United States District Court, D. Kansas
MEMORANDUM AND ORDER
JULIE A. ROBINSON, District Judge.
Before the Court is Defendant Ernest Opoku Acheampong's Motion to Dismiss the Indictment (Doc. 21), in which he argues that the Indictment fails to allege all essential elements of the crime charged. The motion is fully briefed and the Court heard oral argument on February 18, 2015. The Court has considered the filings and the arguments made by the parties at the hearing and is prepared to rule. As described more fully below, the Court denies Defendant's motion to dismiss.
The Indictment in this matter charges as follows:
That on or about October 29, 2004, within the District of Kansas and elsewhere, the defendant,
ERNEST OPOKU ACHEAMPONG,
knowingly and intentionally obtained United States citizenship by naturalization contrary to law, in that he became a naturalized United States citizen after falsely representing to the United States government during the naturalization process that he had never been ordered to be deported from the United States, that he had never applied for any kind of relief from deportation, and that he never used any other name other than the name under which he was seeking naturalization, when, in fact, he entered the United States in 1994 without documents, applied for asylum under the name Michael Smith, had his asylum claim denied, was ordered deported from the United States but failed to leave the United States, thereby committing perjury in violation of Title 18, United States Code, Section 1621, and making a material false statement to an agency of the United States government, in violation of Title 18, United States Code, Section 1001(a), in connection with the submission of his Form N-400 containing those false and fraudulent statements and representations, all in violation of Title 18, United States Code, Section 1425.
Under the Fifth Amendment, no person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury alleging all the elements of the crime." An Indictment is sufficient if it meets minimal constitutional standards, which must be determined by "practical rather than technical considerations." It is sufficient if it (1) sets forth the elements of the crime charged; (2) places the defendant on fair notice of the charges against which he must defend; and (3) enables the defendant to assert a double jeopardy defense. It is generally sufficient if the indictment sets forth the offense in the words of the statute, "as long as those words themselves fully, directly, and expressly, without any uncertainty or ambiguity, set forth all the elements necessary to constitute the offence intended to be punished.'" "An indictment should be tested solely on the basis of the allegations made on its face, and such allegations are to be taken as true."
Defendant seeks dismissal because the Indictment does not specify whether the offense arises under § 1425 subsection (a) or (b) and because it does not include the element of "procurement" required for a subsection (a) offense. The statute provides:
(a) Whoever knowingly procures or attempts to procure, contrary to law, the naturalization of any person, or documentary or other evidence of naturalization or of citizenship; or
(b) Whoever, whether for himself or another person not entitled thereto, knowingly issues, procures or obtains or applies for or otherwise attempts to procure or obtain naturalization, or citizenship, or a declaration of intention to become a citizen, or a certificate of arrival or any certificate or evidence of nationalization or citizenship, documentary or otherwise, or duplicates or copies of any of the foregoing-
Shall be fined under this title or imprisoned....
There is no Tenth Circuit decision construing § 1425, but most of the circuit courts to construe the elements of an offense under this statute distinguish between offenses under subsections (a) and (b). However, the Sixth Circuit has held that the statute does not define two crimes, but instead provides "two means by which unlawful naturalization can be obtained. Under the statute, one can procure naturalization contrary to law' (§ 1425(a)) or naturalization to which one is not entitled (§ 1425(b))." But even under the Sixth Circuit's interpretation, a violation of § 1425 requires that the defendant "procure" naturalization either contrary to the law or to which one is not entitled. The Government maintained at oral ...