The Seventh Circuit had only one new opinion in a criminal case last week: United States v. Latchin (Nos. 07-4009 & 08-1085).  Latchin emigrated from Iraq to the United States in the early 1990’s and became a naturalized U.S. citizen in 1998.  However, documents seized by American forces in Baghdad in 2003 revealed that Latchin was in the employ of the Iraqi government.  The documents indicated that Latchin had been sent to the U.S. as a sleeper agent for the Saddam Hussein regime.  It is not clear whether he ever conducted any covert actitivities once inside the U.S., but, somewhat chillingly, he did manage to obtain a job at O’Hare Airport in Chicago.  In any event, once his connections to Saddam were exposed, Latchin was prosecuted for procuring citizenship illegally by making false statements on his naturalization application in violation of 18 U.S.C. § 1425(a).  He was convicted and then appealed.

The legal issues on appeal were not nearly so colorful as the underlying facts.  Most significantly, the court had to determine what it means to “procure” citizenship through a false statement. 

In order to answer the question, the court sorted through the Supreme Court’s badly splintered set of opinions in Kungys v. United States, 485 U.S. 759 (1988).  After counting the votes behind the various competing positions in Kungys, the Seventh Circuit (per Judge Evans) decided that Justice Brennan’s concurrence stated the controlling test: “[T]he government only wins if it shows that the citizen misrepresented a material fact and it is ‘fair to infer to infer that the citizen was actually ineligible.'” 

The court had little difficulty concluding this test was satisfied by the evidence against Latchin: “It defies common sense to think that the INS would have naturalized a man who worked for years as a spy for a hostile regime and who had at least some ongoing relationship with the [Iraqi Intelligence Service].”