1 

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. 

DIVNA MASLENJAK, 

Defendant-Appellant. 

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No. 14-3864 

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. 

>
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-areasonable-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 

 10While 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 

 11The 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 

 12Maslenjak 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.