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United States v. Maslenjak

United States Court of Appeals, Sixth Circuit

November 21, 2019

United States of America, Plaintiff-Appellee,
v.
Divna Maslenjak, Defendant-Appellant.

          Argued: October 3, 2018

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

         ARGUED:

          Zimra Payvand Ahdout, KIRKLAND & ELLIS LLP, New York, New York, for Appellant.

          Daniel R. Ranke, UNITED STATES ATTORNEY'S OFFICE, Cleveland, Ohio, for Appellee.

         ON SUPPLEMENTAL BRIEF:

          Zimra Payvand Ahdout, KIRKLAND & ELLIS LLP, New York, New York, Christopher Landau, P.C., Patrick Haney, Jeff Nye, KIRKLAND & ELLIS LLP, Washington, D.C., for Appellant.

          Daniel R. Ranke, UNITED STATES ATTORNEY'S OFFICE, Cleveland, Ohio, for Appellee.

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

          OPINION

          JULIA SMITH GIBBONS, CIRCUIT JUDGE

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

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

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

         The Supreme Court reversed. It held that lies told in the immigration process must be material-meaning that the lies "would have mattered to an immigration official" and "played some role in [the] acquisition of citizenship." Maslenjak, 137 S.Ct. at 1923. The Court instructed that the government could satisfy this materiality element by proving one of two things beyond a reasonable doubt: (1) that the facts the applicant misrepresented would themselves disqualify her from receiving citizenship; or (2) that the applicant's false statements hid facts that, if known, would have triggered an investigation that likely would have led to the discovery of other disqualifying facts. Id. at 1928-29. The Supreme Court remanded to this panel to determine whether the erroneous jury instruction was harmless. Id. at 1931.

         Because the government has not proven beyond a reasonable doubt that a properly instructed jury would have convicted Maslenjak, the instructional error was not harmless. We therefore vacate ...


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