The U.S. Supreme Court recently granted certiorari to address a circuit split regarding the essential elements of the naturalization fraud statute. Section 1425 of Title 18 of the United States Code prohibits the knowing procurement, or attempted procurement, contrary to law, of the naturalization of any person, or documentary or other evidence of naturalization or of citizenship. See 18 U.S.C. ' 1425(a). A conviction under 18 U.S.C. ' 1425(a) would denaturalize a previously naturalized citizen. See 8 U.S.C. ' 1451(e).

Generally, the courts have “construe[d] the phrase ‘contrary to law’ to

mean ‘contrary to all laws applicable to naturalization.’”1 Specifically, these courts have ruled that the procurement or attempted procurement of naturalization is “contrary to law” when the applicant provides false information on the application in violation of another criminal statute.2 ________________________ 1 United States v. Maslenjak, 821 F.3d 675, 686 (6th Cir. 2016). See also, United States v. Hannoune, 2014 WL 5148182 at *3 (W.D.Pa., Oct. 14, 2014)(“[t]he statute does not define the phrase ‘contrary to law,’ but ‘it has been interpreted to mean a violation of the laws governing naturalization.’”)(quoting United States v. Djanson, 578 Fed.Appx. 238, 239 (4th Cir., July 11, 2014); citing Fedorenko v. United States, 449 U.S. 490, 506 (1981); United States v. Puerta, 982 F.2d 1297, 1300-01 (9th Cir. 1992)). 2 See United States v. Hannoune, 2014 WL 5148182 at *3 (W.D.Pa., Oct. 14, 2014) (quoting United States v. Latchin, 554 F.3d 709, 712 (7th Cir. 2009); citing United States v. Mensah, 737 F.3d 789, 803 (1st Cir. 2013)). Thus, the predicate offenses under ' 1425(a) may be a part of the Immigration and Naturalization Act, codified at 8 U.S.C. ' 1101, et seq., or a violation of another criminal statute, such as false statements in violation of 18 U.S.C. ' 1015. See United States v. Maslenjak, 821 F.3d 675, 686-87 (6th Cir. 2016)(listing cases).

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U.S. Supreme Court to Decide Whether Naturalized Citizen May be Deported on the Basis of an Immaterial False Statement

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The courts are not united, however, on the characterization of the false information provided. The First, Fourth, Seventh and Ninth Circuits have ruled that materiality is an element of 18 U.S.C. ' 1425(a).3 The Sixth Circuit has ruled, however, that the false information does not in fact need to be “material.”4 The Third Circuit has not yet addressed this specific issue.5

Therefore, the specific question presented to the Court in Maslenjak v. United States, 2017 WL 125668 (Jan. 13, 2017), is “Whether the Sixth Circuit erred by holding, in direct conflict with the First, Fourth, Seventh, and Ninth Circuits, that a naturalized American citizen can be stripped of her citizenship in a criminal proceeding based on an immaterial false statement.”

In Maslenjak, Defendant Divna Maslenjak was a Bosnian Serb who sought to flee the civil war in the former Yugoslavia. In 1998, Mrs. Maslenjak and her family met with U.S. immigration officials in Belgrade to request refugee status. During this oral application process, Mrs. Maslenjak stated that she and her family feared persecution in Bosnia because her husband had refused to enlist in the Bosnian army. In fact, Mr. Maslenjak was not only a member of the Bosnian Serb army, he was an officer in the Bratunac Brigade, the unit which was later convicted of war crimes by the Hague Tribunal. Mrs. Maslenjak also stated that she and her husband had lived apart from 1992 to 1997, when in fact they had lived together. Mrs. Maslenjak and her family ultimately were granted refugee status. They immigrated to the United States in 2000, and Mrs. Maslenjak became a lawful permanent resident in 2004. In 2006, U.S. immigration officials targeted Mr. Maslenjak to investigate whether he lied on his immigration application regarding his service in ________________________ 3 See, e.g., United States v. Mensah, 737 F.3d 789, 803 (1st Cir. 2013); United States v. Latchin, 554 F.3d 709, 712, 713 n. 3 (7th Cir. 2009); United States v. Aladekoba, 61 Fed.Appx. 27, 28 (4th Cir. 2003); United States v. Puerta, 982 F.2d 1297 (9th Cir. 1992). See also, United States v. Shahla, 2013 WL 2406383 at *3 n.9 (M.D.Fl., June 3, 2013), aff’d, 752 F.3d 939 (11th Cir. 2014), cert. denied, 135 S.Ct. 985 (2015). 4 The Eighth Circuit has not specifically ruled on this issue, but has concluded that a lower court did not err by instructing the jury that materiality was an element of naturalization fraud. See United States v. Nguyen, 829 F.3d 907, 915 (8th Cir. 2016)(court approved the following instructions: “(1) the defendant provided false information in the naturalization process, (2) the false information related to a material matter, (3) the defendant acted knowingly, and (4) naturalization was attempted as a result of the false information.”). 5 At least one court within the Third Circuit has noted the Ninth Circuit’s recitation of the elements for 18 U.S.C. ' 1425(a) with approval. In United States v. Hannoune, 2014 WL 5148182 (W.D.Pa., Oct. 14, 2014), the court noted that, in order to sustain a conviction of attempted naturalization fraud, the government must prove the following elements beyond a reasonable doubt:

(1) that the false information provided by the defendant has a tendency to suggest that he was qualified for naturalization, (2) that the production of truthful information would have led to the discovery of facts relevant to the alien's petition for naturalization, and (3) that there must be evidence sufficient to ‘give rise to a fair inference’ that the applicant was statutorily ineligible for naturalization.

Hannoune, 2014 WL 5148182 at *3 n.3 (quoting United States v. Alferahin, 433 F.3d 1148, 1154-55 (9th Cir. 2006); citing Puerta). Other courts within the Third Circuit have simply referenced the statute itself to identify the essential elements of ' 1425(a). See, e.g., United States v. Malik, 2009 WL 4641706 at *4 (E.D.Pa., Dec. 7, 2009)(Surrick, J.), aff’d, 424 Fed.Appx. 122 (3d Cir., Apr. 21, 2011); United States v. Vaghari, 2009 WL 2245097 at *4 (E.D.Pa., July 27, 2009)(DuBois, J.).

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the Bosnian Serb army. Following Mr. Maslenjak’s arrest, Mrs. Maslenjak applied for naturalization. On her naturalization application, Mrs. Maslenjak stated that she had never knowingly lied to a U.S. government official while applying for immigration or to gain entry to the U.S. Mrs. Maslenjak subsequently became a naturalized citizen in 2007. Mr. Maslenjak ultimately was convicted of making false statements on a government document. To avoid deportation, he filed a petition for asylum. During her husband’s asylum hearing, Mrs. Maslenjak admitted that she had lied to immigration officials in 1998 regarding her husband’s military service and their cohabitation. The government subsequently charged Mrs. Maslenjak with lying on her naturalization application by stating that she had not lied during her previous proceedings to obtain refugee status and naturalization, in violation of 18 U.S.C. ' 1425(a). She was convicted, and her naturalization was revoked pursuant to 8 U.S.C. ' 1451(e).

On appeal, Mrs. Maslenjak claimed that the trial court erred by, inter alia, instructing the jury that it could find her guilty of violating ' 1425(a) if she merely made a false statement in violation of immigration laws, “regardless of whether the statement was material.” See Maslenjak, 821 F.3d at 685. The trial court had concluded that the word “material” is not found in the statute, and there was no support to find that materiality is an implied element of the statute.

Mrs. Maslenjak had relied upon cases from the First, Fourth, Seventh and

Ninth Circuits to argue that proof of materiality is required to denaturalize a citizen under U.S. naturalization laws. Specifically, Mrs. Maslenjak claimed that the same materiality element required for “the civil denaturalization proceedings under 8 U.S.C. ' 1451(a) should also apply to the criminal denaturalization proceedings under 8 U.S.C. ' 1451(e), and by extension, a prosecution under 18 U.S.C. ' 1425(a).” Id. at 682. These cases also presented the equitable argument that mandatory denaturalization under ' 1425(a) is a harsh punishment that should be imposed only after a higher showing of materiality. Id. at 689.

The Sixth Circuit rejected Mrs. Maslenjak’s arguments, and it found the

reasoning of its sister circuits to be unpersuasive. Specifically, the Sixth Circuit agreed with the lower court’s ruling that the word “material” does not

appear in ' 1425(a). See 821 F.3d at 682-83, 690. The Sixth Circuit also determined that Mrs. Maslenjak and its sister circuits improperly equated the civil process for denaturalization under 8 U.S.C. ' 1451(a) with the criminal proceeding provided under 8 U.S.C. ' 1451(e). See 821 F.3d at 683-84, 691-92.

The Sixth Circuit also concluded that, contrary to the assertions of Mrs. Maslenjak and its sister circuits, an individual may be convicted under ' 1425(a) for violating a statute related to naturalization that does not include a materiality element. In her case, the government had charged Mrs. Maslenjak with violating 18 U.S.C. ' 1425(a) by providing false statements on her naturalization application in violation of 18 U.S.C. ' 1015(a) and 8 U.S.C. ' 1427(a)(3). Neither 18 U.S.C. ' 1015(a) nor 8 U.S.C. ' 1427(a)(3) contain a materiality element. See 821 F.3d at 687, 690. Consequently, the Sixth Circuit concluded that a naturalized citizen may be denaturalized for violating a statute which does not contain materiality as an element. Id. at 683, 686-88, 690. The Sixth Circuit did recognize, however, that the government would in fact be required to prove the materiality of the false statement if the offense it identifies as the predicate under 18 U.S.C. ' 1425(a) contains a materiality element. See 821 F.3d at 688. Nonetheless, the Sixth Circuit concluded that, where the predicate offense identified does not contain a materiality element, materiality will not be an implied element under 18 U.S.C. ' 1425(a). Id. at 689.

The Sixth Circuit ultimately identified the essential elements of 18 U.S.C. ' 1425(a) as: “(1) [the defendant]

procured her naturalization; (2) that she procured it in some manner contrary to law; and (3) that she did so knowingly.”6

The Sixth Circuit in Maslenjak did not address the issue of whether Mrs. Maslenjak’s statements were in fact material. See 821 F.3d at 693. The government argued in its brief opposing certiorari that this case is a “poor vehicle” for the Supreme Court to use to resolve the circuit split because Mrs. Maslenjak’s statements were clearly material.

This conclusion begs the question, what type of false statement would be immaterial and therefore not violative of 18 U.S.C. ' 1425(a)?7 It does not appear that the Supreme Court will address this specific issue in Maslenjak, thus leaving the door open for another defendant to enter on another day.

________________________ 6 Maslenjak, 821 F.3d at 685. See also, United States v. Santos, 2016 WL 4029848 at *7 (S.D.Fl., July 26, 2016)(citing United States v. Biheiri, 293 F. Supp. 2d 656, 659 (E.D. Va. 2003); United States v. Rogers, 898 F. Supp. 219, 220 (S.D.N.Y. 1995)).

7 In United States v. Puerta, 982 F.2d 1297 (9th Cir. 1992), Defendant provided false information when he stated that he had never used aliases and that he had not been out of the U.S. after his initial entry. See 982 F.2d at 1299. Citing the caselaw interpreting the civil denaturalization statute, the Ninth Circuit ruled that these false statements were not material because they did not have “a natural tendency to produce the conclusion that the applicant was [not] qualified for citizenship.” Id. at 1303-04 (quoting Kungys v. United States, 485 U.S. 759, 783-84 (1988)(Brennan, J., concurring)).1 Specifically, the court ruled that Defendant’s statements regarding his aliases and time abroad did not raise a fair inference that Defendant was attempting to hide a criminal record or other disqualifying fact. Id. at 1304.

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RECENT THIRD CIRCUIT AND SUPREME COURT CASES Christofer Bates, Research & Writing Attorney

SUPREME COURT

I. Ineffective Assistance of Counsel for Eliciting Racially-Based Future Dangerousness Testimony Buck v. Davis, 15-8049, 2017 U.S. LEXIS 1429 (U.S. Feb. 22, 2017).

This case relies on the Martinez and Trevino decisions to excuse the procedural default of an ineffective assistance of trial counsel claim and grants relief under Federal Rule of Civil Procedure 60(b). The Court found that trial counsel was ineffective for eliciting expert testimony at sentencing that the petitioner’s race made him more likely to commit future crimes of violence. Such race-based future dangerousness evidence is patently unconstitutional, and no competent defense attorney would introduce such evidence.

II. Cert. Granted – Effect of Guilty Plea on Constitutional Challenge to Statute of Conviction Class v. United States, No. 16-424 (Cert. Granted Jan. 13, 2017). QUESTION PRESENTED: Whether a guilty plea inherently waives a defendant’s right to challenge the constitutionality of his statute of conviction? In this case, the defendant raised Second Amendment and Due Process challenges to his prosecution for carrying a firearm on the grounds of the U.S. Capitol Building. He pled guilty, admitting his factual guilt without an explicit appellate waiver. When he re-raised his constitutional claims on appeal, the D.C. Circuit held that his guilty plea waived all claims of error on appeal, including constitutional ones. The Circuits are currently split as follows: the D.C., First, and Tenth Circuits all hold that a guilty plea waives constitutional challenges to the statute of conviction. The Third, Fifth, Sixth, Ninth, and Eleventh Circuits hold that a guilty plea does not inherently waive constitutional challenges. Finally, the Fourth, Seventh, and Eighth Circuits allow facial, but not as-applied constitutional challenges to a conviction after a guilty plea.

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THIRD CIRCUIT

I. Two-Jury Procedure in Joint Trial / Preserving Sentencing Objections United States v. Brown, --- F.3d ---, 2017 U.S. App. LEXIS 3124 (3d Cir. Feb. 22, 2017). Brown was charged with participating in a cocaine trafficking conspiracy. He was tried along with another co-defendant who was connected to the conspiracy, but had no connection to him personally. The remainder of the co-conspirators pled guilty. The trial court made the decision to empanel separate juries for Brown and his co-defendant who went to trial. Brown argued on appeal that the dual jury procedure violated his Fifth Amendment Due Process rights and his Sixth Amendment right to a trial before an impartial jury. The Court began by holding that Brown’s constitutional challenges were not waived merely because his defense counsel agreed to the dual jury procedure. There was no record made that Brown knew the rights he was waiving and the consequences of waiving those rights. The court reserved for 2255 proceedings the issue of whether defense counsel was ineffective for agreeing to the dual jury procedure. Substantively, Federal Rule of Criminal Procedure 14 gives the district courts great latitude in crafting procedures for joint trials. The dual jury procedure used in this case was within the trial court’s discretion. Further, Brown was unable to point to any prejudicial evidentiary spillover from his co-defendant sufficient to establish a plain error. The Court also rejected Brown’s invitation to revisit its earlier en banc decision in United States v. Flores-Mejia, 759 F.3d 253 (3d Cir. 2014), which requires a defendant to raise procedural objections after the district court pronounces its sentence in order to preserve the error and avoid plain error review.

II. Drug Weight / Abuse of Trust / Obstruction of Justice / Sentencing Disparity United States v. Douglas, --- F.3d ---, 2017 U.S. App. LEXIS 3125 (3d Cir. Feb. 22, 2017). Douglas, who had a special badge enabling him to pass TSA checkpoints without having his luggage checked, was involved in a large scale cocaine trafficking conspiracy. The evidence supported the district court’s factual finding that the government proved Douglas responsible for more than 450 grams of cocaine by a preponderance of the evidence. A co-defendant testified that Douglas smuggled 10 or 13 kilograms through the San Francisco International Airport 40 to 50 times. This was corroborates by flight records, telephone toll records, and bank deposits.

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The district court properly applied the two-level enhancement for abuse of a position of trust pursuant to U.S.S.G. § 3B1.3. Given the “paramount importance of airport security,” the discretion that a person has when given security access at an airport is similar to the way prison workers are treated under the guidelines. And given the importance of airport security to the nation’s national security, government authorities who grant access to secured areas in the airport expect those with access to act with integrity. Therefore, an airport employee granted a security clearance is reasonably viewed as a person who occupies a position of public trust that can be breached by using his position to further a crime. The enhancement was proper here even though there was no evidence that Douglas held any supervisory position, because given his security clearance, Douglas’s freedom permitted him to commit a “difficult-to-detect” crime. The district court erred when it imposed an obstruction of justice enhancement based on Douglas’s failure to appear for court on one day of trial. There was no evidence in the record to suggest Douglas’s failure to appear was willful. To the contrary, there were medical records demonstrating that he had been in the emergency room in the early morning hours, along with a doctor’s note excusing him from court that day. Thus, the case was remanded for resentencing. III. “Listening Post” Theory for Wiretaps / Evidentiary Issues United States v. Jackson, --- F.3d ---, 2017 U.S. App. LEXIS 3367 (3d Cir. Feb. 24, 2017). In this case, the Third Circuit adopted the “listening post” theory that under Title III either the interception of or the communications themselves must have been within the issuing judge’s territorial jurisdiction. This meant that the wiretaps intercepting Mr. Jackson’s out-of-state phone calls were lawful, because the intercepting law enforcement officers were located inside Pennsylvania. The Pennsylvania wiretap statute, which is generally modeled after Title III, includes an express provision adopting the listening post theory. Therefore, the evidence from the state wiretaps upon which the later federal wiretap orders were partially premised was lawfully obtained, and the district court properly denied Mr. Jackson’s motion to suppress evidence from the federal wiretaps.

The district court erred in allowing the agent to testify as a lay witness about his understanding of the meaning of clear conversations made during the intercepted calls. In some parts, the agent inferred the knowledge for his testimony on other evidence, rather than on his direct knowledge of the events at issue. The error in admitting this testimony, however, was not plain. Furthermore, there was minimal prejudice because Jackson’s co-defendants testified to the same basic interpretations of the calls, and the jury was able to independently review them to reach its own conclusions.

The district court did not err when it permitted the government to elicit testimony about the cooperating co-defendants’ guilty pleas. Such evidence was not admitted as substantive evidence of Jackson’s guilt; rather, it was relevant to the cooperators’ credibility, whether the government was selectively prosecuting Jackson, and whether the co-conspirators had firsthand knowledge of the crime for which Jackson was on trial.

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There was no plain error established by the prosecutor’s inopportune mention of a co-conspirator’s invocation of his Fifth Amendment right in response to a question from the district court about the applicability of a particular hearsay exception. Finally, there was valid claim of cumulative trial error.

IV. Ineffective Assistance of Counsel for Failing to Seek Judge’s Recusal McKernan v. Superintendent, Smithfield SCI, --- F.3d ---, 2017 U.S. App. LEXIS 3593 (3d Cir. Feb. 28, 2017). This case holds that the constitutional right to an impartial trial extends to a bench trial, and cannot be waived by a defendant. Defense counsel in this case rendered ineffective assistance when he not only failed to move for a recusal of the trial judge in McKernan’s bench trial for homicide, but also talked McKernan out of pursuing the issue.

The trial judge called the homicide victim’s family into her robing room after reading a website they had created about her, which painted her as a lenient judge who was incapable of rendering harsh decisions to defendants. She also referred to the district attorney as the family’s attorney, when in fact the prosecutor represented the Commonwealth of Pennsylvania. And finally, the judge reassured the family that she was not a judge incapable of issuing harsh results. These facts played directly into McKernan’s trial theory --- that he was guilty of a lesser degree of homicide. Any competent attorney would have moved to recuse the judge (who was deciding the issue of innocence or guilt in the bench trial) as a result of this bias. Not only that, but defense counsel took things a step further by talking McKernan out of pursuing a recusal motion. The prejudice prong of the ineffective assistance claim was met here because the trial judge’s sensitivity to criticism for being too lenient made it far less likely that she would accept McKernan’s defense that he was guilty of a lesser degree of homicide.

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MARCH 2017

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