but had served as an officer in a unit implicated in war crimes. Maslenjak was granted refugee status and ultimately obtained her naturalization. Based on her misrepresentations during the immigration process, a jury found Maslenjak guilty of knowingly procuring her naturalization contrary to law in violation of 18 U.S.C. § 1425(a) and of knowingly using an unlawfully issued certificate of naturalization in violation of 18 U.S.C. § 1423.
On appeal, Maslenjak argues that the district court improperly instructed the jury that her false statements need not be
Maslenjak is a native of what is today the nation of Bosnia. Although Maslenjak was born in a predominantly-Serbian village, Muslims made up the majority of the population in the surrounding region and clashed with ethnic Serbs like Maslenjak and her family. Maslenjak briefly moved with her family from her home village in Bosnia to the Serbian city of Belgrade in 1992 and then returned to Bosnia soon thereafter. As the break-up of the former Yugoslavia accelerated in the 1990s and conditions in Bosnia deteriorated, the United States dispatched immigration officials to Belgrade to assist refugees fleeing Bosnia and the ethnic cleansing taking place there during the war. In April 1998, Maslenjak and her family met with Monia Rahmeyer, an officer with the United States Immigration and Naturalization Service in Belgrade, to seek refugee status based on their fear of persecution in their home region of Bosnia. The interview was conducted with a translator.
No writing or recording of the interview exists to show what questions Rahmeyer asked Maslenjak or what responses Maslenjak provided to the questions. The proof at trial showed that Maslenjak acted as the primary applicant on her family's asylum application. Maslenjak stated under oath during the interview that her family feared persecution back in Bosnia owing to the fact that her husband did not serve in the military during the war. Maslenjak explained that when she returned to Bosnia with her children in 1992, her husband remained in Jagodina, Serbia, to avoid conscription into the Bosnian Serb army during the Bosnian civil war. According to Maslenjak, she and her husband had lived apart from 1992 to 1997. Based on these representations, Maslenjak and her family were granted refugee status in 1999 and immigrated to the United States in September 2000 where they settled in Ohio. Maslenjak subsequently obtained lawful permanent resident status in 2004.
On December 5, 2006, special agents of Immigration and Customs Enforcement questioned Maslenjak's husband, Ratko Maslenjak, at the family home as part of an investigation into whether Mr. Maslenjak had failed to disclose his military service in Serbia in his immigration application. Divna Maslenjak was present in the home during the interview. Ratko Maslenjak was subsequently charged with two counts of making a false statement on a government document in violation of 18 U.S.C. § 1546(a). Specifically, Ratko Maslenjak was accused of failing to report his military service in the Bratunac Brigade of the Army of the Republic Srpska (also known as the VRS), a unit that participated in the genocide of 7,000 to 8,000 Bosnian Muslims in 1995. The government alleged that according to military records, Ratko Maslenjak served as an officer in the Bratunac Bridgade at the time of the genocide, though there was no evidence Mr. Maslenjak had personally participated in war crimes. Ratko Maslenjak was arrested on the charges on December 13, 2006.
One week after her husband's arrest, Maslenjak filed an N-400 Application for Naturalization on December 20, 2006. One of the questions on the application asked whether she had ever "knowingly given false or misleading information to
On October 7, 2007, Ratko Maslenjak was found guilty in the United States District Court for the Northern District of Ohio on both counts of making false statements on a government document under 18 U.S.C. § 1546(a). The district court sentenced Mr. Maslenjak to 24 months probation on January 8, 2008. Because his criminal conviction made him subject to removal, Ratko Maslenjak was taken into ICE custody on January 13, 2009. In order to avoid removal, Ratko Maslenjak filed a petition for asylum. Divna Maslenjak filed an I-130 Petition for Alien Relative and testified on her husband's behalf at his April 28, 2009, asylum hearing. During her testimony Maslenjak admitted that her husband had served in the Republic Srpska military, that they had in fact lived together in Bosnia after 1992, and that she had lied to the immigration officer about these facts during the refugee application interview in 1998.
On March 5, 2013, a federal grand jury indicted Maslenjak with one count of knowingly procuring her naturalization contrary to law in violation of 18 U.S.C. § 1425(a). The indictment alleged that Maslenjak "made material false statements" on her Form N-400 Application for Naturalization by answering "no" to the questions about "knowingly giv[ing] false or misleading information to any U.S. government official while applying for any immigration benefit" and "[lying] to any U.S. government official to gain entry or admission into the United States" and then giving the same false answers during her interview for naturalization. The second count of the indictment charged Maslenjak with knowingly misusing her unlawfully issued certificate of naturalization to file a Form I-130 Petition for Alien Relative on February 6, 2009, to obtain lawful permanent resident status for her husband, in violation of 18 U.S.C. § 1423. On April 17, 2014, a jury found Maslenjak guilty of both charges. Upon her conviction, the district court sentenced Maslenjak to two years' probation and granted the government's motion to have Maslenjak's naturalization revoked under 8 U.S.C. § 1451(e). Maslenjak's timely appeal followed.
This court reviews challenges to jury instructions for abuse of discretion. United States v. Richardson, 793 F.3d 612, 629 (6th Cir.2015). A district court enjoys broad discretion "in crafting jury instructions and does not abuse its discretion unless the jury charge fails accurately to reflect the law." United States v. Ross, 502 F.3d 521, 527 (6th Cir.2007). "When jury instructions are claimed to be erroneous, we review the instructions as a whole, in order to determine whether they adequately informed the jury of the relevant considerations and provided a basis in law for aiding the jury in reaching its decision." United States v. Kuehne, 547 F.3d 667, 679 (6th Cir.2008) (internal quotation marks and citation omitted). An improper jury instruction requires reversal "only where the instructions, when viewed as a whole, are found to be confusing, misleading,
The first issue presented is whether 18 U.S.C. § 1425(a) contains an implied materiality requirement where a naturalized citizen like Maslenjak faces mandatory denaturalization following a conviction under § 1425(a). The issue is one of first impression in this Circuit.
"The starting point for any question of statutory interpretation is the language of the statute itself." United States v. Coss, 677 F.3d 278, 283 (6th Cir.2012) (internal quotation marks and citation omitted). Section 1425(a) makes it a crime to "knowingly procure[] or attempt[] to procure, contrary to law, the naturalization of any person, or documentary or other evidence of naturalization or of citizenship." 18 U.S.C. § 1425(a). A plain reading of the statute suggests that materiality is not an element of the offense. "The definition of the elements of a criminal offense is entrusted to the legislature, particularly in the case of federal crimes, which are solely creatures of statute." Dixon v. United States, 548 U.S. 1, 7, 126 S.Ct. 2437, 165 L.Ed.2d 299 (2006) (quoting Liparota v. United States, 471 U.S. 419, 424, 105 S.Ct. 2084, 85 L.Ed.2d 434 (1985)). Accordingly, courts "ordinarily resist reading words or elements into a statute that do not appear on its face." Dean v. United States, 556 U.S. 568, 572, 129 S.Ct. 1849, 173 L.Ed.2d 785 (2009). Obviously, the term "material" is found nowhere in § 1425(a). Without statutory support for an element of materiality, we are hard-pressed to conclude that materiality is an element of the offense under 18 U.S.C. § 1425(a).
As a matter of statutory interpretation, the absence of the term would normally end our inquiry. Maslenjak apparently concedes as much and instead argues on appeal that materiality is implied as an element of 18 U.S.C. § 1425(a). Maslenjak relies on a line of cases where other circuits have held that proof of materiality was required to denaturalize a citizen based on a violation of 18 U.S.C. § 1425(a). The Immigration and Naturalization Act ("INA") sets forth at 8 U.S.C. § 1451 two alternative procedures for denaturalization, one civil and one criminal. The civil procedure under 8 U.S.C. § 1451(a) provides for denaturalization where one procures citizenship by concealing a material fact and expressly requires proof of materiality. The criminal procedure under 8 U.S.C. § 1451(e) makes denaturalization an automatic consequence of a criminal conviction under 18 U.S.C. § 1425. The cases Maslenjak cites for support have assumed that the required element of materiality applicable to civil denaturalization proceedings under § 1451(a) should also apply to a criminal denaturalization under § 1451(e), and by extension, a prosecution under 18 U.S.C. § 1425(a).
Furthermore, the cases on which Maslenjak relies overlook the fact that Congress has created a two-track system for denaturalization. Denaturalization under § 1451(a) is a civil proceeding with its own evidentiary standard and shifting burden of proof; whereas, denaturalization under § 1451(e) is a mandatory ministerial act following a criminal conviction under 18 U.S.C. § 1425(a). There is little justification for reading an implied element of materiality into 18 U.S.C. § 1425 based on the fact that materiality is a required element for civil denaturalization under 8 U.S.C. § 1451(a). We turn now to examine in more depth each of the statutes applicable to Maslenjak's conviction under 18 U.S.C. § 1425(a) and denaturalization under 8 U.S.C. § 1451(e), starting with the INA itself and the denaturalization statute found at 8 U.S.C. § 1451.
The INA creates what are essentially two alternative paths for denaturalization. Section 1451(a) provides for the revocation or setting aside of a citizen's naturalization where "the order and certificate of naturalization" were "illegally procured or [were] procured by concealment of a material fact or by willful misrepresentation." 8 U.S.C. § 1451(a); Kungys v. United States, 485 U.S. 759, 772-73, 108 S.Ct. 1537, 99 L.Ed.2d 839 (1988). The INA at § 1451(a) expressly requires proof that the citizen procured his naturalization by concealing a "material" fact; the term "material" appears on the face of the statute. The Supreme Court in Kungys concluded that materiality is a required element of the government's case in a denaturalization proceeding under § 1451(a). Kungys, 485 U.S. at 767-68, 108 S.Ct. 1537.
Under § 1451(a), the government institutes a denaturalization proceeding by filing a petition and "affidavit showing good cause" in the district where the naturalized citizen resides. 8 U.S.C. § 1451(a). The naturalized citizen then
The burden-shifting of § 1451(a)'s denaturalization procedure underscores the fact that "[a] denaturalization suit is not a criminal proceeding," Schneiderman v. United States, 320 U.S. 118, 160, 63 S.Ct. 1333, 87 L.Ed. 1796 (1943), but a "civil case." Addington v. Texas, 441 U.S. 418, 424, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979). The Supreme Court has described denaturalization under § 1451(a) as "a suit in equity." Fedorenko, 449 U.S. at 516, 101 S.Ct. 737 (1981) (citations omitted). Rather than being a penal sanction, denaturalization "imposes no punishment upon an alien who has previously procured a certificate of citizenship by fraud or other illegal conduct. It simply deprives him of his ill-gotten privileges." Johannessen v. United States, 225 U.S. 227, 242, 32 S.Ct. 613, 56 L.Ed. 1066 (1912). In contrasting a civil denaturalization proceeding under § 1451(a) with a typical criminal proceeding, the Sixth Circuit has remarked "[c]riminal cases offer many due process protections — e.g., jury trial, indictment, beyond-a-reasonable-doubt burden of proof, right to counsel — that civil proceedings, including denaturalization proceedings, do not." United States v. Mandycz, 447 F.3d 951, 962 (6th Cir.2006).
The denaturalization statute at § 1451(e) goes on to establish a second, alternative path to denaturalization. That paragraph states that "[w]hen a person shall be convicted under [18 U.S.C. § 1425] of knowingly procuring naturalization in violation of law, the court in which such conviction is had shall thereupon revoke, set aside, and declare void the final order admitting such person to citizenship, and shall declare the certificate of naturalization of such person to be canceled." 8 U.S.C. § 1451(e). A criminal conviction under 18 U.S.C. § 1425 results in the mandatory denaturalization of the citizen, and the district court's task in this respect becomes purely "ministerial." United States v. Inocencio, 328 F.3d 1207, 1209 (9th Cir.2003); United States v. Maduno, 40 F.3d 1212, 1217-18 (11th Cir.1994); United States v. Djanson, 578 Fed.Appx. 238, 241 (4th Cir.2014). In other words, a district court lacks any discretion in the matter, and no further process is due once the naturalized citizen is convicted of knowingly procuring his naturalization "contrary to law." And as in any criminal prosecution, the government has the burden to establish the elements of the offense beyond a reasonable doubt, and the accused has the right to all of the constitutional due process he would otherwise not receive as part of a civil denaturalization proceeding under § 1451(a), including the right not to testify or put on proof at all. See Carter v. Kentucky, 450 U.S. 288, 295-300, 101 S.Ct. 1112, 67 L.Ed.2d 241 (1981). As already mentioned, it is this scenario that is at issue in Maslenjak's appeal.
As previously noted, 18 U.S.C. § 1425(a) makes it a crime to "knowingly procure[] or attempt[] to procure, contrary to law, the naturalization of any person, or documentary or other evidence of naturalization or of citizenship." 18 U.S.C. § 1425(a). We pause to note that the expansive language of the statute captures much more than making false statements. Paragraph (a) makes it illegal not only to procure or obtain naturalization but also any "documentary or other proof of naturalization or citizenship." Moreover, the statute criminalizes not just procuring these things only for one's self but for "any person." So a naturalized citizen might violate § 1425(a), for example, by improperly obtaining a forged naturalization certificate for a family member. The naturalized citizen's conduct of helping another person fraudulently procure forged citizenship papers violates § 1425(a), thereby making the naturalized citizen subject to mandatory denaturalization under 8 U.S.C. § 1451(e). The point is 18 U.S.C. § 1425(a) criminalizes far more than just the conduct of which Maslenjak was convicted, making a false statement on an application for naturalization.
In order to prove the offense in this case, the government had to establish that (1) Maslenjak procured her naturalization; (2) that she procured it in some manner contrary to law; and (3) that she did so knowingly. It is undisputed in this appeal that the district court correctly instructed the jury on the first and last elements. The real dispute concerns the district court's definition of "contrary to law" in its instructions to the jury and in particular its instruction that a false statement need not be material in order for the statement to be "contrary to law."
The district court explained to the jury that making a false statement under oath in an immigration proceeding was "contrary to law" and violated 18 U.S.C. § 1425(a) if the act of making a false statement violated the immigration laws, regardless of whether the statement was material. The district court specified that "[o]ne of the laws which governs naturalization prohibits an applicant from knowingly making any false statement under oath, relating to naturalization." The district court's instruction in this regard clearly tracked the language of 18 U.S.C. § 1015(a), which makes it a crime to make "any false statement under oath, in any case, proceeding, or matter relating to, or under, or by virtue of any law of the United States relating to naturalization,
We hold that the district court's instruction on the "contrary to law" element was a correct statement of the law. First, 18 U.S.C. § 1425(a)'s "contrary to law" element is broad enough to cover the predicate violation of law at issue, namely, making false statements in an immigration proceeding in violation of 18 U.S.C. § 1015(a). We construe the phrase "contrary to law" to mean "contrary to all laws applicable to naturalization." The Supreme Court has emphasized the importance of strict compliance with the laws and requirements for naturalization.
Fedorenko, 449 U.S. at 506, 101 S.Ct. 737 (quoting United States v. Ginsberg, 243 U.S. 472, 474-475, 37 S.Ct. 422, 61 L.Ed. 853 (1917)). The INA spells out these requirements. It follows then that the failure to comply with the INA's requirements for naturalization would be "contrary to law."
We have also affirmed convictions under § 1425(a) where the predicate or underlying violation of law was another criminal offense, and not just a failure to comply with the INA. United States v. Damrah, 412 F.3d 618, 622-23 (6th Cir.2005) (Gibbons, J.) (affirming conviction under § 1425(a) & (b) for underlying violations of 18 U.S.C. §§ 1001, 1015(a)). Other circuits have likewise affirmed convictions under § 1425(a) for underlying criminal conduct. United States v. Munyenyezi, 781 F.3d 532, 536 (1st Cir.), cert. denied, ___ U.S. ___, 136 S.Ct. 214, 193 L.Ed.2d 164 (2015) (affirming conviction under § 1425(a) for underlying violation of 18 U.S.C. § 1001(a)); United States v. Mensah, 737 F.3d 789, 803 (1st Cir.2013) (affirming conviction under § 1425(a) for underlying violation of 18 U.S.C. § 1015(a)); accord United States v. Alameh, 341 F.3d 167, 171-72 (2d Cir.2003) (affirming conviction under § 1425(b) for underlying violation of 18 U.S.C. § 1546(a)).
The Ninth Circuit in United States v. Puerta seemed to read § 1425(a)'s "contrary to law" element to mean "contrary to the INA," and only the INA. The Puerta court stated "Congress has addressed the impact of immaterial false testimony only in the `good moral character' provision in 8 U.S.C. § 1101(f)(6)." Puerta, 982 F.2d at 1302 (emphasis added). In point of fact, Congress has addressed the impact of immaterial false testimony in Title 18 and made it a criminal offense to make "any false statement under oath, in any case, proceeding, or matter relating to, or under, or by virtue of any law of the United States relating to naturalization, citizenship, or registration of aliens." 18 U.S.C. § 1015(a). The Ninth Circuit apparently understood "contrary to law" to mean only
Second, the district court's instruction was an accurate statement of law because proof of materiality is not required to establish a violation of 18 U.S.C. § 1425(a) or the underlying violation of 18 U.S.C. § 1015(a). Having determined that § 1425(a) on its face does not require proof of materiality, we next look to Maslenjak's underlying conduct by which she procured her naturalization "contrary to law," making false statements in her immigration proceedings. Title 18 U.S.C. § 1015(a) criminalizes "any false statement under oath ..." in an immigration proceeding. 18 U.S.C. § 1015(a). We have construed § 1015(a) in a previous unreported decision and concluded that materiality is not an element of the offense. Tongo, 16 F.3d 1223, 1994 WL 33967, at **3-4. Every other circuit to consider the question has reached the same result and held that materiality is not an element of § 1015(a). United States v. Youssef, 547 F.3d 1090, 1094 (9th Cir.2008); United States v. Abuagla, 336 F.3d 277, 278 (4th Cir.2003); Seventh Cir. Pattern Jury Instr. for 18 U.S.C. § 1015(a). The Ninth Circuit reasoned that § 1015(a) does not contain a materiality requirement based on "Congress's omission of `material' from § 1015(a), combined with its inclusion of `material' in a similar statutory provision (§ 1001(a))...." Youssef, 547 F.3d at 1094.
It follows that where as here the government satisfies the "contrary to law" element of § 1425(a) by proving an underlying violation of law and the underlying violation does not have as one of its elements a material false statement, no additional
Of course, the predicate act or conduct matters in a prosecution under § 1425(a). Where the government establishes the "contrary to law" element of § 1425(a) by proving an underlying criminal act and the criminal act has as one of its elements a material false statement, proof of materiality should arguably be required to obtain a conviction under § 1425(a). Our recent case of United States v. Shordja, 598 Fed. Appx. 351 (6th Cir.2015) illustrates this proposition. Like Maslenjak, the defendant in Shordja was charged with procuring his naturalization in violation of 18 U.S.C. § 1425(a). The defendant provided the same false answers to the same questions on the same application for naturalization. Shordja, 598 Fed.Appx. at 351-52. But the government in Shordja conceded that proof of materiality was a required element of the offense under § 1425(a), a position seemingly inconsistent with its stance in this appeal. Id. at 354 ("Although we have not yet addressed the question of whether to recognize a materiality requirement in § 1425(a), the Government concedes that the statutory provision contains a materiality element.").
However, unlike Maslenjak, the defendant in Shordja was also charged with one count of making false statements to a government official in violation of 18 U.S.C. § 1001(a)(2). See also Latchin, 554 F.3d at 712. In other words, the government's theory of the case was that the defendant procured his naturalization "contrary to law" by violating the federal perjury statute, which has as one of its elements proof of materiality. 18 U.S.C. § 1001(a)(2) ("[W]hoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully makes any materially false, fictitious, or fraudulent statement or representation ... shall be [punished]."); United States v. Gatewood, 173 F.3d 983, 986 (6th Cir.1999) ("The elements required to establish a violation of 18 U.S.C. § 1001 are .... that the false statement was material."). Where as in Shorjda a defendant is charged under 18 U.S.C. § 1425(a) with knowingly procuring naturalization contrary to law and the predicate violation of law is perjury under § 1001(a), it stands to reason that proof of materiality should be required to prove that the defendant procured his naturalization "contrary to law."
We need not fully resolve this last point to decide this case. Maslenjak was not charged under the perjury statute, and the district court did not instruct the jury on the elements of § 1001(a). The theory of the government's case against Maslenjak was that she procured her naturalization "contrary to law," in part by making false statements in an immigration proceeding
We recognize that Maslenjak's position finds support in a number of other circuit decisions holding that materiality is an implied element of 18 U.S.C. § 1425(a). By and large, we find these decisions unpersuasive. The leading case supporting Maslenjak's position is United States v. Puerta where the Ninth Circuit read an implied materiality requirement into § 1425(a). Puerta, 982 F.2d at 1301. The defendant in Puerta made false statements on his application for naturalization where he did not answer a question about whether he had ever used an alias (he had) and answered that he had not been absent from the United States since he entered the country for permanent residence (he was). Id. at 1298-99. The defendant was charged under 18 U.S.C. § 1425(a), and following a bench trial, the district court found him guilty of procuring his naturalization contrary to law and proceeded to denaturalize him pursuant to 8 U.S.C. § 1451(e). Id. at 1299-1300.
The Ninth Circuit reversed, holding that the government had to prove that the defendant's statements were material. The Puerta court based its holding on two factors: (1) proof of materiality was required in a civil denaturalization proceeding under 8 U.S.C. § 1451(a); and (2) the "gravity of the consequences" of mandatory denaturalization justified a showing of materiality under 18 U.S.C. § 1425(a). Id. at 1301 (citation omitted). Notably, the parties in Puerta agreed that the materiality requirement in the civil denaturalization proceeding implied materiality as an element of 18 U.S.C. § 1425(a) as well. Id.
Other circuits have followed the Ninth Circuit's decision in Puerta but without engaging in their own analysis of the statutory language. The First Circuit has assumed like the Ninth Circuit that materiality is an element of 18 U.S.C. § 1425(a) because it is an element of civil denaturalization under 8 U.S.C. § 1451(a). Mensah, 737 F.3d at 808-09; Munyenyezi, 781 F.3d at 536. The Seventh Circuit adopted the materiality element, at least in part, because, just as in Puerta, the parties to the case agreed that it was an element of 18 U.S.C. § 1425(a). United States v. Latchin, 554 F.3d 709, 712, 713 n. 3 (7th Cir. 2009).
The Ninth Circuit's approach also ignores the fact that other violations of federal law pertaining to false statements in immigration proceedings do not require proof of materiality. It is well settled in the Ninth Circuit (and in other circuits following the Ninth's holding in Puerta) that proof of materiality is not a required element of 18 U.S.C. § 1015(a). Youssef, 547 F.3d at 1094; see also Abuagla, 336 F.3d at 278; Seventh Cir. Pattern Jury Instr. for 18 U.S.C. § 1015(a). Nor is proof of materiality required in other sections of the INA addressing false testimony. The INA at 8 U.S.C. § 1427(a)(3) makes "good moral character" a condition precedent to naturalization. 8 U.S.C. § 1427(a)(3). And 8 U.S.C. § 1101(f)(6) precludes a finding of "good moral character" for any naturalization applicant who "has given false testimony for the purpose of obtaining any benefit" under the INA. 8 U.S.C. § 1101(f)(6).
As Puerta and its progeny highlight, the United States has taken a contrary position on the materiality issue in different cases before different courts, including this one, though we have noted why Shordja is distinguishable in this regard. While the government could not account for these inconsistencies at oral argument, "[t]here is, of course, no rule of law to the effect
Still, it is one thing to take contrary positions in different cases "over the years." It is more problematic that the government has taken inconsistent positions on the materiality issue at key points in the case now before us. The government sought an indictment charging Maslenjak with making material false statements and even adduced proof at trial relevant to the materiality element only to argue at the charge conference and now on appeal that proof of materiality is not required.
The only compelling reason left to adopt the Ninth Circuit's approach to materiality in Puerta is the equity of mandatory denaturalization on anything less than proof of a materially false statement. As Maslenjak asserted at oral argument, denaturalization is a "unique" and "severe" sanction amounting to "banishment," and so the same evidentiary standard should apply whether the government seeks denaturalization in a civil proceeding or a criminal proceeding. Whatever appeal this rationale might have, the argument invites us to overlook the plain text of 18 U.S.C. § 1425(a) and disregard the overall statutory scheme Congress has enacted for denaturalization under the INA.
Construing 8 U.S.C. § 1451 and 18 U.S.C. § 1425 together, Congress has created two alternative approaches to denaturalization, one civil and one criminal. The denaturalization procedure established under 8 U.S.C. § 1451(a) is civil and equitable in nature, initiated simply by filing a petition in the district court where the citizen resides, and carries a "clear, unequivocal, convincing" standard of proof. Section 1451(e) creates a second statutory path to denaturalization which is criminal in nature, because § 1451(e) makes denaturalization mandatory where the citizen is found guilty of violating 18 U.S.C. § 1425. Obviously, the alternative procedure requires the government to seek an indictment and establish probable cause, afford the citizen all of the constitutional due process rights owed whenever a person is accused of a criminal act, and meet a higher burden of proof (beyond a reasonable doubt).
Accepting then that Congress has provided two alternative procedures and standards of proof under § 1451(a) and § 1451(e), the explicit requirement of materiality under one approach but not the other is actually consistent with a two-track statutory scheme for denaturalization. In a civil denaturalization suit, the government can bring its case simply by filing an equitable petition, proceed as in a civil case, and satisfy a lesser burden of proof than beyond a reasonable doubt. In light of the slightly lower burden of proof, Congress has required the government to prove that the naturalized citizen has concealed a material fact. By contrast, in a criminal case resulting in denaturalization, the government must prove the charge under 18 U.S.C. § 1425 beyond a reasonable doubt while meeting the demands of constitutional due process. Congress has not required proof of materiality in that scenario arguably because of the higher burden of proof, the additional safeguards for the naturalized citizen's constitutional rights, and the broad sweep of § 1425 itself.
So in a criminal prosecution under § 1425, the Constitution itself cures any concerns about the "gravity of the consequences" of mandatory denaturalization without requiring proof of materiality. Puerta, at 1301. And if it were otherwise and materiality was a required element of both civil and criminal denaturalization proceedings, the government would have little incentive to ever pursue the denaturalization of a naturalized citizen for making false statements through a criminal indictment under 18 U.S.C. § 1425. The government could achieve the same result, denaturalization, by proving the same materiality element but in a civil proceeding under a lesser standard of proof and with less constitutional due process. Thus, reading an implied element of materiality into 18 U.S.C. § 1425(a) would yield yet another unintended, anomalous result. Despite the equities supporting Maslenjak's position, "[w]e are not at liberty to rewrite the statute to reflect a meaning we deem more desirable" but "[i]nstead, we must give effect to the text Congress enacted." Ali v. Fed. Bureau of Prisons, 552 U.S. 214, 228, 128 S.Ct. 831, 169 L.Ed.2d
Having established that materiality is not required to prove a violation of 18 U.S.C. § 1425(a) or 18 U.S.C. § 1015(a), we hold that the district court's instruction was a correct statement of the law. With this holding, we need not reach the issue of whether the government proved Maslenjak's false statements to be material.
In her second claim on appeal, Maslenjak argues that the district court erroneously instructed the jury that it could also convict her under 18 U.S.C. § 1425(a) if it found that Maslenjak did not possess good moral character. As already mentioned, 8 U.S.C. § 1427(a)(3) establishes "good moral character" as a requirement for naturalization. 8 U.S.C. § 1427(a)(3). Although the INA does not define what "good moral character" is, the INA does define what it is not. Under 8 U.S.C. § 1101(f)(6), no one can be found to be a person of "good moral character" if the person "has given false testimony for the purpose of obtaining any benefit" under the INA. 8 U.S.C. § 1101(f)(6). In its instructions to the jury defining the "contrary to law" element of the offense under 18 U.S.C. § 1425(a), the district court stated that Maslenjak did not satisfy the "good moral character" requirement of 8 U.S.C. § 1427(a) if the government could show that she had given "false testimony for the purpose of obtaining any immigration benefit." ECF 62, Jury Instr., Page ID 1121.
On appeal, Maslenjak does not argue that false testimony to obtain an immigration benefit cannot satisfy § 1425(a)'s "contrary to law" element. Several circuits have affirmed denaturalization based on a naturalized citizen's false testimony and violation of the good moral character requirements of 8 U.S.C. § 1101(f)(6). Munyenyezi, 781 F.3d at 537 (affirming conviction under § 1425(a) and subsequent denaturalization under 8 U.S.C. § 1451(e) based on failure to meet "good moral character"); United States v. Rogers, 104 F.3d 355, 1996 WL 685759, at *1 (2d Cir. Nov. 29, 1996) (same); see also United States v. Suarez, 664 F.3d 655, 658 (7th Cir.2011) (affirming civil denaturalization under 8 U.S.C. § 1451(a) for underlying violation of 8 U.S.C. § 1101(f)(3) & (8)); United States v. Dang, 488 F.3d 1135, 1139-40 (9th Cir.2007) (affirming civil denaturalization under 8 U.S.C. § 1451(a) for underlying violation of 8 U.S.C. § 1101(f)(6)); United States v. Jean-Baptiste, 395 F.3d 1190, 1193-94 (11th Cir.2005) (affirming civil denaturalization under 8 U.S.C. § 1451(a) for underlying violation of 8 U.S.C. § 1101(f)(3) & (8)); United States v. Sokolov, 814 F.2d 864, 873-74 (2d Cir. 1987) (affirming civil denaturalization under 8 U.S.C. § 1451(a) for underlying violation of 8 U.S.C. § 1101(f)(6)). Instead Maslenjak argues that convicting her for lack of good moral character is unconstitutional. We find both of her constitutional arguments to be without merit.
First, Maslenjak contends that her conviction amounts to an unconstitutional criminal punishment based on her status. The Supreme Court has held that a state law criminalizing status and not conduct violates the Eighth Amendment's prohibition on cruel and unusual punishment. Robinson v. California, 370 U.S. 660, 667, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962) (striking down a criminal law against being drug addict); but see Powell v. State of Tex., 392 U.S. 514, 533, 88 S.Ct. 2145, 20 L.Ed.2d 1254 (1968) (upholding a criminal law against public drunkenness). In other words, the law can only punish "doing" (the actus reus) and not merely
It is true that the government's theory of the case was based on Maslenjak's ineligibility for naturalization. The United States presented proof at trial and argued to the jury that Maslenjak was not eligible for naturalization because of her false testimony about the answers on her N-400 Application for Naturalization. Under 8 U.S.C. § 1101(f)(6), Maslenjak's false testimony for the purpose of obtaining a benefit disqualified her as a candidate for naturalization. And it is well-established that "[c]itizenship is illegally procured any time the applicant has failed to comply with any of the congressionally imposed prerequisites to the acquisition of citizenship." United States v. Sprogis, 763 F.2d 115, 117 n. 2 (2d Cir.1985) (quoting Fedorenko, 449 U.S. at 506, 101 S.Ct. 737). Maslenjak was not found guilty of a particular status, i.e. a lack of good moral character, but guilty of culpable conduct, i.e. procuring her naturalization with the knowledge that she was ineligible because she had given false testimony.
Maslenjak again relies on the Ninth Circuit's decision in Puerta for support. The Ninth Circuit held there that "simply being a person who cannot establish [good moral character] in court is not a crime." Puerta, 982 F.2d at 1302. The Ninth Circuit's reasoning on this point is not persuasive. In a prosecution under 18 U.S.C. § 1425(a), the defendant does not have the burden to establish anything at all, including her good moral character. It is the government's burden to prove beyond a reasonable doubt that the defendant knowingly procured her naturalization in some way contrary to law, all in violation of a criminal statute, 18 U.S.C. § 1425(a). Although the INA at 8 U.S.C. § 1101(f)(6) defines what good moral character is not, the INA does not make it crime to lack good moral character. The Ninth Circuit also concluded that Congress had only addressed false testimony in an immigration proceeding at 8 U.S.C. § 1101(f)(6). But, as we have already noted, the Ninth Circuit's observation is not an accurate statement of law. Congress has actually made it a crime to make "any false statement under oath" in a matter related to naturalization pursuant to 18 U.S.C. § 1015(a). As such, there is no support for Maslenjak's claim that 8 U.S.C. § 1101(f)(6) somehow creates a status-based crime for lacking good moral character.
Second, Maslenjak claims that the INA's good moral character requirement is unconstitutionally vague. "As generally stated, the void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement." United States v. Coss, 677 F.3d 278, 289 (6th Cir.2012) (quoting Gonzales v. Carhart, 550 U.S. 124, 148-49, 127 S.Ct. 1610, 167 L.Ed.2d 480 (2007) (other quotations omitted)). "What renders a statute vague is not the possibility that it will sometimes be difficult to determine whether the incriminating fact it establishes has been proved; but rather the indeterminacy of precisely what that fact is." United States
We hold that 8 U.S.C. § 1101(f)(6) is not unconstitutionally vague as applied to Maslenjak.
Maslenjak next challenges the district court's instructions to the jury about what the government had to prove to show that Maslenjak had given false testimony for the purpose of procuring an immigration benefit and how her false testimony meant she did not meet the INA's good moral character requirement. Specifically, Maslenjak argues that the district court failed to explain that "testimony" under § 1101(f)(6) had to be an oral statement or that Maslenjak had to give false testimony with the specific intent to obtain an immigration
We hold that the district court did not abuse its discretion because the instructions, taken as a whole, accurately reflected the law. Ross, 502 F.3d at 527. With respect to the instructions about the necessary intent, the jury charge clearly stated that "[g]iving false testimony for the purpose of obtaining any immigration benefit precludes someone from being regarded as having good moral character," which in turn means "the applicant is not entitled to naturalization." ECF 62, Jury Instr., Page ID 1121. This instruction is a clear and accurate statement of law. Therefore, no abuse of discretion occurred.
As for the instruction about "false testimony," the district court did not define "testimony" to limit the term to oral statements and did not instruct the jury which of Maslenjak's statements constituted "testimony." More fundamentally, the district court did not recognize that the issue of whether any of Maslenjak's statements even met the legal definition of "testimony" under 8 U.S.C. § 1101(f)(6) was a question of law. The instruction as given did not address any of these aspects of the "false testimony" element, as the Supreme Court described it in Kungys. Nevertheless, when viewed as a whole, it cannot be said that the jury instructions were "confusing, misleading, or prejudicial." Richardson, 793 F.3d at 629.
And even if the district court's instruction about "testimony" was erroneous, the error was harmless. The harmless-error standard applies "to cases involving improper instructions on a single element of the offense." Neder v. United States, 527 U.S. 1, 9, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999); Richardson, 793 F.3d 612, 631 ("[A] jury instruction that misdescribes or omits an element of an offense is subject to harmless error review.") (citation omitted). Any error regarding the jury instruction on the single element of "false testimony" was harmless in this case. The record is replete with oral statements made by Maslenjak under oath during her interviews with immigration officials, which meet the legal definition of "testimony." Perhaps more importantly, the evidence the jury heard does not include any other proof "that could rationally lead to a contrary finding with respect to the omitted element." Richardson, 793 F.3d at 632 (quoting Neder, 527 U.S. at 19, 119 S.Ct. 1827). Therefore, any error in the jury instructions was harmless.
For the reasons stated here, we
JULIA SMITH GIBBONS, concurring.
I concur with some reluctance in the lead opinion's carefully-reasoned analysis. Initially, I was not inclined to differ from our sister circuits' interpretation of 18 U.S.C. § 1425(a), but this analysis has persuaded me that the view most faithful to the statute is that materiality is not an element of the § 1425(a) offense.
I am uncertain what goal Congress intended to further by omitting materiality from the elements of § 1425(a). I have located no other federal criminal statute that punishes a defendant for an immaterial false statement. Nor have I located any analogous context in which the elements of a crime are less onerous than the elements of the related civil penalty proceeding.
Finally, I echo a point made in the lead opinion but put it more bluntly. The government's inconsistency in this case and on this issue is puzzling and indeed inappropriate. This is particularly so because the government, in response to questioning at oral argument, was unable to articulate any interest of the United States in prosecuting statements that are immaterial.
For all these reasons, our result here is troublesome. Yet we are not free to select our own notion of the best result in a case but instead are guided by what the law requires. That principle trumps any reluctance about joining the lead opinion.
We need not reach this issue because the district court did not instruct on this theory, and Maslenjak has otherwise failed to demonstrate how this paragraph was "applied" to her. Maslenjak does claim that "[n]othing in the instructions defined `good moral character' or even limited the methods by which the government could prove that Ms. Maslenjak lacked good moral character." Opening Br. 43. But Maslenjak's claim is belied by what the district court actually stated in its charge to the jury. The district court explained only one means of establishing a lack of good moral character, and that was giving "false testimony for the purpose of obtaining any immigration benefit."