                               RECOMMENDED FOR FULL-TEXT PUBLICATION
                                   Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                            File Name: 19a0284p.06

                       UNITED STATES COURT OF APPEALS
                                        FOR THE SIXTH CIRCUIT



 UNITED STATES OF AMERICA,                                      ┐
                                         Plaintiff-Appellee,    │
                                                                │
                                                                 >        No. 14-3864
         v.                                                     │
                                                                │
                                                                │
 DIVNA MASLENJAK,                                               │
                                      Defendant-Appellant.      │
                                                                ┘

                      On Remand from the Supreme Court of the United States.
              United States District Court for the Northern District of Ohio at Cleveland.
                      No. 1:13-cr-00126-1—Benita Y. Pearson, District Judge.

                                         Argued: October 3, 2018

                                Decided and Filed: November 21, 2019

       Before: GIBBONS and McKEAGUE, Circuit Judges; ANDERSON, District Judge.*

                                           _________________

                                                 COUNSEL

ARGUED: Zimra Payvand Ahdout, KIRKLAND & ELLIS LLP, New York, New York, for
Appellant. Daniel R. Ranke, UNITED STATES ATTORNEY’S OFFICE, Cleveland, Ohio, for
Appellee. ON SUPPLEMENTAL BRIEF: Zimra Payvand Ahdout, KIRKLAND & ELLIS
LLP, New York, New York, Christopher Landau, P.C., Patrick Haney, Jeff Nye, KIRKLAND
& ELLIS LLP, Washington, D.C., for Appellant. Daniel R. Ranke, UNITED STATES
ATTORNEY’S OFFICE, Cleveland, Ohio, for Appellee.




          *The Honorable S. Thomas Anderson, United States District Judge for the Western District of Tennessee,
sitting by designation.
 No. 14-3864                        United States v. Maslenjak                              Page 2


                                        _________________

                                              OPINION
                                        _________________

       JULIA SMITH GIBBONS, Circuit Judge. Divna Maslenjak immigrated to the United
States as a refugee in 2000. Maslenjak claimed that she and her family feared for their safety
because they faced “persecution from both sides of [Bosnia’s] national rift.” Maslenjak v.
United States, 137 S. Ct. 1918, 1923 (2017). She said that Bosnian Muslims would persecute her
family because of their ethnicity, and Bosnian Serbs would persecute her family because her
husband had evaded conscription into the Bosnian Serb army. But part of Maslenjak’s story was
untrue. In fact, Maslenjak’s husband had not only served in the Bosnian Serb army but was an
officer in a brigade implicated in war crimes.

       Six years later, when Maslenjak applied for naturalization, she again lied to immigration
officials. This time, Maslenjak’s lies “concerned her prior statements to immigration officials:
She swore that she had been honest when applying for admission as a refugee, but in fact she had
not.” Id. at 1930. In August 2007, Maslenjak was naturalized as a citizen of the United States.

       Based on her lies during the naturalization process, Maslenjak was charged with and
convicted of two crimes: (1) unlawful procurement of naturalization or citizenship, in violation
of 18 U.S.C. § 1425(a); and (2) misuse of evidence of naturalization or citizenship, in violation
of 18 U.S.C. § 1423. At trial, the district court instructed the jury that it could convict Maslenjak
of procuring her naturalization contrary to law based on a false statement in the naturalization
process, even if the statement was not material. Maslenjak challenged that instruction on appeal
and this panel affirmed the district court.

       The Supreme Court reversed. It held that lies told in the immigration process must be
material—meaning that the lies “would have mattered to an immigration official” and “played
some role in [the] acquisition of citizenship.” Maslenjak, 137 S. Ct. at 1923. The Court
instructed that the government could satisfy this materiality element by proving one of two
things beyond a reasonable doubt: (1) that the facts the applicant misrepresented would
themselves disqualify her from receiving citizenship; or (2) that the applicant’s false statements
 No. 14-3864                       United States v. Maslenjak                              Page 3


hid facts that, if known, would have triggered an investigation that likely would have led to the
discovery of other disqualifying facts. Id. at 1928–29. The Supreme Court remanded to this
panel to determine whether the erroneous jury instruction was harmless. Id. at 1931.

       Because the government has not proven beyond a reasonable doubt that a properly
instructed jury would have convicted Maslenjak, the instructional error was not harmless.
We therefore vacate Maslenjak’s conviction and remand to the district court for a new trial.

                                                 I.

       Petitioner Divna Maslenjak is an ethnic Serb who was raised in what is now Bosnia.
Yugoslavia collapsed in the 1990s and began splitting into multiple countries along religious and
ethnic lines. Bosnia was a new country formed by the split. Bosnia was primarily made up of
three ethnic groups: Bosnian Muslims, Bosnian Serbs, and Bosnian Croatians. A civil war arose
between the three ethnic groups and the Bosnian Serbs formed their own army, the “VRS,” with
the goal of establishing an independent state.

       In 1998, Maslenjak and her family met with an American immigration officer in Belgrade
to apply for refugee status. Maslenjak, who was the primary applicant for refugee status,
explained in the application interview that her family feared persecution on multiple fronts. She
stated that in 1992 the entire family had been forced to flee their home in Bosnia because of
ethnic cleansing by Bosnian Muslims in the area. The family left Bosnia for a neighboring
country for a short period of time. Then, Maslenjak said, she and the children returned to a
majority-Serb area of Bosnia, but they had to leave her husband—Ratko Maslenjak—behind
because he feared he would be conscripted into the Bosnian Serb army. As a result, Maslenjak
stated, she and her children lived apart from her husband from 1992 to 1997. Thus, at the time of
their application, the Maslenjaks couldn’t return to their home in a majority-Muslim area of
Bosnia because of persecution based on their ethnicity. And, according to Maslenjak, they also
couldn’t live as a family in a majority-Serb area of Bosnia because they feared retaliation for her
husband’s failure to serve in the Bosnian Serb army during the war. The Maslenjaks swore and
affirmed that the information they provided in the refugee interview was true.
 No. 14-3864                       United States v. Maslenjak                             Page 4


        The parties do not contest that many of Maslenjak’s statements in the refugee interview
were false. In actuality, Maslenjak’s husband lived with the rest of the family and served in the
VRS from 1992 to 1997. During that time, Maslenjak’s husband was an officer in a VRS
brigade which perpetrated a 1995 genocide of 5,000 to 7,000 Bosnian Muslims in a United
Nations safe zone.

        Nevertheless, based on Maslenjak’s interview, the family was granted refugee status in
1999 and moved to Ohio in 2000. Maslenjak obtained lawful permanent resident status in 2004.

        In 2006, Maslenjak filed an N-400 Application for Naturalization. At the same time, she
was interviewed and verbally asked the same questions as those on the N-400 form. The
naturalization application and interview included two questions key to the case at bar:

        (23) Have you ever given false or misleading information to any U.S. government
             official while applying for any immigration benefit or to prevent deportation,
             exclusion or removal?
        (24) Have you ever lied to any U.S. government official to gain entry or
            admission into the United States?

CA6 R. 18, Appellant Appx., at 17.         Maslenjak answered “no” to both questions.         Her
naturalization application was approved, and she became a United States citizen on August 3,
2007.

        One month later, her husband was convicted in the Northern District of Ohio of making
false statements on government documents by failing to report that he served in the VRS during
the Bosnian War. The criminal conviction made Maslenjak’s husband subject to removal from
the United States, and he was subsequently taken into ICE custody. He then filed a petition for
asylum.

        Relying on her own naturalization status, Maslenjak filed an I-130 Petition for Alien
Relative—a form only naturalized persons can submit—supporting her husband’s asylum
petition. In 2009, Maslenjak testified at her husband’s immigration proceeding that, contrary to
her representations in connection with her 1998 application for refugee status, her husband had
lived with the family in Bosnia and served in the VRS after 1992.
 No. 14-3864                        United States v. Maslenjak                              Page 5


       A federal grand jury indicted Maslenjak in 2013 on two counts: (1) unlawful procurement
of citizenship or naturalization, in violation of 18 U.S.C. § 1425(a); and (2) misuse of evidence
of citizenship or naturalization, in violation of 18 U.S.C. § 1423. As to the first count, the
indictment alleged that Maslenjak unlawfully procured naturalization by answering “no” to
questions 23 and 24 on the naturalization application even though she “then well knew she had
lied to government officials when applying for her refugee status and her lawful permanent
residence status” about her husband’s whereabouts and military service. DE 1, Indictment, Page
ID 1–2. As to the second count, the indictment charged Maslenjak with knowingly misusing her
illegally obtained naturalization certificate to file an I-130 Petition for Alien Relative in support
of her husband’s asylum petition.

       A jury convicted Maslenjak on both counts in 2014.             The district court sentenced
Maslenjak to two years of probation, and, based on her conviction, revoked her citizenship
pursuant to 8 U.S.C. § 1423. Maslenjak timely appealed.

       On appeal, the main issue was whether § 1425(a)—under which Maslenjak was
convicted for unlawful procurement of naturalization—requires proof that a false statement is
material to the naturalization decision.     Section 1425(a) makes it a crime to “knowingly
procure[] or attempt[] to procure” naturalization “contrary to law.”         Separately, 18 U.S.C.
§ 1015(a) prohibits “knowingly mak[ing] any false statement under oath” in a naturalization
proceeding. Thus, if an applicant violates § 1015(a), she has acted “contrary to law” for the
purpose of § 1425(a).

       At trial, the district court instructed the jury that to find Maslenjak had violated
§ 1015(a)—and therefore acted “contrary to law” under § 1425(a)—it was only required to
conclude that “one of [her] statements was false,” even if the “false statement did not influence
the decision to approve [her] naturalization.” DE 62, 4/17/14 Trial Tr. IV, Page ID 1118–21.
Maslenjak objected to that interpretation and argued on appeal that the district court erred by
instructing the jury that it could convict under § 1425(a) based on any false statement in the
naturalization process—that is, any violation of § 1015(a)—regardless of whether it played a role
in her obtaining citizenship. This panel affirmed Maslenjak’s conviction and held that § 1425(a)
does not require proof of a material false statement.
 No. 14-3864                       United States v. Maslenjak                             Page 6


       The Supreme Court granted certiorari. It vacated this panel’s judgment, holding that the
jury instructions were erroneous because they omitted a materiality requirement. Maslenjak,
137 S. Ct. at 1930–31. The Court explained that the district court erred by instructing the jury
“that it could convict based on any false statement in the naturalization process, . . . no matter
how inconsequential to the ultimate decision.” Id. at 1930. “The issue a jury must decide in a
case like this one,” the Court specified, “is whether a false statement sufficiently altered those
processes as to have influenced an award of citizenship.” Id. at 1928. The Court remanded to
this panel to determine whether the instructional error was harmless. Id. at 1930–31.

                                               II.

       The district court’s omission of an element in the jury instructions “is an error that is
subject to harmless-error analysis.” Neder v. United States, 527 U.S. 1, 15 (1999). An error is
harmless when the government establishes “beyond a reasonable doubt that the error complained
of did not contribute to the verdict obtained.” Id. (quoting Chapman v. California, 386 U.S. 18,
24 (1967)). In other words, the government must prove on appeal that, beyond a reasonable
doubt, a reasonable jury would have reached the same verdict without the error. See id. at 18
(“Is it clear beyond a reasonable doubt that a rational jury would have found the defendant guilty
absent the error?”).

                                               III.

       The Supreme Court held that a conviction under § 1425(a) requires that Maslenjak’s false
statements were material to the decision to approve her citizenship application. Maslenjak,
137 S. Ct. at 1926–28.    That is, her false statements must have “sufficiently altered those
processes as to have influenced an award of citizenship.” Id. at 1928. The Court explained that
the government could demonstrate that Maslenjak’s false statements were material by showing
either: (1) that the facts Maslenjak misrepresented are themselves disqualifying (the “stand-alone
theory”); or (2) that the lies could have “led to the discovery of other facts” which are
disqualifying (the “investigation-based theory”). Id. at 1928–29 (quoting Chaunt v. United
States, 364 U.S. 350, 352–53 (1960)).
 No. 14-3864                        United States v. Maslenjak                                Page 7


        Here, the district court’s instructional error was not harmless because the government has
not proven beyond a reasonable doubt that a properly instructed jury would have concluded
either: (1) that the facts Maslenjak misrepresented were themselves disqualifying; or (2) that the
misrepresentations prevented an investigation which would have predictably led to the discovery
of other disqualifying facts. We therefore vacate Maslenjak’s conviction and remand to the
district court for a new trial.

                                                  A.

        The Supreme Court instructed that the jury could have convicted Maslenjak if “the thing
she misrepresented when seeking citizenship . . . were itself a reason to deny naturalization—say,
because it counted as ‘false testimony for the purpose of obtaining [immigration] benefits’ and
thus demonstrated bad moral character.”        Maslenjak¸ 137 S. Ct. at 1930–31 (alteration in
original).

        Under this first, “stand-alone” theory, the government must prove that the misrepresented
fact is alone disqualifying. Id. at 1928–29 (“[W]hen the defendant misrepresents facts that the
law deems incompatible with citizenship, her lie must have played a role in her naturalization.”).
Proof that a naturalization applicant is not of good moral character is a stand-alone disqualifying
fact. See 8 U.S.C. § 1427(a) (requiring that an applicant for naturalization have good moral
character). Not just any lie establishes that a person lacks good moral character for the purpose
of rescinding citizenship. Maslenjak, 137 S. Ct. at 1927 (“The statute’s description of ‘good
moral character’ singles out a specific class of lies . . . as a reason to deny naturalization.”). Lies
made “for the purpose of obtaining [immigration] benefits” negate the “good moral character”
requirement. 8 U.S.C. § 1101(f)(6). But lies told out of “embarrassment, fear, or a desire for
privacy”—as opposed to lies told “with the subjective intent of obtaining immigration
benefits”—are not disqualifying facts under the “good moral character” requirement. Kungys v.
United States, 485 U.S. 759, 780 (1988).

        Here, the government has not shown “beyond a reasonable doubt” that the district court’s
erroneous jury instructions “did not contribute to the verdict obtained.” Neder, 527 U.S. at 15
(quoting Chapman, 386 U.S. at 24). The district court instructed the jury that Maslenjak must
 No. 14-3864                             United States v. Maslenjak                                       Page 8


have acted “knowingly.” DE 62, 4/17/14 Trial Tr. IV, Page ID 1120–21. And the jury found
that she did, in fact, act knowingly—that she did not lie out of “ignorance, mistake, accident or
carelessness.” Id.

        But the purpose for which Maslenjak made the false statements was never an issue at
trial; indeed, the record does not directly speak to the purpose for which Maslenjak made the
false statements. As the government argues, there is evidence in the record from which a
reasonable, properly instructed jury might have inferred that Maslenjak lied for the purpose of
obtaining immigration benefits. It is true that lying during an immigration proceeding could give
a jury some context as to the purpose of the lie, especially here where Maslenjak’s lie in
connection with her refugee application went to the heart of her application. She both conjured
up a reason to fear persecution by the Bosnian Serbs and hid a fact that may have prevented her
husband from obtaining refugee status and citizenship. A reasonable juror could find that these
lies speak for themselves. But the government’s argument fails when analyzed under the relevant
standard of review. The government must prove, beyond a reasonable doubt, that the jury would
have found the defendant guilty absent the error. Neder, 527 U.S. at 15. The evidence must be
“overwhelming.” Id. at 17. Here, the evidence isn’t overwhelming. We can’t say that a
properly instructed jury would undoubtedly conclude that Maslenjak lied for the purpose of
getting immigration benefits, rather than out of embarrassment regarding her husband’s service
in a controversial military unit or out of fear that her family could be retaliated against for his
military involvement.1 And lies told out of “embarrassment, fear, or a desire for privacy” are not
disqualifying facts under the “good moral character” requirement. Maslenjak, 137 S. Ct. at 1927
(quoting Kungys, 485 U.S. at 780). Also recall that Maslenjak gave two reasons for her family’s
fear of persecution in Bosnia. Only one of those reasons—that they feared retaliation for her
husband’s failure to serve in the VRS—was untrue. The fact that Maslenjak had another,
seemingly legitimate basis for seeking refugee status creates doubt about whether she lied for the
purpose of getting an immigration benefit.


        1In   fact, Maslenjak suggested at oral argument that she could introduce evidence on remand that she lied
out of fear that her family back in Bosnia would be retaliated against for her husband’s military involvement. See
Neder, 527 U.S. at 15 (finding harmless error in part because the defendant did not “suggest that he would introduce
any evidence bearing upon [the element omitted in the jury instructions] if so allowed”).
 No. 14-3864                       United States v. Maslenjak                              Page 9


       Maslenjak’s case is easily distinguishable from United States v. Haroon, 874 F.3d 479
(6th Cir. 2017). Like the case at bar, Haroon dealt with a conviction under § 1425(a) for making
false statements by lying in response to questions 23 and 24 on the naturalization application.
874 F.3d at 483. And the Haroon court upheld the conviction. Id. at 481. But unlike Maslenjak,
the defendant in Haroon challenged the sufficiency of the evidence supporting his conviction.
Id. at 482. The sufficiency of the evidence standard is a very different standard of review than
the “beyond a reasonable doubt” standard at issue here.            Specifically, when reviewing a
conviction on appeal for sufficiency of the evidence, this court “must sustain the verdict if there
is substantial evidence, viewed in the light most favorable to the Government, to uphold the
jury’s decision.” Burks v. United States, 437 U.S. 1, 17 (1978).

       Although the instant record contains evidence from which a jury could infer that
Maslenjak’s lies were for the purpose of obtaining immigration benefits, it lacks the
“overwhelming” evidence required for this court to conclude that the error is harmless. Neder,
527 U.S. at 17. Moreover, unlike the defendant in Haroon, Maslenjak never conceded that she
made a false statement for the purpose of obtaining immigration benefits. See Haroon, 874 F.3d
at 483 (“Haroon does not contest that his statements were ‘made with the subjective intent of
obtaining immigration benefits.’” (quoting Kungys, 485 U.S. at 780)). Haroon therefore does
not compel the conclusion that Maslenjak lacked good moral character.

       As such, the government has not proven beyond a reasonable doubt that a properly
instructed jury would have concluded that Maslenjak’s false statements negated the “good moral
character” requirement for citizenship. The error is therefore not harmless.

                                                B.

       As to the second, “investigation-based” theory, the government must make a two-part
showing. First, “the Government has to prove that the misrepresented fact was sufficiently
relevant to one or another naturalization criterion that it would have prompted reasonable
officials, ‘seeking only evidence concerning citizenship qualifications,’ to undertake further
investigation.” Maslenjak, 137 S. Ct. at 1929 (quoting Kungys, 485 U.S. at 774 n.9). Second, the
government “need only establish that the investigation ‘would predictably have disclosed’ some
 No. 14-3864                       United States v. Maslenjak                                Page 10


legal disqualification.” Id. (quoting Kungys, 485 U.S. at 774). The government does not need to
prove “definitively that its investigation would have unearthed a disqualifying fact.” Id.

        Here, even if Maslenjak’s false statements had led to an investigation, such an
investigation would not have predictably disclosed disqualifying facts.        At trial, a district
adjudications officer who interviewed Maslenjak for her naturalization application testified that
if Maslenjak had responded “yes” to either question 23 or 24, there would have been further
investigation into her application. This investigation likely would have led to the revelation that
Maslenjak had lied about her husband’s military service in her asylum interview.                 Mr.
Maslenjak’s military service may have been a disqualifying fact for him. But marriage to
someone who is in a foreign military is not a fact which would have independently justified
denying naturalization for Maslenjak herself. See 8 U.S.C. §§ 1422-27. And the government
points to no other facts in the record which, even if known at the time of Maslenjak’s
naturalization application, would have made her ineligible for citizenship. Accordingly, the
government has not proven beyond a reasonable doubt that a properly instructed jury would have
convicted Maslenjak based on an “investigation-based” theory.

                                                IV.

        For these reasons, we vacate Maslenjak’s convictions and remand to the district court for
a new trial.
