                               RECOMMENDED FOR FULL-TEXT PUBLICATION
                                   Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                            File Name: 16a0084p.06

                       UNITED STATES COURT OF APPEALS
                                        FOR THE SIXTH CIRCUIT
                                          _________________


 UNITED STATES OF AMERICA,                                      ┐
                                        Plaintiff-Appellee,     │
                                                                │
                                                                │
            v.                                                  │
                                                                 >        No. 14-3864
                                                                │
 DIVNA MASLENJAK,                                               │
                                     Defendant-Appellant.       │
                                                                ┘
                             Appeal from the United States District Court
                            for the Northern District of Ohio at Cleveland.
                        No. 1:13-cr-00126—Benita Y. Pearson, District Judge.

                                         Argued: October 8, 2015

                                    Decided and Filed: April 7, 2016

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

                                           _________________

                                                 COUNSEL

ARGUED: Patrick Haney, KIRKLAND & ELLIS, LLP, Washington, D.C., for Appellant.
Daniel R. Ranke, UNITED STATES ATTORNEY’S OFFICE, Cleveland, Ohio, for Appellee.
ON BRIEF: Gregory L. Skidmore, Jeff D. Nye, KIRKLAND & ELLIS, LLP, Washington,
D.C., for Appellant. Daniel R. Ranke, UNITED STATES ATTORNEY’S OFFICE, Cleveland,
Ohio, for Appellee.

    ANDERSON, D.J., delivered the opinion of the court in which GIBBONS and
McKEAGUE, JJ., joined. GIBBONS, J. (pg. 27), delivered a separate concurring opinion.




        *
           The Honorable S. Thomas Anderson, United States District Judge for the Western District of Tennessee,
sitting by designation.




                                                       1
No. 14-3864                          United States v. Maslenjak                      Page 2


                                       _________________

                                             OPINION
                                       _________________

        S. THOMAS ANDERSON, District Judge. Divna Maslenjak appeals her conviction for
knowingly procuring her naturalization contrary to law in violation of 18 U.S.C. § 1425(a).
Maslenjak, an ethnic Serb and native of Bosnia, came to the United States in 2000 as a refugee
fleeing the civil war in the former Yugoslavia. Maslenjak claimed she and her family feared
persecution in Bosnia because her husband had evaded conscription into the Serbian army during
the war. In fact, Maslenjak’s husband had not only been in the Serbian militia during the war but
had served as an officer in a unit implicated in war crimes. Maslenjak was granted refugee status
and ultimately obtained her naturalization.        Based on her misrepresentations during the
immigration process, a jury found Maslenjak guilty of knowingly procuring her naturalization
contrary to law in violation of 18 U.S.C. § 1425(a) and of knowingly using an unlawfully issued
certificate of naturalization in violation of 18 U.S.C. § 1423.

        On appeal, Maslenjak argues that the district court improperly instructed the jury that her
false statements need not be material in order to convict Maslenjak of procuring her
naturalization contrary to law. In the alternative, Maslenjak argues that the the district court
erroneously instructed the jury that it could also convict Maslenjak if the jury found that she
lacked good moral character. We reject both arguments and AFFIRM the judgment of the
district court.

                                                 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
No. 14-3864                        United States v. Maslenjak                       Page 3


taking place there during the war. In April 1998, Maslenjak and her family met with Monia
Rahmeyer, an officer with the United States Immigration and Naturalization Service in Belgrade,
to seek refugee status based on their fear of persecution in their home region of Bosnia. The
interview was conducted with a translator.

       No writing or recording of the interview exists to show what questions Rahmeyer asked
Maslenjak or what responses Maslenjak provided to the questions. The proof at trial showed that
Maslenjak acted as the primary applicant on her family’s asylum application. Maslenjak stated
under oath during the interview that her family feared persecution back in Bosnia owing to the
fact that her husband did not serve in the military during the war. Maslenjak explained that when
she returned to Bosnia with her children in 1992, her husband remained in Jagodina, Serbia, to
avoid conscription into the Bosnian Serb army during the Bosnian civil war. According to
Maslenjak, she and her husband had lived apart from 1992 to 1997.               Based on these
representations, Maslenjak and her family were granted refugee status in 1999 and immigrated to
the United States in September 2000 where they settled in Ohio. Maslenjak subsequently
obtained lawful permanent resident status in 2004.

       On December 5, 2006, special agents of Immigration and Customs Enforcement
questioned Maslenjak’s husband, Ratko Maslenjak, at the family home as part of an investigation
into whether Mr. Maslenjak had failed to disclose his military service in Serbia in his
immigration application. Divna Maslenjak was present in the home during the interview. Ratko
Maslenjask was subsequently charged with two counts of making a false statement on a
government document in violation of 18 U.S.C. § 1546(a). Specifically, Ratko Maslenjak was
accused of failing to report his military service in the Bratunac Brigade of the Army of the
Republic Srpska (also known as the VRS), a unit that participated in the genocide of 7,000 to
8,000 Bosnian Muslims in 1995. The government alleged that according to military records,
Ratko Maslenjak served as an officer in the Bratunac Bridgade at the time of the genocide,
though there was no evidence Mr. Maslenjak had personally participated in war crimes. Ratko
Maslenjak was arrested on the charges on December 13, 2006.

       One week after her husband’s arrest, Maslenjak filed an N-400 Application for
Naturalization on December 20, 2006. One of the questions on the application asked whether
No. 14-3864                         United States v. Maslenjak                       Page 4


she had ever “knowingly given false or misleading information to any U.S. government official
while applying for any immigration benefit or to avoid deportation, exclusion, or removal.” A
separate question asked whether Maslenjak had ever “lied to any U.S. government official to
gain entry or admission into the United States.” Maslenjak answered “no” to both questions on
her written application. Maslenjak was also interviewed under oath about the written answers on
her application and declined to make any changes to the answers when given the opportunity to
do so. On August 3, 2007, Maslenjak was naturalized as a citizen of the United States.

       On October 7, 2007, Ratko Maslenjak was found guilty in the United States District
Court for the Northern District of Ohio on both counts of making false statements on a
government document under 18 U.S.C. § 1546(a). The district court sentenced Mr. Maslenjak to
24 months probation on January 8, 2008. Because his criminal conviction made him subject to
removal, Ratko Maslenjak was taken into ICE custody on January 13, 2009. In order to avoid
removal, Ratko Maslenjak filed a petition for asylum. Divna Maslenjak filed an I-130 Petition
for Alien Relative and testified on her husband’s behalf at his April 28, 2009, asylum hearing.
During her testimony Maslenjak admitted that her husband had served in the Republic Srpska
military, that they had in fact lived together in Bosnia after 1992, and that she had lied to the
immigration officer about these facts during the refugee application interview in 1998.

       On March 5, 2013, a federal grand jury indicted Maslenjak with one count of knowingly
procuring her naturalization contrary to law in violation of 18 U.S.C. § 1425(a). The indictment
alleged that Maslenjak “made material false statements” on her Form N-400 Application for
Naturalization by answering “no” to the questions about “knowingly giv[ing] false or misleading
information to any U.S. government official while applying for any immigration benefit” and
“[lying] to any U.S. government official to gain entry or admission into the United States” and
then giving the same false answers during her interview for naturalization. The second count of
the indictment charged Maslenjak with knowingly misusing her unlawfully issued certificate of
naturalization to file a Form I-130 Petition for Alien Relative on February 6, 2009, to obtain
lawful permanent resident status for her husband, in violation of 18 U.S.C. § 1423. On April 17,
2014, a jury found Maslenjak guilty of both charges. Upon her conviction, the district court
sentenced Maslenjak to two years’ probation and granted the government’s motion to have
No. 14-3864                               United States v. Maslenjak                                Page 5


Maslenjak’s naturalization revoked under 8 U.S.C. § 1451(e).                      Maslenjak’s timely appeal
followed.

                                                        II.

        This court reviews challenges to jury instructions for abuse of discretion. United States v.
Richardson, 793 F.3d 612, 629 (6th Cir. 2015). A district court enjoys broad discretion “in
crafting jury instructions and does not abuse its discretion unless the jury charge fails accurately
to reflect the law.” United States v. Ross, 502 F.3d 521, 527 (6th Cir. 2007). “When jury
instructions are claimed to be erroneous, we review the instructions as a whole, in order to
determine whether they adequately informed the jury of the relevant considerations and provided
a basis in law for aiding the jury in reaching its decision.” United States v. Kuehne, 547 F.3d
667, 679 (6th Cir. 2008) (internal quotation marks and citation omitted). An improper jury
instruction requires reversal “only where the instructions, when viewed as a whole, are found to
be confusing, misleading, or prejudicial.” Richardson, 793 F.3d at 629 (citation omitted).

                                                        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.1
Based on the plain language of the statute as well as the overall statutory scheme for
denaturalization, we hold that proof of a material false statement is not required to sustain a
conviction under 18 U.S.C. § 1425(a).

        “The starting point for any question of statutory interpretation is the language of the
statute itself.” United States v. Coss, 677 F.3d 278, 283 (6th Cir. 2012) (internal quotation marks
and citation omitted). Section 1425(a) makes it a crime to “knowingly procure[] or attempt[] to


        1
           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, 598 F. App’x 351, 354
(6th Cir. 2015) (noting that this Circuit had not answered the question); United States v. Tongo, 16 F.3d 1223, 1994
WL 33967, at **3–4 (6th Cir. Feb. 7, 1994) (refusing to read a materiality requirement into 18 U.S.C. § 1015(a) but
apparently holding that there was sufficient evidence of materiality to sustain a conviction under 18 U.S.C.
§ 1425(a)).
No. 14-3864                          United States v. Maslenjak                        Page 6


procure, contrary to law, the naturalization of any person, or documentary or other evidence of
naturalization or of citizenship.” 18 U.S.C. § 1425(a). A plain reading of the statute suggests
that materiality is not an element of the offense. “The definition of the elements of a criminal
offense is entrusted to the legislature, particularly in the case of federal crimes, which are solely
creatures of statute.” Dixon v. United States, 548 U.S. 1, 7 (2006) (quoting Liparota v. United
States, 471 U.S. 419, 424 (1985)). Accordingly, courts “ordinarily resist reading words or
elements into a statute that do not appear on its face.” Dean v. United States, 556 U.S. 568, 572
(2009). Obviously, the term “material” is found nowhere in § 1425(a). Without statutory
support for an element of materiality, we are hard-pressed to conclude that materiality is an
element of the offense under 18 U.S.C. § 1425(a).

       As a matter of statutory interpretation, the absence of the term would normally end our
inquiry. Maslenjak apparently concedes as much and instead argues on appeal that materiality is
implied as an element of 18 U.S.C. § 1425(a). Maslenjak relies on a line of cases where other
circuits have held that proof of materiality was required to denaturalize a citizen based on a
violation of 18 U.S.C. § 1425(a). The Immigration and Naturalization Act (“INA”) sets forth at
8 U.S.C. § 1451 two alternative procedures for denaturalization, one civil and one criminal. The
civil procedure under 8 U.S.C. § 1451(a) provides for denaturalization where one procures
citizenship by concealing a material fact and expressly requires proof of materiality.          The
criminal procedure under 8 U.S.C. § 1451(e) makes denaturalization an automatic consequence
of a criminal conviction under 18 U.S.C. § 1425. The cases Maslenjak cites for support have
assumed that the required element of materiality applicable to civil denaturalization proceedings
under § 1451(a) should also apply to a criminal denaturalization under § 1451(e), and by
extension, a prosecution under 18 U.S.C. § 1425(a).

       For the reasons more fully discussed below, we find this line of cases unpersuasive.
Reading an implied element of materiality into 18 U.S.C. § 1425(a) is inconsistent with other
laws criminalizing false statements in immigration proceedings and regulating the naturalization
process. As Maslenjak’s case illustrates, 18 U.S.C. § 1425 is but one statute within a broader
statutory framework governing denaturalization. Here the district court denaturalized Maslenjak
under 8 U.S.C. § 1451(e) after she was convicted of violating 18 U.S.C. § 1425(a). And her
No. 14-3864                         United States v. Maslenjak                        Page 7


conviction under § 1425(a) required proof that Maslenjak had obtained her naturalization
“contrary to law,” meaning the government had to prove that her conduct violated at least one
other law applicable to naturalization. At trial the government argued that Maslenjak’s conduct
violated at least two other laws, a criminal statute, 18 U.S.C. § 1015(a), as well as the INA’s
prerequisites for naturalization, 8 U.S.C. § 1427(a)(3), and its definitional statute, 8 U.S.C.
§ 1101(f)(6). In other words, the district court denaturalized Maslenjak under one statute but
only after the jury had found her guilty of a crime under a second statute, which required as of
one its elements proof that Maslenjak’s act was “contrary to” at least a third statute. We find an
implied element of materiality in 18 U.S.C. § 1425(a) to be at odds with the other statutes at
issue in Maslenjak’s case.

       Furthermore, the cases on which Maslenjak relies overlook the fact that Congress has
created a two-track system for denaturalization. Denaturalization under § 1451(a) is a civil
proceeding with its own evidentiary standard and shifting burden of proof; whereas,
denaturalization under § 1451(e) is a mandatory ministerial act following a criminal conviction
under 18 U.S.C. § 1425(a). There is little justification for reading an implied element of
materiality into 18 U.S.C. § 1425 based on the fact that materiality is a required element for civil
denaturalization under 8 U.S.C. § 1451(a). We turn now to examine in more depth each of the
statutes applicable to Maslenjak’s conviction under 18 U.S.C. § 1425(a) and denaturalization
under 8 U.S.C. § 1451(e), starting with the INA itself and the denaturalization statute found at
8 U.S.C. § 1451.

                                                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,
485 U.S. 759, 772–73 (1988). The INA at § 1451(a) expressly requires proof that the citizen
procured his naturalization by concealing a “material” fact; the term “material” appears on the
face of the statute. The Supreme Court in Kungys concluded that materiality is a required
No. 14-3864                              United States v. Maslenjak                               Page 8


element of the government’s case in a denaturalization proceeding under § 1451(a). Kungys,
485 U.S. at 767–68.2

        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 has 60 days in which to file an answer.
§ 1451(b).      The government has the initial burden to adduce “clear, unequivocal, and
convincing” proof that the naturalized citizen has procured his naturalization by one of the
improper means listed in § 1451(a), including the concealment of a material fact. Fedorenko v.
United States, 449 U.S. 490, 505 (1981). “Any less exacting standard would be inconsistent with
the importance of the right that is at stake in a denaturalization proceeding.” Id. at 505–06.
Once the government has carried its burden and proven the naturalized citizen improperly
procured his naturalization, a “presumption of ineligibility” arises, “which the naturalized citizen
is then called upon to rebut.” United States v. Puerta, 982 F.2d 1297, 1303–04 (9th Cir. 1992)
(quoting Kungys, 485 U.S. at 783–84 (Brennan, J., concurring)).

        The burden-shifting of § 1451(a)’s denaturalization procedure underscores the fact that
“[a] denaturalization suit is not a criminal proceeding,” Schneiderman v. United States, 320 U.S.
118, 160 (1943), but a “civil case.” Addington v. Texas, 441 U.S. 418, 424 (1979). The
Supreme Court has described denaturalization under § 1451(a) as “a suit in equity.” Fedorenko,
449 U.S. at 516 (1981) (citations omitted). Rather than being a penal sanction, denaturalization
“imposes no punishment upon an alien who has previously procured a certificate of citizenship
by fraud or other illegal conduct.             It simply deprives him of his ill-gotten privileges.”
Johannessen v. United States, 225 U.S. 227, 242 (1912). In contrasting a civil denaturalization
proceeding under § 1451(a) with a typical criminal proceeding, the Sixth Circuit has remarked
“[c]riminal cases offer many due process protections--e.g., jury trial, indictment, beyond-a-
reasonable-doubt burden of proof, right to counsel--that civil proceedings, including



        2
          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 statement in order to get a conviction under 18
U.S.C. § 1425(a).
No. 14-3864                          United States v. Maslenjak                          Page 9


denaturalization proceedings, do not.” United States v. Mandycz, 447 F.3d 951, 962 (6th Cir.
2006).

         The denaturalization statute at § 1451(e) goes on to establish a second, alternative path to
denaturalization.    That paragraph states that “[w]hen a person shall be convicted under
[18 U.S.C. § 1425] of knowingly procuring naturalization in violation of law, the court in which
such conviction is had shall thereupon revoke, set aside, and declare void the final order
admitting such person to citizenship, and shall declare the certificate of naturalization of such
person to be canceled.” 8 U.S.C. § 1451(e). A criminal conviction under 18 U.S.C. § 1425
results in the mandatory denaturalization of the citizen, and the district court’s task in this respect
becomes purely “ministerial.” United States v. Inocencio, 328 F.3d 1207, 1209 (9th Cir. 2003);
United States v. Maduno, 40 F.3d 1212, 1217–18 (11th Cir. 1994); United States v. Djanson,
578 F. App’x 238, 241 (4th Cir. 2014). In other words, a district court lacks any discretion in the
matter, and no further process is due once the naturalized citizen is convicted of knowingly
procuring his naturalization “contrary to law.”         And as in any criminal prosecution, the
government has the burden to establish the elements of the offense beyond a reasonable doubt,
and the accused has the right to all of the constitutional due process he would otherwise not
receive as part of a civil denaturalization proceeding under § 1451(a), including the right not to
testify or put on proof at all. See Carter v. Kentucky, 450 U.S. 288, 295–300 (1981). As already
mentioned, it is this scenario that is at issue in Maslenjak’s appeal.

         Even though the district court denaturalized Maslenjak pursuant to 8 U.S.C. § 1451(e),
Maslenjak does not argue that 8 U.S.C. § 1451(e) contains an implied element of materiality,
perhaps with good reason. Unlike paragraph (a), paragraph (e) of 8 U.S.C. § 1451 never
mentions “materiality,” and this omission of the term strongly suggests that no showing of
materiality is required for denaturalization under § 1451(e).            “Where Congress includes
particular language in one section of a statute but omits it in another section of the same Act, it is
generally presumed that Congress acts intentionally and purposely in the disparate inclusion or
exclusion.” Bates v. United States, 522 U.S. 23, 29-30 (1997) (other citations omitted). As is
clear from the statutory text, 8 U.S.C. § 1451(e) simply cross-references 18 U.S.C. § 1425 and
makes denaturalization an automatic consequence of the criminal conviction.               Maslenjak’s
No. 14-3864                          United States v. Maslenjak                        Page 10


argument then is that materiality is an implied element of the offense under 18 U.S.C. § 1425(a),
which now brings us to the elements of that statute.

                                                 C.

        As previously noted, 18 U.S.C. § 1425(a) makes it a crime to “knowingly procure[] or
attempt[] to procure, contrary to law, the naturalization of any person, or documentary or other
evidence of naturalization or of citizenship.” 18 U.S.C. § 1425(a). We pause to note that the
expansive language of the statute captures much more than making false statements. Paragraph
(a) makes it illegal not only to procure or obtain naturalization but also any “documentary or
other proof of naturalization or citizenship.”        Moreover, the statute criminalizes not just
procuring these things only for one’s self but for “any person.” So a naturalized citizen might
violate § 1425(a), for example, by improperly obtaining a forged naturalization certificate for a
family member.      The naturalized citizen’s conduct of helping another person fraudulently
procure forged citizenship papers violates § 1425(a), thereby making the naturalized citizen
subject to mandatory denaturalization under 8 U.S.C. § 1451(e).           The point is 18 U.S.C.
§ 1425(a) criminalizes far more than just the conduct of which Maslenjak was convicted, making
a false statement on an application for naturalization.

        In order to prove the offense in this case, the government had to establish that
(1) Maslenjak procured her naturalization; (2) that she procured it in some manner contrary to
law; and (3) that she did so knowingly. It is undisputed in this appeal that the district court
correctly instructed the jury on the first and last elements. The real dispute concerns the district
court’s definition of “contrary to law” in its instructions to the jury and in particular its
instruction that a false statement need not be material in order for the statement to be “contrary to
law.”

        The district court explained to the jury that making a false statement under oath in an
immigration proceeding was “contrary to law” and violated 18 U.S.C. § 1425(a) if the act of
making a false statement violated the immigration laws, regardless of whether the statement was
material. The district court specified that “[o]ne of the laws which governs naturalization
prohibits an applicant from knowingly making any false statement under oath, relating to
No. 14-3864                          United States v. Maslenjak                         Page 11


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, citizenship, or registration of aliens.” 18 U.S.C. § 1015(a).

       We hold that the district court’s instruction on the “contrary to law” element was a
correct statement of the law. First, 18 U.S.C. § 1425(a)’s “contrary to law” element is broad
enough to cover the predicate violation of law at issue, namely, making false statements in an
immigration proceeding in violation of 18 U.S.C. § 1015(a). We construe the phrase “contrary
to law” to mean “contrary to all laws applicable to naturalization.” The Supreme Court has
emphasized the importance of strict compliance with the laws and requirements for
naturalization.

       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, 449 U.S. at 506 (quoting United States v. Ginsberg, 243 U.S. 472, 474–475 (1917)).
The INA spells out these requirements. It follows then that the failure to comply with the INA’s
requirements for naturalization would be “contrary to law.”

       We have also affirmed convictions under § 1425(a) where the predicate or underlying
violation of law was another criminal offense, and not just a failure to comply with the INA.
United States v. Damrah, 412 F.3d 618, 622–23 (6th Cir. 2005) (Gibbons, J.) (affirming
conviction under § 1425(a) & (b) for underlying violations of 18 U.S.C. §§ 1001, 1015(a)).
Other circuits have likewise affirmed convictions under § 1425(a) for underlying criminal
conduct. United States v. Munyenyezi, 781 F.3d 532, 536 (1st Cir.), cert. denied, No. 15-5264,
2015 WL 4456739 (Oct. 5, 2015) (affirming conviction under § 1425(a) for underlying violation
of 18 U.S.C. § 1001(a)); United States v. Mensah, 737 F.3d 789, 803 (1st Cir. 2013) (affirming
conviction under § 1425(a) for underlying violation of 18 U.S.C. § 1015(a)); accord United
States v. Alameh, 341 F.3d 167, 171–72 (2d Cir. 2003) (affirming conviction under § 1425(b) for
No. 14-3864                               United States v. Maslenjak                                 Page 12


underlying violation of 18 U.S.C. § 1546(a)).3 The phrase “contrary to law” is broad enough to
include not only violations of the INA’s administrative requirements for naturalization but also
any criminal offense against the United States pertaining to naturalization, including making
false statements.

        The Ninth Circuit in United States v. Puerta seemed to read § 1425(a)’s “contrary to law”
element to mean “contrary to the INA,” and only the INA. The Puerta court stated “Congress
has addressed the impact of immaterial false testimony only in the ‘good moral character’
provision in 8 U.S.C. § 1101(f)(6).” Puerta, 982 F.2d at 1302 (emphasis added). In point of
fact, Congress has addressed the impact of immaterial false testimony in Title 18 and made it a
criminal offense to make “any false statement under oath, in any case, proceeding, or matter
relating to, or under, or by virtue of any law of the United States relating to naturalization,
citizenship, or registration of aliens.” 18 U.S.C. § 1015(a). The Ninth Circuit apparently
understood “contrary to law” to mean only “contrary to the INA.” But if § 1425(a) reached only
violations of the INA and its administrative prerequisites for citizenship, then § 1425(a)’s
“contrary to law” element would actually mean “contrary to the INA but not 18 U.S.C. § 1015(a)
or any other federal law criminalizing specific conduct in an immigration proceeding.” We find
no principled reason to construe the phrase in this limited way.4 The most reasoned construction
of § 1425(a)’s “contrary to law” element is simply “contrary to all laws applicable to
naturalization,” and not just the INA.



        3
          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,
467 F.3d 451, 457–58 (5th Cir. 2006).
        4
          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 goods into the United 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,
535 F.3d 511 (6th Cir. 2008) (Gibbons, J.). We concluded that “contrary to law” under § 545 could include
violations of 18 U.S.C. § 2318, which makes it a crime to traffic in counterfeit labels or packaging for motion
pictures. Id. at 517–19. The case illustrates the principle that “contrary to law” should be understood to include
“contrary to” federal criminal statutes, not just procedural and administrative requirements.
No. 14-3864                               United States v. Maslenjak                                 Page 13


        Second, the district court’s instruction was an accurate statement of law because proof of
materiality is not required to establish a violation of 18 U.S.C. § 1425(a) or the underlying
violation of 18 U.S.C. § 1015(a). Having determined that § 1425(a) on its face does not require
proof of materiality, we next look to Maslenjak’s underlying conduct by which she procured her
naturalization “contrary to law,” making false statements in her immigration proceedings. Title
18 U.S.C. § 1015(a) criminalizes “any false statement under oath . . .” in an immigration
proceeding. 18 U.S.C. § 1015(a). We have construed § 1015(a) in a previous unreported
decision and concluded that materiality is not an element of the offense. Tongo, 16 F.3d 1223,
1994 WL 33967, at **3–4. Every other circuit to consider the question has reached the same
result and held that materiality is not an element of § 1015(a). United States v. Youssef, 547 F.3d
1090, 1094 (9th Cir. 2008); United States v. Abuagla, 336 F.3d 277, 278 (4th Cir. 2003); Seventh
Cir. Pattern Jury Instr. for 18 U.S.C. § 1015(a). The Ninth Circuit reasoned that § 1015(a) does
not contain a materiality requirement based on “Congress’s omission of ‘material’ from
§ 1015(a), combined with its inclusion of ‘material’ in a similar statutory provision (§ 1001(a))
. . . . ” Youssef, 547 F.3d at 1094.5 Therefore, § 1015(a) does not require proof of a false
statement of material fact.

        It follows that where as here the government satisfies the “contrary to law” element of
§ 1425(a) by proving an underlying violation of law and the underlying violation does not have
as one of its elements a material false statement, no additional proof of materiality is required to
obtain a conviction under § 1425(a). Otherwise, requiring proof of materiality simply as an
element of § 1425(a) would lead to incongruous legal outcomes. For example, a person could
violate 18 U.S.C. § 1015(a) by making “any [immaterial] false statement” on an application for
naturalization but not be guilty of procuring his naturalization “contrary to law” in violation of
18 U.S.C. § 1425(a), unless the government could also show that the false statement was
material. This result also alters the plain meaning of “contrary to law” to “contrary to the laws
applicable to naturalization except 18 U.S.C. § 1015(a).” We find no warrant for such a cramped
reading of the phrase “contrary to law.”
        5
           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).
No. 14-3864                                 United States v. Maslenjak                                  Page 14


         Of course, the predicate act or conduct matters in a prosecution under § 1425(a). Where
the government establishes the “contrary to law” element of § 1425(a) by proving an underlying
criminal act and the criminal act has as one of its elements a material false statement, proof of
materiality should arguably be required to obtain a conviction under § 1425(a). Our recent case
of United States v. Shordja, 598 F. App’x 351 (6th Cir. 2015) illustrates this proposition. Like
Maslenjak, the defendant in Shordja was charged with procuring his naturalization in violation of
18 U.S.C. § 1425(a). The defendant provided the same false answers to the same questions on
the same application for naturalization. Shordja, 598 F. App’x at 351–52. But the government
in Shordja conceded that proof of materiality was a required element of the offense under
§ 1425(a), a position seemingly inconsistent with its stance in this appeal. Id. at 354 (“Although
we have not yet addressed the question of whether to recognize a materiality requirement in
§ 1425(a), the Government concedes that the statutory provision contains a materiality
element.”).6

         However, unlike Maslenjak, the defendant in Shordja was also charged with one count of
making false statements to a government official in violation of 18 U.S.C. § 1001(a)(2). See also
Latchin, 554 F.3d at 712. In other words, the government’s theory of the case was that the
defendant procured his naturalization “contrary to law” by violating the federal perjury statute,
which has as one of its elements proof of materiality. 18 U.S.C. § 1001(a)(2) (“[W]hoever, in
any matter within the jurisdiction of the executive, legislative, or judicial branch of the
Government of the United States, knowingly and willfully makes any materially false, fictitious,
or fraudulent statement or representation . . . shall be [punished].”); United States v. Gatewood,
173 F.3d 983, 986 (6th Cir. 1999) (“The elements required to establish a violation of 18 U.S.C.
§ 1001 are . . . . that the false statement was material.”). Where as in Shorjda a defendant is
charged under 18 U.S.C. § 1425(a) with knowingly procuring naturalization contrary to law and
the predicate violation of law is perjury under § 1001(a), it stands to reason that proof of
materiality should be required to prove that the defendant procured his naturalization “contrary
to law.”

         6
          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, 598 F. App’x at 354-55.
No. 14-3864                                United States v. Maslenjak                                 Page 15


         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
in violation of 18 U.S.C. § 1015(a), not by committing perjury in violation of § 1001(a).
A material false statement is not an element of the crime under § 1015(a). Therefore, we
conclude that materiality is not an implied element of 18 U.S.C. § 1425(a) where the underlying
“contrary to the law” conduct is making a false statement in violation of 18 U.S.C. § 1015(a).

         We recognize that Maslenjak’s position finds support in a number of other circuit
decisions holding that materiality is an implied element of 18 U.S.C. § 1425(a). By and large,
we find these decisions unpersuasive. The leading case supporting Maslenjak’s position is
United States v. Puerta where the Ninth Circuit read an implied materiality requirement into
§ 1425(a). Puerta, 982 F.2d at 1301. The defendant in Puerta made false statements on his
application for naturalization where he did not answer a question about whether he had ever used
an alias (he had) and answered that he had not been absent from the United States since he
entered the country for permanent residence (he was). Id. at 1298–99. The defendant was
charged under 18 U.S.C. § 1425(a), and following a bench trial, the district court found him
guilty of procuring his naturalization contrary to law and proceeded to denaturalize him pursuant
to 8 U.S.C. § 1451(e). Id. at 1299–1300.

         The Ninth Circuit reversed, holding that the government had to prove that the defendant’s
statements were material. The Puerta court based its holding on two factors: (1) proof of
materiality was required in a civil denaturalization proceeding under 8 U.S.C. § 1451(a); and
(2) the “gravity of the consequences” of mandatory denaturalization justified a showing of
materiality under 18 U.S.C. § 1425(a). Id. at 1301 (citation omitted). Notably, the parties in
Puerta agreed that the materiality requirement in the civil denaturalization proceeding implied
materiality as an element of 18 U.S.C. § 1425(a) as well. Id.7 As a result, the Ninth Circuit did
not apply the typical rules of statutory construction. The Ninth Circuit ultimately concluded that


         7
          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.
No. 14-3864                              United States v. Maslenjak                              Page 16


“Puerta’s false statements were not material, and therefore may not form the basis of a criminal
conviction under § 1425.” Id. at 1304.

        Other circuits have followed the Ninth Circuit’s decision in Puerta but without engaging
in their own analysis of the statutory language. The First Circuit has assumed like the Ninth
Circuit that materiality is an element of 18 U.S.C. § 1425(a) because it is an element of civil
denaturalization under 8 U.S.C. § 1451(a). Mensah, 737 F.3d at 808–09; Munyenyezi, 781 F.3d
at 536. The Seventh Circuit adopted the materiality element, at least in part, because, just as in
Puerta, the parties to the case agreed that it was an element of 18 U.S.C. § 1425(a). United
States v. Latchin, 554 F.3d 709, 712, 713 n.3 (7th Cir. 2009).8 And the Fourth Circuit has simply
followed Puerta without any supporting reasoning of its own. United States v. Aladekoba, 61 F.
App’x 27, 28 (4th Cir. 2003); United States v. Agyemang, 230 F.3d 1354, 2000 WL 1335286,
*1 (4th Cir. Sept. 15, 2000); United States v. Agunbiade, 172 F.3d 864, 1999 WL 26937, at *2
(4th Cir. Jan. 25, 1999).

        We find that Puerta’s approach to materiality suffers from a number of problems. First
and foremost, as a matter of statutory construction, 18 U.S.C. § 1425(a) does not suggest that
materiality is an element of the offense. The term “material” does not appear in 18 U.S.C.
§ 1425(a) nor, for that matter, in 8 U.S.C. § 1451(e). This is not surprising because § 1425(a)
criminalizes procuring citizenship or naturalization in any way that is “contrary to law,” not just
by making false statements. In fact, 18 U.S.C. § 1425(a) reaches far more conduct than making
false statements or even procuring one’s own citizenship in some way contrary to law. The
statute can be properly read to criminalize the procurement of any proof of citizenship or
document related to naturalization or citizenship for “any person,” not just one’s own self. The
Ninth Circuit’s conclusion that § 1425(a) contains an implied element of materiality then lacks
any support in what is already the broad and plain language of the statute.

        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.

        8
           The Seventh Circuit also analyzed the false statements at issue in Latchin as violations of 18 U.S.C.
§ 1001(a), the federal perjury statute. Latchin, 554 F.3d at 712. For the reasons already explained above, the
distinction is important because 18 U.S.C. § 1001(a) expressly requires proof of materiality as an element of the
offense. See 18 U.S.C. § 1001(a).
No. 14-3864                                United States v. Maslenjak                                 Page 17


It is well settled in the Ninth Circuit (and in other circuits following the Ninth’s holding in
Puerta) that proof of materiality is not a required element of 18 U.S.C. § 1015(a). Youssef,
547 F.3d at 1094; see also Abuagla, 336 F.3d at 278; Seventh Cir. Pattern Jury Instr. for
18 U.S.C. § 1015(a). Nor is proof of materiality required in other sections of the INA addressing
false testimony. The INA at 8 U.S.C. § 1427(a)(3) makes “good moral character” a condition
precedent to naturalization. 8 U.S.C. § 1427(a)(3). And 8 U.S.C. § 1101(f)(6) precludes a
finding of “good moral character” for any naturalization applicant who “has given false
testimony for the purpose of obtaining any benefit” under the INA. 8 U.S.C. § 1101(f)(6).9 The
Supreme Court in Kungys concluded that § 1101(f)(6) does not contain a materiality
requirement. Kungys, 485 U.S. at 779–80 (holding that 8 U.S.C. § 1101(f)(6) does not contain a
materiality requirement for false testimony).               Reading an implied materiality element into
§ 1425(a) would mean then that a defendant could give immaterial false testimony for the
purpose of obtaining an immigration benefit, thereby failing to meet the requirements for
naturalization under 8 U.S.C. § 1427(a)(3) and 8 U.S.C. § 1101(f)(6) but still not be guilty of
knowingly procuring his citizenship “contrary to law” in violation of 18 U.S.C. § 1425(a).
Requiring proof of materiality under 18 U.S.C. § 1425(a) is incompatible with these other federal
laws applicable to false statements in immigration proceedings.

         As Puerta and its progeny highlight, the United States has taken a contrary position on
the materiality issue in different cases before different courts, including this one, though we have
noted why Shordja is distinguishable in this regard. While the government could not account for
these inconsistencies at oral argument, “[t]here is, of course, no rule of law to the effect that the
Government must be consistent in its stance in litigation over the years.” Barrett v. United
States, 423 U.S. 212, 222 n.6 (1976) (citation omitted); see also 13 Charles Alan Wright
& Arthur R. Miller, Federal Practice & Procedure § 3530 (3d ed.) (“Just as courts are not



         9
          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.
No. 14-3864                               United States v. Maslenjak                               Page 18


bound, so also is the government not bound. The fact that it has conceded a point in one case
does not preclude it, without more, from changing its position in a later case.”).

        Still, it is one thing to take contrary positions in different cases “over the years.” It is
more problematic that the government has taken inconsistent positions on the materiality issue at
key points in the case now before us. The government sought an indictment charging Maslenjak
with making material false statements and even adduced proof at trial relevant to the materiality
element only to argue at the charge conference and now on appeal that proof of materiality is not
required.10 The government’s prevarication notwithstanding, our task is to determine whether
the district court properly charged the jury on the elements of the offense, a task which begins
and ends with a proper construction of the relevant statutes.                  Therefore, the government’s
inconsistency does not affect our analysis of the plain language of 18 U.S.C. § 1425(a) or any of
the other statutes implicating Maslenjak’s denaturalization.

        The only compelling reason left to adopt the Ninth Circuit’s approach to materiality in
Puerta is the equity of mandatory denaturalization on anything less than proof of a materially
false statement. As Maslenjak asserted at oral argument, denaturalization is a “unique” and
“severe” sanction amounting to “banishment,” and so the same evidentiary standard should apply
whether the government seeks denaturalization in a civil proceeding or a criminal proceeding.
Whatever appeal this rationale might have, the argument invites us to overlook the plain text of
18 U.S.C. § 1425(a) and disregard the overall statutory scheme Congress has enacted for
denaturalization under the INA.

        Construing 8 U.S.C. § 1451 and 18 U.S.C. § 1425 together, Congress has created two
alternative approaches to denaturalization, one civil and one criminal. The denaturalization
procedure established under 8 U.S.C. § 1451(a) is civil and equitable in nature, initiated simply
by filing a petition in the district court where the citizen resides, and carries a “clear,
unequivocal, convincing” standard of proof. Section 1451(e) creates a second statutory path to

        10
           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, 467 F.3d 951, 962 (6th Cir. 2006) (holding that a constructive amendment of the indictment
occurs where the defendant can show “a combination of evidence and jury instructions that effectively alters the
terms of the indictment”). As a result, we need not consider this issue further.
No. 14-3864                               United States v. Maslenjak                                 Page 19


denaturalization which is criminal in nature, because § 1451(e) makes denaturalization
mandatory where the citizen is found guilty of violating 18 U.S.C. § 1425. Obviously, the
alternative procedure requires the government to seek an indictment and establish probable
cause, afford the citizen all of the constitutional due process rights owed whenever a person is
accused of a criminal act, and meet a higher burden of proof (beyond a reasonable doubt).11 See
Mandycz, 447 F.3d at 962 (“Criminal cases offer many due process protections-e.g., jury trial,
indictment, beyond-a-reasonable-doubt burden of proof, right to counsel-that civil proceedings,
including denaturalization proceedings, do not.”).

        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




        11
           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 convincing”
burden as “substantially identical with that required in criminal cases—proof beyond a reasonable doubt.” Klapprott
v. United States, 335 U.S. 601, 612 (1949). Somewhat more recently, the Supreme Court described the “clear,
unequivocal, and convincing” burden as an “intermediate standard” designed to “protect particularly important
individual interests in various civil cases” including civil denaturalization proceedings under U.S.C. § 1451(a).
Addington v. Texas, 441 U.S. 418, 424–25 (1979). The Addington court went on to remark in dicta that the word
“unequivocal” “taken by itself means proof that admits of no doubt, a burden approximating, if not exceeding, that
used in criminal cases.” Id. at 432. Later still, the Supreme Court considered the standard of proof in a deportation
case and noted that “[t]he BIA for its part has required only ‘clear, unequivocal and convincing’ evidence of the
respondent’s deportability, not proof beyond a reasonable doubt.” I.N.S. v. Lopez-Mendoza, 468 U.S. 1032, 1039
(1984). This single comment suggests that the clear, unequivocal, and convincing burden of proof is an elevated
standard but still just short of or only “approximating” proof beyond a reasonable doubt. Otherwise, we have
summarized the “clear, unequivocal, and convincing” standard as follows: “So, the omission of ‘unequivocal’ makes
a difference. The ‘clear, unequivocal, and convincing standard’ is a more demanding degree of proof than the ‘clear
and convincing’ standard.” Ward v. Holder, 733 F.3d 601, 605 (6th Cir. 2013).
No. 14-3864                         United States v. Maslenjak                       Page 20


proof, the additional safeguards for the naturalized citizen’s constitutional rights, and the broad
sweep of § 1425 itself.

       So in a criminal prosecution under § 1425, the Constitution itself cures any concerns
about the “gravity of the consequences” of mandatory denaturalization without requiring proof of
materiality. Puerta at 1301. And if it were otherwise and materiality was a required element of
both civil and criminal denaturalization proceedings, the government would have little incentive
to ever pursue the denaturalization of a naturalized citizen for making false statements through a
criminal indictment under 18 U.S.C. § 1425. The government could achieve the same result,
denaturalization, by proving the same materiality element but in a civil proceeding under a lesser
standard of proof and with less constitutional due process. Thus, reading an implied element of
materiality into 18 U.S.C. § 1425(a) would yield yet another unintended, anomalous result.
Despite the equities supporting Maslenjak’s position, “[w]e are not at liberty to rewrite the
statute to reflect a meaning we deem more desirable” but “[i]nstead, we must give effect to the
text Congress enacted.” Ali v. Fed. Bureau of Prisons, 552 U.S. 214, 228 (2008). In the final
analysis, we find the arguments and reasoning supporting an implied element of materiality
under 18 U.S.C. § 1425 to be lacking.

       Having established that materiality is not required to prove a violation of 18 U.S.C.
§ 1425(a) or 18 U.S.C. § 1015(a), we hold that the district court’s instruction was a correct
statement of the law. With this holding, we need not reach the issue of whether the government
proved Maslenjak’s false statements to be material.

                                               III.

       In her second claim on appeal, Maslenjak argues that the district court erroneously
instructed the jury that it could also convict her under 18 U.S.C. § 1425(a) if it found that
Maslenjak did not possess good moral character. As already mentioned, 8 U.S.C. § 1427(a)(3)
establishes “good moral character” as a requirement for naturalization. 8 U.S.C. § 1427(a)(3).
Although the INA does not define what “good moral character” is, the INA does define what it is
not. Under 8 U.S.C. § 1101(f)(6), no one can be found to be a person of “good moral character”
if the person “has given false testimony for the purpose of obtaining any benefit” under the INA.
No. 14-3864                         United States v. Maslenjak                        Page 21


8 U.S.C. § 1101(f)(6). In its instructions to the jury defining the “contrary to law” element of the
offense under 18 U.S.C. § 1425(a), the district court stated that Maslenjak did not satisfy the
“good moral character” requirement of 8 U.S.C. § 1427(a) if the government could show that she
had given “false testimony for the purpose of obtaining any immigration benefit.” ECF 62, Jury
Instr., Page ID 1121.

       On appeal, Maslenjak does not argue that false testimony to obtain an immigration
benefit cannot satisfy § 1425(a)’s “contrary to law” element. Several circuits have affirmed
denaturalization based on a naturalized citizen’s false testimony and violation of the good moral
character requirements of 8 U.S.C. § 1101(f)(6).       Munyenyezi, 781 F.3d at 537 (affirming
conviction under § 1425(a) and subsequent denaturalization under 8 U.S.C. § 1451(e) based on
failure to meet “good moral character”); United States v. Rogers, 104 F.3d 355, 1996 WL
685759, at * 1 (2d Cir. Nov. 29, 1996) (same); see also United States v. Suarez, 664 F.3d 655,
658 (7th Cir. 2011) (affirming civil denaturalization under 8 U.S.C. § 1451(a) for underlying
violation of 8 U.S.C. § 1101(f)(3) & (8)); United States v. Dang, 488 F.3d 1135, 1139–40 (9th
Cir. 2007) (affirming civil denaturalization under 8 U.S.C. § 1451(a) for underlying violation of
8 U.S.C. § 1101(f)(6)); United States v. Jean-Baptiste, 395 F.3d 1190, 1193–94 (11th Cir. 2005)
(affirming civil denaturalization under 8 U.S.C. § 1451(a) for underlying violation of 8 U.S.C.
§ 1101(f)(3) & (8)); United States v. Sokolov, 814 F.2d 864, 873–74 (2d Cir. 1987 (affirming
civil denaturalization under 8 U.S.C. § 1451(a) for underlying violation of 8 U.S.C.
§ 1101(f)(6)). Instead Maslenjak argues that convicting her for lack of good moral character is
unconstitutional. We find both of her constitutional arguments to be without merit.

                                                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, 370 U.S. 660, 667 (1962) (striking down a criminal law
against being drug addict); but see Powell v. State of Tex., 392 U.S. 514, 533 (1968) (upholding a
criminal law against public drunkenness). In other words, the law can only punish “doing” (the
actus reus) and not merely “being” (what could be called the status reus).             Maslenjak’s
No. 14-3864                         United States v. Maslenjak                        Page 22


conviction does not run afoul of this principle. Maslenjak was found guilty of knowingly
procuring her naturalization contrary to law, and her guilty act was illegally procuring or
obtaining her naturalization. Section 1425(a) criminalizes conduct and not status by punishing
the act of knowingly procuring naturalization in some way contrary to the laws applicable to
naturalization.   Section 1425(a) does not make it a crime to lack good moral character.
Maslenjak’s first constitutional challenge is not convincing.

       It is true that the government’s theory of the case was based on Maslenjak’s ineligibility
for naturalization.   The United States presented proof at trial and argued to the jury that
Maslenjak was not eligible for naturalization because of her false testimony about the answers on
her N-400 Application for Naturalization. Under 8 U.S.C. § 1101(f)(6), Maslenjak’s false
testimony for the purpose of obtaining a benefit disqualified her as a candidate for naturalization.
And it is well-established that “[c]itizenship is illegally procured any time the applicant has
failed to comply with any of the congressionally imposed prerequisites to the acquisition of
citizenship.” United States v. Sprogis, 763 F.2d 115, 117 n.2 (2d Cir. 1985) (quoting Fedorenko,
449 U.S. at 506)). Maslenjak was not found guilty of a particular status, i.e. a lack of good moral
character, but guilty of culpable conduct, i.e. procuring her naturalization with the knowledge
that she was ineligible because she had given false testimony.

       Maslenjak again relies on the Ninth Circuit’s decision in Puerta for support. The Ninth
Circuit held there that “simply being a person who cannot establish [good moral character] in
court is not a crime.” Puerta, 982 F.2d at 1302. The Ninth Circuit’s reasoning on this point is
not persuasive. In a prosecution under 18 U.S.C. § 1425(a), the defendant does not have the
burden to establish anything at all, including her good moral character. It is the government’s
burden to prove beyond a reasonable doubt that the defendant knowingly procured her
naturalization in some way contrary to law, all in violation of a criminal statute, 18 U.S.C.
§ 1425(a). Although the INA at 8 U.S.C. § 1101(f)(6) defines what good moral character is not,
the INA does not make it crime to lack good moral character. The Ninth Circuit also concluded
that Congress had only addressed false testimony in an immigration proceeding at 8 U.S.C.
§ 1101(f)(6). But, as we have already noted, the Ninth Circuit’s observation is not an accurate
statement of law. Congress has actually made it a crime to make “any false statement under
No. 14-3864                               United States v. Maslenjak                               Page 23


oath” in a matter related to naturalization pursuant to 18 U.S.C. § 1015(a). As such, there is no
support for Maslenjak’s claim that 8 U.S.C. § 1101(f)(6) somehow creates a status-based crime
for lacking good moral character.

                                                        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, 677 F.3d 278, 289 (6th Cir. 2012) (quoting
Gonzales v. Carhart, 550 U.S. 124, 148–49 (2007) (other quotations omitted)). “What renders a
statute vague is not the possibility that it will sometimes be difficult to determine whether the
incriminating fact it establishes has been proved; but rather the indeterminacy of precisely what
that fact is.” United States v. Williams, 553 U.S. 285, 306 (2008). A challenge based on a
statute’s purported vagueness must be considered on “an as-applied basis” so long as the statute
does not involve First Amendment rights. Johnson v. United States, 135 S. Ct. 2551, 2580,
(2015) (Thomas, J., concurring) (quoting United States v. Mazurie, 419 U.S. 544, 550 (1975)).
Where as here a defendant challenges a statute for vagueness under the Due Process Clause, the
challenge “rest[s] on the lack of notice, and hence may be overcome in any specific case where
reasonable persons would know that their conduct is at risk.” Maynard v. Cartwright, 486 U.S.
356, 361 (1988). “Thus, in a due process vagueness case, we will hold that a law is facially
invalid only if the enactment is impermissibly vague in all of its applications.” Johnson v.
United States, 135 S. Ct. at 2580 (quoting Hoffman Estates v. Flipside, Hoffman Estates, Inc.,
455 U.S. 489, 494–95 (1982)).

        We hold that 8 U.S.C. § 1101(f)(6) is not unconstitutionally vague as applied to
Maslenjak.12 That section specifies that “[n]o person shall be regarded as, or found to be, a

        12
           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 U.S.C.§ 1101(f)(9).
No. 14-3864                                United States v. Maslenjak                                  Page 24


person of good moral character who, during the period for which good moral character is
required to be established, is, or was one who has given false testimony for the purpose of
obtaining any benefits under this chapter.” 8 U.S.C.A. § 1101(f)(6). The statute defines a series
of factors which will preclude a finding of good moral character. The particular factor challenged
by Maslenjak defines conduct, giving false testimony, and calls for the determination of “clear
questions of fact” susceptible to “a true-or-false determination, not a subjective judgment such as
whether conduct is ‘annoying’ or ‘indecent.’” Williams, 553 U.S. at 306; see also Dang,
488 F.3d at 1141 (holding that 8 U.S.C. § 1101(f)(9), the good moral character catch-all
provision and its implementing regulation was not unconstitutionally vague as applied in that
case). Therefore, we reject Maslenjak’s vagueness challenge.

                                                          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 an immigration benefit and how her false testimony meant she did not meet the INA’s
good moral character requirement. Specifically, Maslenjak argues that the district court failed to
explain that “testimony” under § 1101(f)(6) had to be an oral statement or that Maslenjak had to
give false testimony with the specific intent to obtain an immigration benefit. The Supreme
Court in Kungys carefully construed § 1101(f)(6) and concluded that the false testimony
described in the statute need not be material in order to find that a person lacked good moral
character. In explaining why its “literal reading of the statute does not produce draconian
results,” the Kungys court first noted that “‘testimony’ is limited to oral statements made under
oath” and does not include “other types of misrepresentations or concealments, such as falsified
documents or statements not made under oath.” Kungys, 485 U.S. at 780 (citations omitted).
Whether a statement or misrepresentation qualifies as “testimony” is a question of law. Id. at
782. The Supreme Court also explained that its literal reading of § 1101(f)(6) did not produce

          We need not reach this issue because the district court did not instruct on this theory, and Maslenjak has
otherwise failed to demonstrate how this paragraph was “applied” to her. Maslenjak does claim that “[n]othing in
the instructions defined ‘good moral character’ or even limited the methods by which the government could prove
that Ms. Maslenjak lacked good moral character.” Opening Br. 43. But Maslenjak’s claim is belied by what the
district court actually stated in its charge to the jury. The district court explained only one means of establishing a
lack of good moral character, and that was giving “false testimony for the purpose of obtaining any immigration
benefit.”
No. 14-3864                          United States v. Maslenjak                          Page 25


unduly harsh results because that section “applies to only those misrepresentations made with the
subjective intent of obtaining immigration benefits” and not “misrepresentations made for other
reasons, such as embarrassment, fear, or a desire for privacy, . . . .” Id. at 780. Whether the
applicant acted with the required intent is, of course, a question of fact for the jury. Id. at 782.

       We hold that the district court did not abuse its discretion because the instructions, taken
as a whole, accurately reflected the law. Ross, 502 F.3d at 527. With respect to the instructions
about the necessary intent, the jury charge clearly stated that “[g]iving false testimony for the
purpose of obtaining any immigration benefit precludes someone from being regarded as having
good moral character,” which in turn means “the applicant is not entitled to naturalization.” ECF
62, Jury Instr., Page ID 1121.       This instruction is a clear and accurate statement of law.
Therefore, no abuse of discretion occurred.

       As for the instruction about “false testimony,” the district court did not define
“testimony” to limit the term to oral statements and did not instruct the jury which of
Maslenjak’s statements constituted “testimony.” More fundamentally, the district court did not
recognize that the issue of whether any of Maslenjak’s statements even met the legal definition
of “testimony” under 8 U.S.C. § 1101(f)(6) was a question of law. The instruction as given did
not address any of these aspects of the “false testimony” element, as the Supreme Court
described it in Kungys. Nevertheless, when viewed as a whole, it cannot be said that the jury
instructions were “confusing, misleading, or prejudicial.” Richardson, 793 F.3d at 629.

       And even if the district court’s instruction about “testimony” was erroneous, the error
was harmless. The harmless-error standard applies “to cases involving improper instructions on a
single element of the offense.” Neder v. United States, 527 U.S. 1, 9 (1999); Richardson,
793 F.3d 612, 631 (“[A] jury instruction that misdescribes or omits an element of an offense is
subject to harmless error review.”) (citation omitted). Any error regarding the jury instruction on
the single element of “false testimony” was harmless in this case. The record is replete with oral
statements made by Maslenjak under oath during her interviews with immigration officials,
which meet the legal definition of “testimony.” Perhaps more importantly, the evidence the jury
heard does not include any other proof “that could rationally lead to a contrary finding with
No. 14-3864                         United States v. Maslenjak                      Page 26


respect to the omitted element.” Richardson, 793 F.3d at 632 (quoting Neder, 527 U.S. at 19).
Therefore, any error in the jury instructions was harmless.

                                               IV.

       For the reasons stated here, we AFFIRM the judgment of the district court.
No. 14-3864                          United States v. Maslenjak                         Page 27


                                        _________________

                                        CONCURRENCE
                                        _________________

       JULIA SMITH GIBBONS, concurring.               I concur with some reluctance in the lead
opinion’s carefully-reasoned analysis. Initially, I was not inclined to differ from our sister
circuits’ interpretation of 18 U.S.C. §1425(a), but this analysis has persuaded me that the view
most faithful to the statute is that materiality is not an element of the §1425(a) offense.

       I am uncertain what goal Congress intended to further by omitting materiality from the
elements of §1425(a). I have located no other federal criminal statute that punishes a defendant
for an immaterial false statement. Nor have I located any analogous context in which the
elements of a crime are less onerous than the elements of the related civil penalty proceeding.

       Finally, I echo a point made in the lead opinion but put it more bluntly.                  The
government’s inconsistency in this case and on this issue is puzzling and indeed inappropriate.
This is particularly so because the government, in response to questioning at oral argument, was
unable to articulate any interest of the United States in prosecuting statements that are
immaterial.

       For all these reasons, our result here is troublesome. Yet we are not free to select our
own notion of the best result in a case but instead are guided by what the law requires. That
principle trumps any reluctance about joining the lead opinion.
