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

_________________

U

NITED S TATES OF A MERICA , Plaintiff-Appellee ,

v

.

D IVNA M ASLENJAK , Defendant-Appellant

. ┐ │ │ │ │ │ │ │ ┘ No. 14-3864

Appeal from the United St ates 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 Circu it 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, UNI TED 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 Dist rict 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. Di vna Maslenjak appeals her conviction for knowingly procuring her naturaliza tion contrary to law in viol ation of 18 U.S.C. § 1425(a). Maslenjak, an ethnic Serb and na tive of Bosnia, came to the United States in 2000 as a refugee fleeing the civil war in the form er Yugoslavia. Maslenjak clai med 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 on ly 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 gu ilty of knowingly procur ing 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 alterna tive, Maslenjak argues that the the district court erroneously instructed th e jury that it could al so 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 toda y 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 Serb s 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 Bosniasoon thereafter. As the break -up of the former Yugoslavia
accelerated in the 1990s and conditions in Bosniadeteriorated, the United States dispatched immigration officials to Belgrade to assist re fugees fleeing Bosnia and the ethnic cleansingNo. 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 Immi gration and Naturalizati on 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 exis ts 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 a pplicant on her family’s asylum application. Maslenjak stated under oath during the interview that her family f eared 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 husba nd had lived apart from 1992 to 1997. Based on these representations, Maslenjak and he r family were granted refugee status in 1999 and immigrated to the United States in September 2000 where theysettled in Ohio. Ma slenjak subsequently obtained lawful permanent resi dent 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 disc lose 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 pers onally participated in war crimes. Ratko Maslenjak was arrested on th e charges on December 13, 2006.

One week after her husband’s arrest, Ma slenjak filed an N-400 Application for Naturalization on December 20, 2006. One of th e questions on the app lication asked whetherNo. 14-3864 United States v. Maslenjak Page 4

she had ever “knowingly given false or misleadi ng information to any U.S. government official while applying for any immigration benefit or to avoid deportation, excl usion, or removal.” A separate question asked whether Maslenjak had ev er “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 change s to the answers when given the opportunity to do so. On August 3, 2007, Maslenjak was natura lized 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). Th e district court sentenced Mr. Maslenjak to 24 months probation on January 8, 2008. Because hi s criminal conviction made him subject to removal, Ratko Maslenjak was taken into IC E custody on January 13, 2009. In order to avoid removal, Ratko Maslenjak filed a petition for as ylum. 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 duri ng the refugee applica tion interview in 1998.
On March 5, 2013, a federal grand jury indict ed Maslenjak with one count of knowingly procuring her naturalization contraryto 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 “knowingl y giv[ing] false or misleading information to any U.S. government official wh ile applying for any immi gration benefit” and “[lying] to any U.S. government official to ga in entry or admission into the United States” and then giving the same false answers during her in terview for naturalization. The second count of the indictment charged Maslenja k with knowingly misusing her unlaw fully 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 charge s. Upon her conviction, the district court sentenced Maslenjak to two ye ars’ probation and granted the government’s motion to haveNo. 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 a buse of discretion. United States v.
Richardson , 793 F.3d 612, 629 (6th Cir. 2015). A distri ct 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 revi ew the instructions as a whole, in order to determine whether they adequately informed the ju ry of the relevant cons iderations 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 mark s and citation omitted). An improper jury instruction requires reversal “onl y where the instructions, when vi ewed as a whole, are found to be confusing, misleadin g, 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 mandato ry 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 stat utory 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 cr ime 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 of fense 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 th e statute suggests that materiality is not an elemen t of the offense. “The definiti on 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, cour ts “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 th at 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 app eal 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 Naturalizat ion Act (“INA”) sets forth at 8 U.S.C. § 1451 two alternative procedures for de naturalization, one civil and one criminal. The civil procedure under 8 U.S.C. § 1451(a) provid es for denaturalizatio n where one procures citizenship by concealing a materi al fact and expressly require s proof of materiality. The criminal procedure under 8 U.S.C. § 1451(e) make s 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 dena turalization proceedings under § 1451(a) should also apply to a criminal denatura lization under § 1451(e), and by extension, a prosecution unde r 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 in consistent with other laws criminalizing false statements in immigra tion proceedings and regulating the naturalization process. As Maslenjak’s case i llustrates, 18 U.S.C. § 1425 is but one statute within a broader statutory framework governing dena turalization. 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 herNo. 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 naturaliz ation. At trial the government argued that Maslenjak’s conduct violated at least two other laws, a criminal st atute, 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 denaturalize d Maslenjak under one statute but only after the jury had found her guilty of a crim e under a second statute, which required as of one its elements proof that Maslenjak’s act was “cont rary 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. De naturalization under § 1451(a) is a civil proceeding with its own evidentiary standa rd and shifting burden of proof; whereas, denaturalization under § 1451(e) is a mandatory mi nisterial act following a criminal conviction under 18 U.S.C. § 1425(a). There is little justification for r eading 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 its elf and the denaturalization statute found at 8 U.S.C. § 1451.

B.
The INA creates what are essentially two alte rnative paths for dena turalization. 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 misr epresentation.” 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 “mater ial” fact; the term “material” appears on the
face of the statute. The Supreme Court in Kungys concluded that materiality is a requiredNo. 14-3864 United States v. Maslenjak Page 8

element of the government’s case in a de naturalization proceeding under § 1451(a). Kungys , 485 U.S. at 767–68. 2

Under § 1451(a), the government institute s a denaturalization proceeding by filing a petition and “affidavit showing good cause” in the dist rict where the naturaliz ed 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 “cl ear, 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 st andard 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 a nd proven the naturalized citizen improperly procured his naturalization, a “pre sumption of ineligibil ity” 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 dena turalization 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 denaturalizati on 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 previ ously procured a certif icate 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 cont rasting a civil denaturalization proceeding under § 1451(a) with a typical crimin al proceeding, the Sixth Circuit has remarked “[c]riminal cases offer many due process protec tions--e.g., jury trial, indictment, beyond-areasonable-doubt burden of proof, right to counsel--that civil pr oceedings, including

2 The Supreme Court’s holding in Kungys about the definition of materiality and the question of whether the government’s proof agains t 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, 9 62 (6th Cir. 2006).

The denaturalization statute at § 1451(e) goes on to establish a second, a lternative path to denaturalization. That paragraph states that “[w]hen a person sha ll be convicted under [18 U.S.C. § 1425] of knowingly proc uring naturalization inviolation 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 decl are 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 denaturali zation of the citizen, a nd 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 crimin al prosecution, the government has the burden to establish the elem ents of the offense beyond a reasonable doubt, and the accused has the right to all of the co nstitutional due process he would otherwise not receive as part of a civil de naturalization 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 suggest s 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 intentiona lly 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 consequen ce of the criminal conviction. Maslenjak’sNo. 14-3864 United States v. Maslenjak Page 10

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

C.
As previously noted, 18 U.S.C. § 1425(a) ma kes 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. § 1 425(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 fo r “any person.” So a na turalized citizen might violate § 1425(a), for example, by improperly obtai ning a forged naturalization certificate for a family member. The naturalized citizen’s c onduct of helping anothe r person fraudulently procure forged citizenship pape rs 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 co nduct of which Maslenja k was convicted, making a false statement on an application for naturalization.
In order to prove the offense in this cas e, the government had to establish that (1) Maslenjak procured her naturalization; (2) th at she procured it in so me manner contrary to law; and (3) that she did so knowi ngly. It is undisputed in this appeal that the district court correctly instructed the jury on the first and last elements. The real disput e concerns the district court’s definition of “contrary to law” in its in structions to the jury and in particular its
instruction that a false statement need not be materi al in order for the statement to be “contrary to
law.”
The district court explained to the jury th at making a false statement under oath in an immigration proceeding was “cont rary to law” and violated 18 U.S.C. § 1425(a) if the act of making a false statement violated the immigrati on 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 toNo. 14-3864 United States v. Maslenjak Page 11

naturalization.” The district court’s instruction in this re gard 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, ci tizenship, or registration of aliens.” 18 U.S.C. § 1015(a).

We hold that the district court’s instructi on 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 viola tion 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 citizen ship must be treated as granted upon condition that the government may challe nge 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 woul d be “contrary to law.”
We have also affirmed convictions under § 1425(a) where the pred icate 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 vi olations of 18 U.S.C. §§ 1001, 1015(a)).
Other circuits have likewise affirmed convi ctions 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 convic tion under § 1425(a) for underlying violation of 18 U.S.C. § 1001(a)); United States v. Mensah , 737 F.3d 789, 803 (1st Ci r. 2013) (affirming conviction under § 1425(a) for underlyi ng violation of 18 U.S.C. § 1015(a)); accord United
States v. Alameh , 341 F.3d 167, 171–72 (2d Cir. 2003) (affi rming conviction under § 1425(b) forNo. 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 th e INA’s administrative requiremen ts for naturalization but also any criminal offense against the United States pertaining to naturaliza tion, 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 th e 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 te stimony 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 St ates 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 “contra ry 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 “contra ry to the INA but not 18 U.S.C. § 1015(a) or any other federal law crimina lizing 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 si mply “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 Unite d 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, whic h 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 ju st procedural and administrative requirements.No. 14-3864 United States v. Maslenjak Page 13

Second, the district court’s instruction was anaccurate statement of law because proof of materiality is not required to establish a viol ation 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 unde rlying conduct by which she procured her naturalization “contrary to law,” making false stat ements 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 materialit y is not an element of the offense. Tongo , 16 F.3d 1223, 1994 WL 33967, at **3–4. Every other circuit to c onsider 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 reason ed that § 1015(a) does not contain a materiality requirement based on “Congress’s omission of ‘material’ from § 1015(a), combined with its inclusion of ‘mater ial’ in a similar statutory provision (§ 1001(a))
. . . . ” Youssef , 547 F.3d at 1094. 5 Therefore, § 1015(a) does no t 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, re quiring 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 [immater ial] false statement” on an application for naturalization but not be guilty of procuring his naturaliz ation “contrary to la w” in violation of 18 U.S.C. § 1425(a), unless the gove rnment 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 naturalizat ion 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 st atute criminalized immateri al 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 statem ents in immigration proceedings, and the district court’s instructions to the jury on the “contrary to law” element closely tracked th e language of § 1015(a).No. 14-3864 United States v. Maslenjak Page 14

Of course, the predicate act or conduct ma tters in a prosecution under § 1425(a). Where the government establishes the “contrary to la w” 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 obtai n 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 c ontains a materiality element.”)

. 6

However, unlike Maslenjak, the defendant in Shordja was also charged with one count of making false statements to a government offici al 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 fe deral perjury statute, which has as one of its elements proof of mate riality. 18 U.S.C. § 1001(a)(2) (“[W]hoever, in any matter within the jurisdiction of the executiv e, legislative, or judicial branch of the Government of the United States, knowingly and w illfully makes any materially false, fictitious, or fraudulent statement or representa tion . . . shall be [punished].”); United States v. Gatewood , 173 F.3d 983, 986 (6th Cir. 1999) (“The elements requ ired to establish a vi olation of 18 U.S.C. § 1001 are . . . . that the false statem ent 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 ju ry on materiality and that th ere 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 gove rnment’s case against Maslenja k was that she procured her naturalization “contrary to law,” in part by making false stat ements in an immigration proceeding in violation of 18 U.S.C. § 1015(a), not by co mmitting perjury in violation of § 1001(a).
A material false statement is not an elemen t 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 fi nds 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 an swer a question about whether he had ever used an alias (he had) and answered that he had notbeen absent from the United States since he entered the country for perm anent 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 gov ernment 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 denaturali zation 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 construc tion. 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 time s. 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 th e 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 pa rt, because, just as in
Puerta , the parties to the case ag reed 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 constr uction, 18 U.S.C. § 1425(a) does not suggest that materiality is an element of th e 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 ci tizenship in some way contrary to law. The statute can be properly read to criminalize th e 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 broa d and plain language of the statute.
The Ninth Circuit’s approach al so ignores the fact that othe r violations of federal law pertaining to false statements in immigration pr oceedings 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 reas ons 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 followi ng the Ninth’s holding in
Puerta ) that proof of materiality is not a required elemen t 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 w ho “has given false testimony for the purpose of obtaining any be nefit” under the INA. 8 U.S.C. § 1101(f)(6). 9 The Supreme Court in Kungys concluded that § 1101(f)(6) doe s 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 c ould 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 materi ality under 18 U.S.C. § 1425( a) is incompatible w ith 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 di fferent courts, including th is one, though we have noted why Shordja is distinguishable in th is 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 di strict court instructed the jury that “false testimony” would def eat a finding of good moral character . The instructions did not, however, address whether the false testimony had to concern a materi al 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 ch anging 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 in consistent 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 a dduced proof at trial rele vant 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 prevaricat ion notwithstanding, our task is to determine whether the district court properl y charged the jury on the elements of the offense, a task which begins and ends with a proper construction of the rele vant statutes. Therefore, the government’s inconsistency does not affect our analysis of th e plain language of 18 U.S.C. § 1425(a) or any of the other statutes implicating Ma slenjak’s denaturalization.
The only compelling reason left to adopt the Ni nth Circuit’s approachto materiality in
Puerta is the equity of mandatory denaturalizati on on anything less than pr oof of a materially false statement. As Maslenjak asserted at or al argument, denaturali zation 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 Congr ess has enacted for
denaturalization under the INA.
Construing 8 U.S.C. § 1451 and 18 U.S.C. § 1425 together, Congres s has created two alternative approaches to dena turalization, one civil and one cr iminal. The denaturalization procedure established under 8 U.S.C. § 1451(a) is civil and equitable in na ture, initiated simply by filing a petition in the district court where the citizen resides, and carries a “clear, unequivocal, convincing” standard of proof. Sec tion 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 th e 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 highe r 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-do ubt 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 re quirement of material ity under one approach but not the other is actually consis tent with a two-track statutory sc heme for denatura lization. In a civil denaturalization suit, the government canbring 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, th e 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 Suprem e Court described the “clear, unequivocal, and convincing” burden as “substantially identical with that required in criminal cases—proof be yond a reasonable doubt.” Klapprott v. United States , 335 U.S. 601, 612 (1949). Somewhat more recently, the Supr eme 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 pr oof 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, uneq uivocal, 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 c onvincing” standard as fo llows: “So, the omission of ‘unequivocal’ makes a difference. The ‘clear, unequivocal, an d 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 conse quences” of mandatory denaturalization without requiring proof of materiality. Puerta at 1301. And if it were otherwise a nd materiality was a required element of both civil and criminal denaturalization proceedi ngs, the government would have little incentive to ever pursue the denaturalizat ion of a naturalized citizen for making false statements through a criminal indictment under 18 U.S.C. § 1425. Th e government could achieve the same result, denaturalization, by proving the sa me 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 yiel d yet another unintended, anomalous result. Despite the equities supporting Maslenjak’s positi on, “[w]e are not at lib erty to rewrite the statute to reflect a meaning we deem more desirabl e” 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 vi olation 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 ne ed 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 mora l character. As already mentioned, 8 U.S.C. § 1427(a)(3) establishes “good moral ch aracter” as a requirement for natura lization. 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 bene fit” under the INA.No. 14-3864 United States v. Maslenjak Page 21

8 U.S.C. § 1101(f)(6). In its inst ructions to the jury defining the “contrary to law” element of the offense under 18 U.S.C. § 1425(a), the district c ourt 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 ob taining any immigration benefit.” ECF 62, Jury Instr., Page ID 1121.
On appeal, Maslenjak does not argue thatfalse 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 s ubsequent denaturalization unde r 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 denaturaliz ation 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 viol ation of 8 U.S.C. § 1101(f)(6)). Instead Maslenjak argues that convi cting her for lack of good moral character is
unconstitutional. We find both of her const itutional arguments to be without merit.

A.
First, Maslenjak contends that her convi ction amounts to an unc onstitutional criminal punishment based on her status. The Supreme C ourt has held that a state law criminalizing
status and not conduct violat es the Eighth Amendment’s pr ohibition on cruel and unusual punishment. Robinson v. California , 370 U.S. 660, 667 (1962) (strik ing 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 othe r words, the law can only punish “doing” (the

actus reus ) and not merely “being” (what could be called the status reus ). Maslenjak’sNo. 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) cr iminalizes conduct and not status by punishing the act of knowingly procuring na turalization 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 Natura lization. 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 prer equisites 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 th e 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 Circ uit’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 he r good moral character. It is the government’s burden to prove beyond a reasonable doubt th at 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 addres sed false testimony in an immigr ation proceeding at 8 U.S.C. § 1101(f)(6). But, as we have already noted, th e Ninth Circuit’s observation is not an accurate statement of law. Congress has actually made it a crime to make “any false statement underNo. 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 I NA’s good moral character requirement is unconstitutionally vague. “As ge nerally stated, the void-for-vague ness doctrine requires that a penal statute define the criminal offense with sufficient definiteness th at ordinary people can understand what conduct is prohi bited and in a manner that doe s 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 possibili ty that it will sometimes be difficult to determine whether the incriminating fact it establishes has been proved; but rather the indeterm inacy 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 notunconstitutionally vague as applied to Maslenjak. 12 That section specifies that “[n]o pers on 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-exha ustive 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 th e period for which good moral character is required to be established, is , or was one who has given fa lse testimony for the purpose of obtaining any benefits under this ch apter.” 8 U.S.C.A. § 1101(f)(6). The statute defines a series of factors which will preclude a finding of good moral character. Th e particular fact or challenged by Maslenjak defines conduct, givi ng false testimony, and calls for the determinatio n of “clear questions of fact” susceptible to “a true-or-fals e determination, not a subj ective judgment such as whether conduct is ‘annoyi ng’ 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 inst ructions to the jury about what the government had to prove to show that Maslen jak had given false testimony for the purpose of procuring an immigration benef it and how her false te stimony meant she did not meet the INA’s good moral character requirement. Specifically, Maslen jak argues that the dist rict court failed to explain that “testimony” under § 1101(f )(6) had to be an oral statem ent 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 fi nd 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 misrepre sentations 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 qualif ies as “testimony” is a question of law. Id. at 782. The Supreme Court also explained that it s literal reading of § 110 1(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 Masl enjak’s claim is belied by what the district court actually stated in its ch arge 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 require d intent is, of course, a quest ion of fact for the jury. Id. at 782.

We hold that the district court did not abus e its discretion because the instructions, taken as a whole, accurately reflected the law. Ross, 502 F.3d at 527. With resp ect 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 pr ecludes someone from bei ng regarded as having good moral character,” which in turn means “the applicant is not en titled to natura lization.” ECF 62, Jury Instr., Page ID 1121. Th is instruction is a clear and accurate st atement of law. Therefore, no abuse of discretion occurred.

As for the instruction about “false tes timony,” the district court did not define “testimony” to limit the term to oral statemen ts 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 Maslen jak’s statements even met the legal definition of “testimony” under 8 U.S.C. § 1101(f)(6) was a que stion of law. The instruction as given did not address any of these aspects of the “fal se testimony” element, as the Supreme Court
described it in Kungys . Nevertheless, when viewed as a whol e, 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 instruct ion about “testimony” was erroneous, the error
was harmless. The harmless-error standard applies “to cases involving imprope r 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 misdescr ibes or omits an element of an offense is subject to harmless error review.”) (citation omitte d). 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 un der 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 withNo. 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 conc ur with some relu ctance 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 materialityis 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 loca ted no other federal criminal st atute 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 el ements 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 th is 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 prosecuti ng statements that are
immaterial.

For all these reasons, our result here is troubl esome. 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.