U.S. v. Latchin

• Decision Date: 04 February 2009
• Docket Number: No. 07-4009.,No. 08-1085.,07-4009.,08-1085.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Sami Koshaba LATCHIN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

554 F.3d 709

UNITED STATES of America, Plaintiff-Appellee, v. Sami Koshaba LATCHIN, Defendant-Appellant.

No. 07-4009.

No. 08-1085.

United States Court of Appeals, Seventh Circuit.

Argued October 28, 2008.

Decided February 4, 2009.

Andrew S. Boutros (argued), Office of the United States Attorney, Chicago, IL, for Plaintiff-Appellee.

Mary Higgins Judge, Terence F. MacCarthy, William H. Theis (argued), Office of the Federal Defender Program, Chicago, IL, for Defendant-Appellant.

Before BAUER, RIPPLE, and EVANS, Circuit Judges.

EVANS, Circuit Judge.

A jury found Sami Latchin, an Iraqi native who moved to the United States in the early 1990s, guilty of procuring citizenship illegally by making false statements in a naturalization application and of acting as an "unregistered agent" (a spy) for the Iraqi government. The case against Latchin was built on a treasure trove of Iraqi government materials seized by the FBI in Baghdad in 2003 after the fall of Saddam Hussein. After his convictions, Latchin's citizenship was revoked. On this appeal, he asks us to vacate his convictions for want of sufficient evidence and error in the jury instructions. Because the government supposedly failed to prove that he was ineligible for citizenship, Latchin asks us to undo the revocation order as well. We begin with the facts viewed in the light most favorable to the verdict.

The government alleged that Saddam Hussein, anxious to recover from his defeat in the First Gulf War, established an ambitious spy program. The plan: install "sleeper" agents in countries around the world; have them spend the next few years earning the trust of their communities; and then, when they had gained positions of influence, activate them to gather intelligence and influence policy in favor of Saddam's Ba'athist regime. All spy programs, of course, operate on deception— the spies pretend to be people they aren't. But Saddam's plan took it to a whole new level—not even the spies would know they were part of the program until they were activated many years down the road.

Latchin was selected as one of the sleeper agents and given the dubious honor of being the only spy planted in the United States. He was a natural choice. Latchin joined the Iraqi Intelligence Service (IIS) in 1979, so he had years of experience under his belt. More importantly, though, he was uniquely positioned to facilitate the IIS's chief mission in the United States— to gather intelligence on Iraqi opposition groups. As a member of the minority Christian community in Iraq, Latchin would have the inside track to befriending Iraqi Christians in the United States, individuals Saddam thought were hostile to his regime. And Latchin had experience spying on these people. In the 1980s, he posed as an Iraqi Airways employee in Athens, gathering information on Iraqi Christians entering the United States by way of Greece.

As we said, though, participants in the sleeper program, including Latchin, had no idea they were part of this particular program. So when Latchin moved to the United States in 1993, he was unaware that he had been chosen as a sleeper agent. But that doesn't mean Latchin thought he was out of the spy business altogether. An IIS agent testifying under the pseudonym "Ali" said that he approached Latchin while Latchin was still in Iraq and informed him that the IIS approved his relocation to the United States. Ali did not give Latchin "any details about the plan," but Latchin must have known there would be work to do. The agent told Latchin "not to do anything whatsoever, just get [to the United States] and settle until I give you further details about the plan later." It is unclear whether those "details" ever came or whether Latchin took any covert action once he arrived in the United States. What we do know is that, after he moved here, Latchin traveled to Eastern Europe on several occasions between 1994 and 1997 to meet with Ali, who was then acting as Latchin's "handler." As a handler, Ali was essentially a liaison between Latchin and the IIS: he gave Latchin a codename; devised a cover story in case Latchin ever ran into trouble with the authorities; and filed reports with the IIS following meetings with Latchin. But the most salient action taken by Ali was compensating Latchin for his services, payments that totaled approximately $24,000 per year.¹ To counter this evidence, Latchin argued that he simply thought it was his retirement pay. Latchin presented evidence that he had retired from the IIS and moved to America with the agency's blessing (but nothing more).

In any event, Latchin settled down in 1993 with his family in Chicago and acquired a job as a counter agent at O'Hare International Airport. After residing in the United States for five years, Latchin successfully applied for naturalization in 1998. That may strike the reader as a shock. How could a spy for Saddam Hussein—whether past or present—acquire citizenship so easily? According to the government, only by lying.

The application form asked three critical questions. First, it asked Latchin to "[l]ist [his] employers during the last five (5) years." Latchin reported his work at O'Hare but said nothing of the IIS or any other involvement with the Iraqi government. He maintained his silence when he arrived at the second question. That question asked him to "[l]ist [his] present and past membership in or affiliation with every organization, association, fund, foundation, party, club, society, or similar group in the United States or any other place," including "military service." Latchin wrote "none." Finally, the application inquired whether Latchin had been "absent from the U.S. since becoming a permanent resident." Latchin admitted that he had traveled outside the country on a number of occasions but said he merely went on "vacation."

After Latchin completed the naturalization form, he met with Emily Reyes of the Immigration and Naturalization Service (INS) for a live interview. Reyes quizzed Latchin on his command of the English language and knowledge of United States history and government. She also reviewed the naturalization form and asked Latchin to confirm his answers, which he did without exception. With no inkling of Latchin's connections to the IIS, Reyes approved the application "on the spot." Had Latchin disclosed his affiliation with the IIS, however, Reyes testified she would have investigated further and passed the matter along to her supervisor.

With this evidence in place, the jury was asked to decide whether Latchin (1) procured citizenship illegally by making false statements in violation of 18 U.S.C. § 1425(a), and (2) acted as an unregistered foreign agent in violation of 18 U.S.C. § 951(a).² The jury answered "yes" on both counts, and now we must decide whether that verdict was supported by sufficient evidence. In addition, we must decide whether the trial court committed reversible error in instructing the jury on the requirements of § 1425(a) and, if the conviction stands after all that, whether the court erred in revoking Latchin's citizenship.

When a defendant disputes the sufficiency of the evidence, we "must determine whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." United States v. Haddad, 462 F.3d 783, 791 (7th Cir.2006) (internal quotation marks omitted). We start with Latchin's conviction under § 1425(a).

Section 1425(a) makes it a crime to "knowingly procure[ ]" or "attempt[ ] to procure" naturalization in contravention of the law. 18 U.S.C. § 1425(a). One of the ways a person can procure citizenship illegally, the way charged in this case, is to make false statements in a naturalization application. 18 U.S.C. § 1001(a). However, though the elements of the crime of procuring citizenship through false statements would seem clear enough, we have never ventured to define them. Both sides agree that a false statement has to be "material" to sustain a conviction—a trivial falsehood will not do—but they cross swords over what that word means and what else might be necessary. The government advocates for a definition of materiality that is consistent with general legal usage: a misrepresentation is material if it influenced the naturalization decision, regardless of whether it was outcome-determinative. Latchin would increase the government's burden so that a false statement is only material if a true statement would have precluded citizenship. Since no one testified that Latchin's application would have been outright denied had he disclosed his affiliation with the IIS—Reyes only said she would have asked more questions and flagged the case for a supervisor— Latchin submits that the government failed to prove its case. We disagree.

The pivotal decision in all this is Kungys v. United States, 485 U.S. 759, 108 S.Ct. 1537, 99 L.Ed.2d 839 (1988). Kungys holds that a statement in an application for citizenship is material if it has a "natural tendency to influence" the naturalization decision. Id. at 771, 108 S.Ct. 1537. The Court eschewed any strict formula hinging on probabilities, observing that it "has never been the test of materiality that the misrepresentation or concealment would more likely than not have produced an erroneous decision, or even that it would more likely than not have triggered an investigation." Id. Instead, a statement is material as long as it is germane to the decisional process, as long as it has a "natural tendency to influence" a reviewing officer's actions.

It is tempting to end the analysis there (and hold Latchin's § 1425(a) conviction sufficient because it passes the Kungys test for materiality), but that would be a mistake. We must also consider Kungys's discussion of what must be proven beyond materiality to establish that citizenship was procured through misrepresentation.³

Kungys is...