Lead Opinion
ANDERSON, D.J., delivéred the opinion of the court in which GIBBONS and McKEAGUE, JJ., joined. GIBBONS, J. (pg. 697), delivered a separate concurring opinion.
OPINION
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, camp 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
I.
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 Mas-lenjak 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. Mas-lenjak 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. Maslen-jak had failed to disclose his. military service in Serbia in his immigration application. Divna Maslenjak was present in the home during the interview. Ratko Mas-lenjak 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 Mas-lenjak 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 Brigade 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 Dis
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 1-130 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). Mas-lenjak’s timely appeal followed.
II.
This court reviews challenges to jury instructions for abuse of discretion. United States v. Richardson,
A.
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,
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). Maslen-jak relies on á line of cases where other circuits Jiave 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 pro,cures 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 Mas-lenjak 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.
B.
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,
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,
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,
C.
As previously noted, 18 U.S.C. § 1425(a) makes it a crime to “knowingly procureí ] 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, thé 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 -tm naturalization.” The Supreme Court has. emphasized the.importance of strict compliance with the laws and requirements for naturalization. ,
“An.alien who seeks political-rights,as a member- of 'this Nation can rightfully obtain them only upon terms and, conditions specified by Congress. No alien has<‘the slightest right to naturalization unless all statutory requirements are complied with; and every certificate..of citizenship must be treated as granted upon condition that the.government may challenge it ... and demand its cancellation unless issued in accordance with such requirements.” '
Fedorenko,
. 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,
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,
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 thé offense. Tongo,
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 addi
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,
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,
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 UjS.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,
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”,pf mandatory, denatu-ralization 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 denatural-ization under 8 U.S.C. § Í451(a). Mensah,
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,
tions 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 góvernment could hot account for- these inconsistencies at oral arguinent, “[tjhere 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 Mas-lenjak 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 mánda-tory 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 denatu-ralization, 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 denat-uralization 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 130Í. 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 denatu-ralization of a naturalized citizen for making false statements through a criminal indictment under 18 U.S.C. § 1425. The government could áchieve 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. § Í425(a) would yield yet another unintended, anomalous result. Despite the equities supporting Maslen-jak’s position, “[w]e are not at liberty to rewrite the statute to reflect a meaning we deem more desirable” but “[ijnstead, we must give effect to the text Congress enacted.” Ali v. Fed. Bureau of Prisons,
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 Maslen-jak’s false statements to be material.
III.
In her second claim on appeal, Maslen-jak 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,
A.
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,
It is trué: that the government’s theory of the casé 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 “[cjitizenship 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,
Maslenjak again relies on the Ninth Circuit’s decision in Puerta for support. The Ninth Circuit held-there that “simply being a person who caiinot establish» [good moral character] in court is 'not a crime.” Puerta,
B.
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,
We hold that 8 U.S.C. § 1101(f)(6) is not unconstitutionally vague as applied to Maslenjak.
C.
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 ah immigration benefit and how her false testimony meant she did not meet the INA’s good moral character requirement. Specifically, Mas-lenjak argues that the district court failed to explain that “testimony” under § 1101(f)(6) had'to be an or,al statement or that Maslenjak had to give false testimony with the specific intent to obtain an immi
We hold that the district court did not abuse its discretion because the instructions, taken as a whole, accurately reflected the law. Ross,
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,
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,
For the reasons stated here, we AFFIRM the judgment of the district -court.
Notes
. The district court concluded that proof of materiality was not required based on its reading of our unreported decision in United States V!. Tongo. But we have never squarely addressed the question of whether materiality is an element of the offense under' 18 U.S.C. § 1425(a). United States v. Shordja,
. The Supreme Court’s holding , in Kungys about the definition of materiality and the question of whether the government’s proof against Maslenjak.satisfied the Kungys standard are not relevant to our decision because we hold that the government did not have to prove a material false
. The Board of Immigration Appeals has construed 18 U.S.C. § 1425(a)’s contrary to law element to include -violations of both 18 U.S.C, § 1001 (the federal perjury statute) and § 1015(a). Amouzadeh v. Winfrey,
. It is true that the phrase "contrary to law” appears in only a handful of federal criminal statutes besides 18 U.S.C. § 1425(a). See 18 U.S.C. § 545 (smuggling goodsinto the Uriit-ed States "contrary to law”); 18 U.S.C. § 1693 (mishandling mail "contrary to law”); 18 U.S.C. § 1697 (transport of persons acting as private express who themselves transport letters "contrary to law”). As such, the case law construing the phrase “contrary to law,” as Title 18 uses it, is somewhat scarce. Nevertheless, our construction of the federal smuggling statute, 18 U.S.C. § 545, and its "contrary to law” element further supports the notion that "contrary to law” should be read broadly to include criminal offenses against the laws of the United States. In United States v. Teh, the defendant was charged with smuggling bootleg films into the country "contrary to law” in violation of § 545. United States v. Teh,
; When asked at oral argument if any other federal statute criminalized immaterial false states, the United States inexplicably answered that there were none. Not only does 18 U.S.C. § 1015(a) criminalize immaterial false statements, the statute criminalizes immaterial false statements in immigration proceedings, and the district court's instructions to the jury on the "contrary to law’-' element closely tracked the language of § 1015(a).
. Without deciding whether materiality was an element of 18 U.S.C. § 1425(a), we held that it was not plain error for the district court to fail to instruct the jury on materiality and that there was sufficient evidence of materiality to sustain the conviction. Shordja,
. As Puerta illustrates, the government has taken inconsistent positions on the materiality issue in different cases before different courts at different times. We address this issue more fully below.
. The Seventh Circuit also analyzed the false statements at issue m'Latchin as violations of 18 U.S.C. § 1001(a), the federal perjury statute. Latchin,
. The district court also instructed the jury that it could find Maslenjak guilty under 18 U.S.C. § 1425(a) if the jury found that she had procured her naturalization "contrary to” the INA at .8 U.S.C. §§ 1427(a)(3) and 1101(f)(6), though the jury instructions did not actually cite those code sections. The district court instructed the jury that "false testimony" would defeat a finding of good moral character. The instructions did not, however,-address whether the false testimony had to concern, a material fact. On appeal Maslenjak- has not challenged this aspect of the jury instructions, though she does raise other objections to the district court’s instructions on good moral character. We address those challenges more fully below.
. While Maslenjak calls attention to the discrepancy between the indictment and the jury instructions, she has not argued on appeal that the jury instructions resulted in a constructive amendment of the indictment. See United States v. Hynes,
. The Supreme Court has sent mixed signals about where the “clear, unequivocal, and convincing” standard of proof falls on the continuum of evidentiary burdens and particularly how it differs from proof beyond a reasonable doubt. In an older decision, the Supreme Court described the “clear, unequivocal, and
. Maslenjak argues in her opening brief that 8 U.S.C. § 1101(f)(9), the statute’s catch-all provision, is unconstitutionally vague. That paragraph follows a non-exhaustive list of factors that will preclude a finding of good moral character; the paragraph states as follows: "The fact that any person is not within any of the foregoing classes shall not preclude a finding that for other reasons such, person is or was not of good moral character.” 8 Ú.S.C. § 1101(f)(9).
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]othirig 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.” :
Concurrence Opinion
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.