                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 05-4733



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

           versus


HAYDAR BADAWI SADIG,

                                             Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Richard L. Voorhees,
District Judge. (CR-03-62)


Argued:   November 2, 2007              Decided:     December 27, 2007


Before TRAXLER, SHEDD, and DUNCAN, Circuit Judges.


Affirmed by unpublished opinion. Judge Duncan wrote the opinion,
in which Judge Traxler and Judge Shedd concurred.


ARGUED: Anthony Glen Scheer, RAWLS, DICKINSON & SCHEER, P.A.,
Charlotte, North Carolina, for Appellant.     Amy Elizabeth Ray,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Asheville, North Carolina, for Appellee.      ON BRIEF:
Gretchen C. F. Shappert, United States Attorney, Charlotte, North
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
DUNCAN, Circuit Judge:

      A jury found Haydar Badawi Sadig (“Sadig”) guilty of knowingly

attempting to procure citizenship contrary to law, in violation of

18   U.S.C.   §   1425(a).    When    Sadig   originally   submitted   his

application for naturalization, he truthfully indicated that he had

not been arrested or charged with violating any laws.              After

submitting his application, but prior to his pre-naturalization

interview, Sadig was arrested on misdemeanor assault charges and

felony interference with a flight crew, which he subsequently

failed to disclose.     During his interview, moreover, he signed a

form representing, under penalty of perjury, that the information

he had submitted was true and correct.         Because we find that the

district court did not abuse its discretion in denying Sadig’s

request to instruct the jury that an applicant for naturalization

has no duty to volunteer information at the interview and because

we find that the district court did not err in its instruction, we

affirm.



                                     I.

      Sadig, a Sudan native, was granted permanent asylum in 1993.

On August 2, 2000, Sadig applied for citizenship by submitting a

completed N-400 form.        Question 15(b) on the form asks if the

applicant has ever “been arrested, cited, charged, [or] indicted .

. .for breaking or violating any law or ordinance[,]” to which


                                     -2-
Sadig truthfully answered in the negative.               J.A. 241.   While

returning to the United States from overseas on November 14, 2000,

however, Sadig was involved in an altercation with the airline

flight crew.   Upon arrival, Sadig was arrested and charged with

felony   interference   with   a   flight   crew   and   three   counts   of

misdemeanor assault.    Those charges were still pending at the time

of his pre-naturalization interview on August 7, 2001.1

     At the interview, Sadig reviewed his previously completed N-

400 form, which contained a check mark in the “No” box next to

question 15(b).    The final section of the form instructs the

applicant not to complete it until directed to do so at the

interview.   The paragraph under the instruction reads as follows:

“I swear that I know the contents of this application, . . . that

the corrections, numbered 1 through 9 were made at my request, and

that this amended application, is true to the best of my knowledge

and belief.”    J.A. 242.      The form also contains the following

statement:

     I certify . . . under penalty of perjury under the laws
     of the United States of America that this application,
     and the evidence submitted with it, is all true and
     correct. I authorize the release of any information from
     my records . . . to determine eligibility for the benefit
     I am seeking.




     1
      Sadig ultimately pleaded guilty to the misdemeanors and was
sentenced to a term of two years’ probation.


                                   -3-
J.A. 242.     Sadig signed the form during the interview, and was

subsequently granted U.S. citizenship.

     In December 2003, Immigration and Customs Enforcement agents

learned that Sadig became a citizen following his November 2000

arrest and that there was no reference to that arrest on his

application   even   though     the    pre-naturalization     interview   was

conducted after the arrest.           Sadig was subsequently charged with

three crimes alleging violations committed by him at his pre-

naturalization interview.       Count One charged Sadig with knowingly

making a false statement under oath in a matter relating to and

under a law of the United States relating to naturalization,

citizenship and registry of aliens, in violation of 18 U.S.C.

§ 1015(a).    Count Two charged Sadig with knowingly and willfully

making a materially false, fictitious and fraudulent statement and

representation, in violation of 18 U.S.C. § 1001(a)(2).            Finally,

Count Three charged Sadig with knowingly procuring and attempting

to procure, contrary to law, the naturalization of a person and

other evidence of naturalization and citizenship, in violation of

18 U.S.C. § 1425(a).2     J.A. 11-12.

     Sadig’s jury trial commenced on May 20, 2004.            At trial, the

government    presented   the    testimony     of   Charles   Seagle   Cross

(“Cross”), a retired Immigration and Naturalization Service (“INS”)



     2
      On May 19, 2004, the district court granted the government’s
motion to dismiss Counts Four and Five.

                                       -4-
agent with 31 years of experience as an immigration examiner.3                    The

district court accepted Cross as an expert in immigration and

naturalization        procedures.          Mr.    Cross     testified    that     the

naturalization process begins with the filing of an application,

the   N-400    form,    after     which    the   applicant    appears    before    an

adjudicator for a pre-naturalization interview.                   According to Mr.

Cross, the purpose of the interview is to “give the applicant the

chance to establish that they [sic] are entitled to the benefit

that they are seeking,” noting that the applicant has the burden of

establishing his or her entitlement to citizenship. J.A. 43.

      Mr.     Cross    further    described      the   interview    process.       He

testified that the adjudicator places the applicant under oath,

asking him to swear or affirm that the contents of the application

are correct.      The adjudicator routinely asks the applicant every

question contained in the application.                 If a change is required,

based on the answers provided by the applicant, the adjudicator

notes that change in red ink and numbers the change.                    While Cross

testified      that    all   of   the     questions    on   the   application     are

important, he stated that 15(b), which asks whether the applicant


      3
      As of March 1, 2003, INS ceased to exist as an agency within
the Department of Justice.    Its functions are now performed by
three agencies within the Department of Homeland Security: (1) the
Bureau of Immigration and Customs Enforcement, responsible for the
enforcement of immigration laws; (2) the Bureau of Citizenship and
Immigration Services, responsible for administering services and
benefits under the immigration laws; and (3) the Bureau of Customs
and Border Protection, responsible for the United States Border
Patrol. See 68 Fed. Reg. 10922-01 (Mar. 6, 2003).

                                           -5-
has “knowingly committed any crime for which [he has] not been

arrested”   or   has   “been   arrested,      cited,     charged,    indicted,

convicted, fined or imprisoned for breaking or violating any law or

ordinance, excluding traffic regulations,”             J.A. 241, is the most

significant.     If the applicant were to report that he had been

charged with a crime, the adjudicator would ask about the nature of

the criminal conduct with which he was charged.                Then, following

the interview, the applicant would be required to complete a form

related to the criminal behavior and provide the adjudicator with

a certified copy of the charging document.           According to Cross, an

applicant would not be approved for naturalization while the

charges   were   pending.      Once   the    charges    were    resolved,   the

adjudicator would make a determination as to whether the conduct

was serious enough to justify denying the applicant citizenship.

     On cross-examination, when asked whether he was aware of any

federal   regulation   or   published       manual   requiring      that   every

question on the application be asked during an interview, Cross

answered that he was not aware of any such written policy, but that

it was the standard practice of every adjudicator with whom he

worked to ask every question, particularly number 15.               Cross also

affirmed that every applicant has a duty to answer all question on

the N-400 form honestly and truthfully.              When asked whether an

applicant has a legal duty to volunteer information not asked by

the adjudicator during the interview, Cross responded that the law


                                      -6-
requires that an applicant remain eligible for naturalization up to

the moment he is sworn-in, but acknowledged that there is no

written regulation or rule requiring an applicant to voluntarily

update his application.

      Regina Bryant (“Bryant”), the adjudicator who interviewed

Sadig, testified next.           Bryant stated that she worked for the

agency for 24 years, of which 15 were spent conducting interviews.

It   was   her   practice   to   begin   each   interview   by   placing   the

applicant under oath. After that, she would go through the entire

application with the applicant to make sure that all of the

information on the application was correct, marking each question

asked in red ink.     Like Cross, Bryant testified that number 15 was

the most important question on the application; when she would

reach that question, she would pause briefly so as to emphasize its

significance.     With respect to the certification under penalty of

perjury language at the end of the application, Bryant stated that

she would instruct the applicant to read the statement and sign it

if he agreed with it; then she would sign the form as well.

      Based on what Bryant could tell from Sadig’s application, she

had in fact asked him all of the questions, including number 15,

because each question had a red check mark next to it.             According

to Bryant, had Sadig changed his answer to question 15 from the

“no” that he originally reported to a “yes,” she would have made

notes next to the question.          Further, Bryant noted that Sadig’s


                                      -7-
application reflected nine changes based on information gathered

during the interview and that Sadig had signed the application in

her presence. Bryant had signed the form as well.

     The government’s final witness, Special Agent John Scott

Sherrill (“Agent Sherrill”), was an investigator working with the

Bureau of Immigration and Customs Enforcement.                 Agent Sherrill

testified      that    he   began     investigating       Sadig’s      alleged

naturalization fraud in 2003 after learning that Sadig had become

a citizen, following his arrest on assault charges, without having

mentioned the arrest on his application.                When Agent Sherrill

questioned Sadig about his failure to report his arrest during his

pre-naturalization     interview,    Sadig    responded       that   while   the

adjudicator had asked him most of the questions on the application,

she had not asked him about criminal charges or convictions.

     Similarly, when testifying on his own behalf at trial, Sadig

stated that the adjudicator did not ask him every question on the

application and that the interview only lasted between ten and

fifteen minutes.      Sadig specifically stated that the adjudicator

did not ask him question 15(b), related to his criminal conduct.

Because   he    had   not   been   asked,    he   did   not    volunteer     any

information, consistent with the legal advice he had received.4


     4
      Sadig’s wife also testified that she and her husband had
considered withdrawing their citizenship applications after Sadig’s
arrest, but decided against it after consulting with their friend,
a law professor at Emory Law School in Atlanta, Georgia.       They
decided that Sadig should testify truthfully if asked about his

                                     -8-
Sadig also testified that at the end of his interview, Bryant

handed him numerous documents, in addition to the N-400 form, which

he signed without reading.     In particular, Sadig testified that he

did not read the statement regarding providing truthful evidence

under penalty of perjury at the end of the application prior to

signing it.

     With respect to Count Three, charging him with attempting to

procure naturalization contrary to law, Sadig filed proposed jury

instructions essentially stating that there is no legal duty for an

applicant     to   volunteer    any     information   during   the   pre-

naturalization interview.      The government opposed the instruction,

noting that the form itself requires that an applicant affirm at

the conclusion of the interview that everything in the application

is correct.    The government argued that the proposed instruction

would be misleading and confusing in light of that requirement.

The district court declined to give the proffered instruction.

Instead, it instructed the jury as to the elements of the offense

by tracking the language of the statute.5


criminal charges that had arisen since the filing of his
application, but that he would not volunteer any information.
     5
      The judge instructed the jury that Sadig

     could be found guilty of [knowingly procuring citizenship
     contrary to law] only if each of the following elements
     of the crime [was] proved beyond a reasonable doubt:
     First, that the defendant procured or attempted to
     procure citizenship. Second, that it was contrary to the
     law to procure such citizenship. And third, that he knew

                                      -9-
     During closing arguments, the government disputed Sadig’s

contention that an applicant has no duty to volunteer information

during a pre-naturalization interview by stating “[t]hat is not the

law and that is not accurate.”    J.A. 551.     The government explained

to the jury that the purpose of the “under penalty of perjury”

language was to compel an applicant to inform INS if information

contained in the application was inaccurate.        See J.A. 242.

     The jury acquitted Sadig of Counts One and Two involving

knowingly making false statements, but convicted him of Count

Three.   Sadig now appeals, arguing that because the district court

refused to give his proposed jury instructions as to Count Three,

the jury received improper instruction as to the law.



                                   II.

     We first turn to the issue of whether the district court

abused   its   discretion   by   not   giving   Sadig’s   proposed   jury

instruction.    United States v. Russell, 971 F.2d 1098, 1107 (4th

Cir. 1992) (a district court’s “decision to give (or not to give)

a jury instruction . . . [is] reviewed for abuse of discretion.”).

A “district court should give the instruction that a criminal

defendant requests as to any defense as long as the instruction: 1)

has an evidentiary foundation; and 2) accurately states the law



     it was contrary to the law to procure such citizenship.
J.A. 571-72.

                                  -10-
applicable to the charged offense.”            United States v. Stotts, 113

F.3d    493,   496   (4th   Cir.   1997).      Even    if   these   factors   are

satisfied, failure to give the defendant’s instruction is not

reversible error unless a defendant can show that the record as a

whole demonstrates prejudice. See United States v. Ellis, 121 F.3d

908,923 (4th Cir. 1997).

       Sadig contends that the district court abused its discretion

by refusing to give his proposed instruction that “[t]he law does

not require that someone being interviewed volunteer information to

the INS.”      J.A. 455.    This argument is a red herring.         While Sadig

is   technically     correct   that   no     legal    requirement   compels     an

applicant to volunteer information during an interview, the law

does require an applicant to remain eligible for naturalization up

until the date he is administered the oath of allegiance. Further,

the burden is on the applicant to prove such eligibility.               Berenyi

v. Dist. Dir., INS, 385 U.S. 630, 637 (1967);               8 C.F.R. § 316.2 (b)

(“The    applicant    shall    bear   the    burden    of   establishing   by   a

preponderance of the evidence that he or she meets all of the

requirements for naturalization[.]”); 8 C.F.R. § 316.10(a)(1) (“An

applicant for naturalization bears the burden of demonstrating that

. . . he or she has been and continues to be a person of good moral

character.      This includes the period between the examination and

the administration of the oath of allegiance.”).




                                      -11-
     Moreover, the N-400 form and the interview are the process

through which an applicant proves eligibility.             The form itself

requires that all information be true as of the date of the

interview and obligates the applicant to sign an oath to that

effect.    The applicant imposes a requirement on himself to be

forthcoming    by   swearing   “under   penalty    of   perjury”   that   the

information in the application is true as of the date of the

interview.     See J.A. 242.    Even if the applicant does not have a

generalized duty to volunteer information, the oath at the end of

the application specifically and absolutely requires that the

answers   be   true   and   correct.      Read   together,   the   form   and

regulations required Sadig to respond in any manner necessary,

including volunteering information, to ensure that the statements

in the N-400 were accurate.

     A jury instruction that the applicant does not have a duty to

volunteer information would fly in the face of the affirmative

obligation to prove his eligibility by answering the questions on

the N-400 form truthfully, and would be at best misleading and at

worst an inaccurate statement of the law.          The district court did

not abuse its discretion in refusing to give such an instruction,

and it was well within the province of the jury to decide that

Sadig’s failure to disclose the charges against him constituted the

knowing procurement of citizenship contrary to law.




                                   -12-
      Even if Sadig could have shown that the court abused its

discretion, he did not demonstrate that the failure to give his

requested instruction, in light of the record as a whole, was

prejudicial error.     See Ellis, 121 F.3d at 923..            To find such an

error, we would have to conclude that the evidence was insufficient

to support a finding that by failing to disclose the charges, Sadig

knowingly procured citizenship contrary to law.               Cf United States

v. Tipton, 90 F.3d 861, 883 (4th Cir. 1996).                  For the reasons

stated above, we cannot reach such a conclusion.

      Although Sadig specifically challenged the failure to give his

proffered jury instruction and acknowledged at oral argument that

if we disagree we can properly affirm the district court, out of an

abundance of caution we will briefly address the question of

whether the court’s instruction as to Count Three fairly stated the

controlling law.



                                     III.

      We review de novo the legal question of whether a court has

properly instructed the jury on the elements of an offense. United

States v. Rahman, 83 F.3d 89, 92 (4th Cir. 1996).              With respect to

the   adequacy   of   the   instructions,      this   court    “accord[s]   the

district court much discretion and will not reverse provided that

the   instructions,    taken    as   a      whole,    adequately   state    the

controlling law.”      Teague v. Bakker, 35 F.3d 978, 985 (4th Cir.


                                     -13-
1994); see also United States v. Cobb, 905 F.2d 784, 788-89 (4th

Cir. 1990).

       Section 1425(a) criminalizes the conduct of any person who

“knowingly procures or attempts 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).        As noted

above, the district court instructed the jury that they could only

convict Sadig of this offense if they found (1) that Sadig procured

or attempted to procure citizenship, (2) that it was contrary to

the law to procure such citizenship, and (3) that Sadig knew it was

contrary to the law to procure such citizenship.

       Sadig admits, as indeed he must, that the district court’s

instruction          accurately   tracked   the    language   of    the   statute.

Nonetheless, for reasons that parallel those in support of his

proffered instructions, Sadig maintains that the jury instruction

did not fairly and adequately state controlling law.                 According to

Sadig, Cross’s testimony and the government’s closing argument left

the jury with an improper understanding of the law: that there was

a     “legal    requirement       imposed   on     citizenship     applicants   to

voluntarily update their application when there is a change as to

one     of     the    questions     asked   when    they   originally       apply.”

Appellant’s Br. at 13.            Therefore, Sadig contends that          Cross and

the government misstated the law and the court erred in not

clarifying their misstatements in the jury instructions.


                                        -14-
       This argument must also fail.             Cross’s testimony and the

government’s closing arguments were not misstatements of the law,

rather they were accurate reflections of the requirements of the N-

400 form.      Cross only testified within the scope of his expertise

as to INS procedures and the requirements of its application.                        He

acknowledged that nothing in the regulations or the adjudicator’s

field manual states that an applicant has a duty to voluntarily

update his application and then simply reiterated the affirmative

obligations imposed by the form and the regulations. To the extent

that   Cross    testified      as   to   what   the    law   is,   it    is    not    a

misstatement that an applicant must remain eligible up until the

time he takes his oath.         See Berenyi, 385 U.S. at 637.            As we have

already explained, any instruction to the contrary would simply be

incorrect.      Similarly, the government’s closing argument merely

enforced    what    was   in    fact     a   correct    statement       as    to   the

requirements of the application that the information therein be

true and correct under penalty of perjury.                   Therefore we must

disagree with Sadig’s contention that the testimony left the jury

with an incorrect understanding of the law that the district court

needed to clarify.



                                         IV.

       Because we find that the court did not abuse its discretion in

denying to give Sadig’s proposed jury instruction, and because we


                                         -15-
further   find   that   the   district   court   did   not   err     in   its

instruction, the judgment of the district court is

                                                                   AFFIRMED.




                                  -16-
