                              In the

United States Court of Appeals
               For the Seventh Circuit

Nos. 07-4009 & 08-1085

U NITED S TATES OF A MERICA,
                                                    Plaintiff-Appellee,
                                  v.

S AMI K OSHABA L ATCHIN ,
                                               Defendant-Appellant.


            Appeals from the United States District Court
        for the Northern District of Illinois, Eastern Division.
            No. 04 CR 661—Rebecca R. Pallmeyer, Judge.



    A RGUED O CTOBER 28, 2008—D ECIDED F EBRUARY 4, 2009




 Before B AUER, R IPPLE, and E VANS, Circuit Judges.
  E VANS, Circuit Judge. A jury found Sami Latchin, an
Iraqi native who moved to the United States in the early
1990s, guilty of procuring citizenship illegally by making
false statements in a naturalization application and of
acting as an “unregistered agent” (a spy) for the Iraqi
government. The case against Latchin was built on a
treasure trove of Iraqi government materials seized by
the FBI in Baghdad in 2003 after the fall of Saddam
2                                   Nos. 07-4009 & 08-1085

Hussein. After his convictions, Latchin’s citizenship was
revoked. On this appeal, he asks us to vacate his con-
victions for want of sufficient evidence and error in the
jury instructions. Because the government supposedly
failed to prove that he was ineligible for citizenship,
Latchin asks us to undo the revocation order as well. We
begin with the facts viewed in the light most favorable
to the verdict.
  The government alleged that Saddam Hussein, anxious
to recover from his defeat in the First Gulf War, established
an ambitious spy program. The plan: install “sleeper”
agents in countries around the world; have them spend
the next few years earning the trust of their communities;
and then, when they had gained positions of influence,
activate them to gather intelligence and influence policy
in favor of Saddam’s Ba’athist regime. All spy programs,
of course, operate on deception—the spies pretend to be
people they aren’t. But Saddam’s plan took it to a whole
new level—not even the spies would know they were
part of the program until they were activated many
years down the road.
  Latchin was selected as one of the sleeper agents and
given the dubious honor of being the only spy planted
in the United States. He was a natural choice. Latchin
joined the Iraqi Intelligence Service (IIS) in 1979, so he
had years of experience under his belt. More importantly,
though, he was uniquely positioned to facilitate the
IIS’s chief mission in the United States—to gather intelli-
gence on Iraqi opposition groups. As a member of the
minority Christian community in Iraq, Latchin would
Nos. 07-4009 & 08-1085                                     3

have the inside track to befriending Iraqi Christians in
the United States, individuals Saddam thought were
hostile to his regime. And Latchin had experience
spying on these people. In the 1980s, he posed as an Iraqi
Airways employee in Athens, gathering information on
Iraqi Christians entering the United States by way of
Greece.
   As we said, though, participants in the sleeper program,
including Latchin, had no idea they were part of this
particular program. So when Latchin moved to the
United States in 1993, he was unaware that he had been
chosen as a sleeper agent. But that doesn’t mean Latchin
thought he was out of the spy business altogether. An IIS
agent testifying under the pseudonym “Ali” said that he
approached Latchin while Latchin was still in Iraq and
informed him that the IIS approved his relocation to the
United States. Ali did not give Latchin “any details about
the plan,” but Latchin must have known there would be
work to do. The agent told Latchin “not to do anything
whatsoever, just get [to the United States] and settle
until I give you further details about the plan later.” It is
unclear whether those “details” ever came or whether
Latchin took any covert action once he arrived in the
United States. What we do know is that, after he moved
here, Latchin traveled to Eastern Europe on several occa-
sions between 1994 and 1997 to meet with Ali, who was
then acting as Latchin’s “handler.” As a handler, Ali was
essentially a liaison between Latchin and the IIS: he
gave Latchin a codename; devised a cover story in case
Latchin ever ran into trouble with the authorities; and
filed reports with the IIS following meetings with Latchin.
4                                    Nos. 07-4009 & 08-1085

But the most salient action taken by Ali was compensating
Latchin for his services, payments that totaled approxi-
mately $24,000 per year.1 To counter this evidence, Latchin
argued that he simply thought it was his retirement pay.
Latchin presented evidence that he had retired from the
IIS and moved to America with the agency’s blessing
(but nothing more).
  In any event, Latchin settled down in 1993 with his
family in Chicago and acquired a job as a counter agent at
O’Hare International Airport. After residing in the United
States for five years, Latchin successfully applied for
naturalization in 1998. That may strike the reader as a
shock. How could a spy for Saddam Hussein—whether
past or present—acquire citizenship so easily? According
to the government, only by lying.
   The application form asked three critical questions. First,
it asked Latchin to “[l]ist [his] employers during the last
five (5) years.” Latchin reported his work at O’Hare but
said nothing of the IIS or any other involvement with the
Iraqi government. He maintained his silence when he
arrived at the second question. That question asked him
to “[l]ist [his] present and past membership in or affilia-
tion with every organization, association, fund, foundation,
party, club, society, or similar group in the United States
or any other place,” including “military service.” Latchin
wrote “none.” Finally, the application inquired whether


1
  The government also introduced evidence that Latchin had
other handlers and received other payments after Ali retired
in 1998.
Nos. 07-4009 & 08-1085                                     5

Latchin had been “absent from the U.S. since becoming a
permanent resident.” Latchin admitted that he had trav-
eled outside the country on a number of occasions but
said he merely went on “vacation.”
  After Latchin completed the naturalization form, he
met with Emily Reyes of the Immigration and Naturaliza-
tion Service (INS) for a live interview. Reyes quizzed
Latchin on his command of the English language and
knowledge of United States history and government. She
also reviewed the naturalization form and asked Latchin
to confirm his answers, which he did without exception.
With no inkling of Latchin’s connections to the IIS, Reyes
approved the application “on the spot.” Had Latchin
disclosed his affiliation with the IIS, however, Reyes
testified she would have investigated further and passed
the matter along to her supervisor.
  With this evidence in place, the jury was asked to
decide whether Latchin (1) procured citizenship illegally
by making false statements in violation of 18 U.S.C.
§ 1425(a), and (2) acted as an unregistered foreign agent
in violation of 18 U.S.C. § 951(a).2 The jury answered “yes”
on both counts, and now we must decide whether that
verdict was supported by sufficient evidence. In addition,
we must decide whether the trial court committed revers-
ible error in instructing the jury on the requirements of
§ 1425(a) and, if the conviction stands after all that,
whether the court erred in revoking Latchin’s citizenship.


2
  Latchin was also convicted of three other counts, but those
are not before us on appeal.
6                                   Nos. 07-4009 & 08-1085

  When a defendant disputes the sufficiency of the evi-
dence, we “must determine whether, after viewing the
evidence in the light most favorable to the prosecution,
any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” United
States v. Haddad, 462 F.3d 783, 791 (7th Cir. 2006) (internal
quotation marks omitted). We start with Latchin’s con-
viction under § 1425(a).
  Section 1425(a) makes it a crime to “knowingly
procure[ ]” or “attempt[ ] to procure” naturalization in
contravention of the law. 18 U.S.C. § 1425(a). One of the
ways a person can procure citizenship illegally, the way
charged in this case, is to make false statements in a
naturalization application. 18 U.S.C. § 1001(a). However,
though the elements of the crime of procuring citizenship
through false statements would seem clear enough, we
have never ventured to define them. Both sides agree
that a false statement has to be “material” to sustain a
conviction—a trivial falsehood will not do—but they cross
swords over what that word means and what else might
be necessary. The government advocates for a definition
of materiality that is consistent with general legal
usage: a misrepresentation is material if it influenced the
naturalization decision, regardless of whether it was
outcome-determinative. Latchin would increase the gov-
ernment’s burden so that a false statement is only material
if a true statement would have precluded citizenship.
Since no one testified that Latchin’s application would
have been outright denied had he disclosed his affiliation
with the IIS—Reyes only said she would have asked more
questions and flagged the case for a supervisor—Latchin
Nos. 07-4009 & 08-1085                                         7

submits that the government failed to prove its case. We
disagree.
  The pivotal decision in all this is Kungys v. United States,
485 U.S. 759 (1988). Kungys holds that a statement in an
application for citizenship is material if it has a “natural
tendency to influence” the naturalization decision. Id. at
771. The Court eschewed any strict formula hinging on
probabilities, observing that it “has never been the test
of materiality that the misrepresentation or concealment
would more likely than not have produced an erroneous
decision, or even that it would more likely than not have
triggered an investigation.” Id. Instead, a statement is
material as long as it is germane to the decisional process,
as long as it has a “natural tendency to influence” a
reviewing officer’s actions.
  It is tempting to end the analysis there (and hold
Latchin’s § 1425(a) conviction sufficient because it passes
the Kungys test for materiality), but that would be a
mistake. We must also consider Kungys’s discussion of
what must be proven beyond materiality to establish
that citizenship was procured through misrepresentation.3
  Kungys is not a clean opinion. It is maddeningly frac-
tured. Here is how the Supreme Court Reporter explained
who was on what side:


3
  We acknowledge that Kungys dealt with a different statute, a
civil statute, 8 U.S.C. § 1451(a). However, the parties suggest
that distinction is trivial, and we agree; the civil and criminal
statutes both require a material misrepresentation and pro-
curement of citizenship.
8                                     Nos. 07-4009 & 08-1085

      Scalia, J., announced the judgment of the Court and
    delivered the opinion of the Court with respect to Parts
    I, II-A, and III-A, in which Rehnquist, C.J., and
    Brennan, White, and O’Connor, JJ., joined, and an
    opinion with respect to Parts II-B and III-B, in which
    Rehnquist, C.J., and Brennan and (as to Part III-B only)
    O’Connor, JJ., joined. Brennan, J., filed a concurring
    opinion, post, p. 783. Stevens, J., filed an opinion
    concurring in the judgment, in which Marshall and
    Blackmun, JJ., joined, post, p. 784. O’Connor, J., filed an
    opinion concurring in part and dissenting in part, post,
    p. 801. White, J., filed a dissenting opinion, post, p. 801.
    Kennedy, J., took no part in the consideration or
    decision of the case.
  The Kungys majority held that there are “four independ-
ent requirements” to the offense of procuring citizenship
by misrepresentation: “the naturalized citizen must
have misrepresented or concealed some fact, the mis-
representation or concealment must have been willful, the
fact must have been material, and the naturalized citizen
must have procured citizenship as a result of the mis-
representation or concealment.” Kungys, 485 U.S. at 767.
So a majority of the Justices agreed that “materiality” and
“procurement” are separate elements, and satisfaction of
one does not necessarily mean satisfaction of the other. A
majority also agreed that, at a minimum, the procurement
requirement “demands . . . that citizenship be obtained
as a result of the application process in which the mis-
representations or concealments were made.” Id. at 776.
The Court split, however, over what else procurement
means. Justice Stevens, speaking for two others, advocated
Nos. 07-4009 & 08-1085                                       9

what amounts to a “but for” test—that the government
has to establish that citizenship would not have been
conferred but for the misrepresentation. Justice Scalia,
joined by two others, rejected this construction because
it would make the materiality requirement meaningless,
“requiring, in addition to distortion of the decision [(pro-
curement)], a natural tendency to distort the decision
[(materiality)].” Id. at 776. But Justice Scalia and company
did agree that procurement requires more than just
obtaining citizenship “as a result of the application
process in which the misrepresentations or concealments
were made.” To them, proof of a material misrepresenta-
tion created a presumption that citizenship was procured
on that basis. However, the citizen could rebut that pre-
sumption by showing that she was actually eligible for
citizenship. Justice Brennan wrote a separate concurrence
joining in Justice Scalia’s opinion to make a controlling
plurality. Justice Brennan’s controlling opinion stressed
that citizenship is a “most precious right” and added a
more restrictive gloss to Justice Scalia’s view. Id. at 783
(Brennan, J., concurring). Although Justice Brennan
agreed that a material falsehood can raise a presumption
of ineligibility, he said that presumption does not arise
unless the government produces evidence sufficient to
raise a “fair inference of ineligibility.” Id. at 783 (Brennan,
J., concurring). At the end of the day, then, the gov-
ernment only wins if it shows that the citizen misrepre-
sented a material fact and it is “fair to infer that the
10                                       Nos. 07-4009 & 08-1085

citizen was actually ineligible.” 4 Id. at 784 (Brennan J.,
concurring).
  So, did the government in this case prove as much
beyond a reasonable doubt? Absolutely. It established a
material misrepresentation with Reyes’s testimony that,
had Latchin been forthcoming about his affiliation with
the IIS, she would have investigated the matter further
and passed it along to a supervisor. It matters not that
there is no firm evidence showing Latchin’s application
would have been denied absent his lie; Latchin’s misrepre-
sentation had a “natural tendency to influence” the natu-
ralization decision, and that is all that is required. Kungys,
485 U.S. at 771. And there can be no question that it was
a misrepresentation. Even if Latchin was not technically
“employed” with the IIS when he applied for citizenship,
he still had an obligation to disclose his past affiliation
with that agency, and a reasonable jury could find that
he failed to do so with the intent to deceive.
  As for procurement, the government established this
element because it was “fair to infer that [Latchin] was



4
  This reading of Kungys is consistent with our own precedent,
see Kalejs v. INS, 10 F.3d 441, 446 (7th Cir. 1993) (applying
Kungys in the civil deportation context), as well as with every
federal appellate decision applying Kungys to a prosecution
under 18 U.S.C. § 1425(a). United States v. Alferahin, 433 F.3d
1148, 1155 (9th Cir. 2006); United States v. Puerta, 982 F.2d 1297,
1301 (9th Cir. 1992); United States v. Aladekoba, 61 Fed. Appx. 27,
28 (4th Cir. Mar. 17, 2003); United States v. Agyemang, 230
F.3d 1354, *1 (4th Cir. Sept. 15, 2000); United States v. Agunbiade,
172 F.3d 864, *2-3 (4th Cir. Jan. 25, 1999).
Nos. 07-4009 & 08-1085                                      11

actually ineligible.” Id. at 784 (Brennan, J., concurring). It
defies common sense to think that the INS would have
naturalized a man who worked for years as a spy for a
hostile regime and who had at least some ongoing relation-
ship with the IIS. Even so, the government did not have
to prove ineligibility; by establishing a “fair inference of
ineligibility,” the burden shifted to Latchin to prove that
he was in fact eligible. Latchin failed to carry that burden.
   Before leaving § 1425(a) for good, we must decide
whether, despite sufficient evidence, the conviction
should be reversed for faulty jury instructions. We review
jury instructions de novo but “reverse only if the instruc-
tions, viewed as a whole, misguide the jury to the
litigant’s prejudice.” United States v. Thornton, 539 F.3d
741, 745 (7th Cir. 2008).
  We have explained that a conviction under § 1425(a)
requires proof of both materiality and procurement, as
defined by Kungys. We are not alone in this view. See,
e.g., United States v. Alferahin, 433 F.3d 1148, 1155 (9th Cir.
2006). With this in mind, we have little trouble approving
the trial court’s instructions in this case. Although the
court could have laid out the elements with more
precision, it covered all the bases. The court told the jury
that it had to find the following elements beyond a rea-
sonable doubt:
      First, that the defendant while under oath testified
    falsely before an officer of the Immigration and Natu-
    ralization Service as charged in the indictment.
      Second, that the defendant’s testimony related to
    some material matter.
12                                    Nos. 07-4009 & 08-1085

      And third, that the defendant knew the testimony
     was false.
At first blush that seems incomplete—where’s the pro-
curement requirement? Further examination shows,
however, that the court included that element within
its explanation of materiality:
        A false statement is material under Section 1425(a)
     if (1) the production of truthful information would
     have led to the discovery of facts relevant to the ap-
     plicant’s petition for naturalization, and (2) the produc-
     tion of that evidence would raise a fair inference
     that the defendant was statutorily ineligible for natu-
     ralization.
In future cases, we advise district courts to treat procure-
ment as a separate element rather than a concept sub-
sumed within the definition of materiality. Nonetheless,
the superficial error in this case did not harm Latchin. If
anything, in fact, the instructions made it more difficult
for the government. Latchin’s conviction under § 1425(a)
is sound.
  So is his conviction for acting as an unregistered foreign
agent in violation of 18 U.S.C. § 951(a). That statute
makes it a crime to “act[ ] in the United States as an agent
of a foreign government without prior notification to
the Attorney General . . . .” An “agent of a foreign gov-
ernment” is defined as “an individual who agrees to
operate within the United States subject to the direction
or control of a foreign government or official . . . .” 18
U.S.C. § 951(d). The parties agree that the statute re-
quires more than mere status as a foreign agent; it re-
Nos. 07-4009 & 08-1085                                    13

quires acts as an agent on behalf of a foreign country.
Our decision in United States v. Dumeisi, 424 F.3d 566, 581
(7th Cir. 2005), another case involving the IIS, suggests
that this concession is well-taken. Latchin’s argument that
the proof was lacking in this department, on the other
hand, is just plain wrong. There may not have been direct
evidence of acts on behalf of Iraq, but the circumstantial
evidence was strong. In addition to receiving sums of
money from IIS personnel at international locations,
Latchin placed 39 phone calls to IIS agent “Khalil”—second
in command of the sleeper program—in Baghdad
between June 2001 and May 2004. It’s hard to believe
that Latchin was just calling to chat, or that this was all
done in connection with his IIS “pension plan.” Whether
Latchin actually spied on Iraqi Christians in the United
States may be another matter altogether. But the jury did
not have to find that he did to convict him under § 951.
It was enough for the jury to conclude that Latchin took
acts of some kind on behalf of Iraq without first registering
as a foreign agent. The evidence was more than suf-
ficient to meet that end.
  Affirming these convictions makes Latchin’s final
argument—that the court erred in revoking his citizen-
ship—little more than academic, but we address it never-
theless. Latchin contends that revoking his citizenship
under the circumstances of this case amounts to a denial
of due process. This argument is at war with statutory
law and common sense. Under 8 U.S.C. § 1451(e), a con-
viction for knowingly procuring naturalization in viola-
tion of the law results in automatic denaturalization.
The district court’s revocation order was therefore
14                                   Nos. 07-4009 & 08-1085

plainly proper—in fact required—according to the immi-
gration code. Yet, Latchin submits that this result is unjust
because the jury instructions pertaining to the unlawful
procurement count “allowed conviction on the basis of
findings that would be insufficient to support a civil order
of denaturalization.” No, they did not. As we explained,
Kungys set forth the elements necessary to denaturalize
a citizen under 8 U.S.C. § 1451(a); those elements, partic-
ularly the materiality and procurement elements, translate
over to 18 U.S.C. § 1425(a); the jury was instructed on
those elements; it found each of those elements satisfied;
and its verdict was supported by sufficient evidence.
Revoking citizenship under these circumstances is con-
sistent with due process.
  Accordingly, the judgment of conviction and order
of denaturalization are A FFIRMED.




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