United States v. Mensah

United States Court of Appeals
For the First Circuit

No. 12-1066

UNITED STATES,

Appellee,

v.

DAVID K. MENSAH, a/k/a Willberforce Appiah,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nathaniel M. Gorton, U.S. District Judge]

Before

Torruella, Selya, and Lipez,

Circuit Judges.

Judith H. Mizner, with whom Rheba Rutkowski, Assistant Federal
Public Defender, and Miriam Conrad, Federal Public Defender, were
on brief, for appellant.
Kelly Begg Lawrence, Assistant U.S. Attorney, with whom Carmen
M. Ortiz, United States Attorney, was on brief, for appellee.

December 16, 2013
 LIPEZ, Circuit Judge. Appellant David Mensah

successfully negotiated the complexities of United States

immigration law twice: first, to become a naturalized citizen under

his own name and, second, to obtain a diversity visa under the

false name Willberforce Appiah. His success, however, was short-

lived. The government detected Mensah's double dipping, and he was

subsequently found guilty by a jury on a charge of unlawful

procurement of naturalization, in violation of 18 U.S.C. § 1425(a),

based on his concealment of his Appiah identity. On appeal, Mensah

raises a host of errors, ranging from constitutional claims to the

allegedly improper admission of propensity evidence. His most

substantial claim is that the selection of his jury involved

purposeful discrimination. See Batson v. Kentucky, 476 U.S. 79, 86

(1986). Although the issue is close, we conclude that the district

court did not clearly err in allowing the prosecutor's peremptory

challenges to two Asian-American potential jurors. Hence, we

affirm.

I.

The facts, as supported by the record, are as follows.

Appellant Mensah entered the United States from Ghana in the early

1990s and received permanent legal resident status in 1995 pursuant

to a diversity visa.1 Mensah obtained a Massachusetts driver's

1
"Diversity visas" are made available to citizens of
countries that have been under-represented "within the annual pool
of immigrants entering the United States." United States v.

-2-
license two years later. In October 2000, he applied for a

diversity visa in the name of Willberforce Appiah,2 and a few

months later, in February 2001, he applied for citizenship under

his own name. In the naturalization application, Mensah responded

"N/A" to a request for "[o]ther names used since you first became

a permanent resident." The application also asked whether Mensah

had ever "knowingly committed any crime for which [he had] not been

arrested." Mensah checked the box labeled "No." He also signed an

affirmation on the form stating that "this application, and the

evidence submitted with it, is all true and correct."

In June 2001, Mensah followed up on the Appiah visa

application by submitting a form titled "Supplemental Registration

for the Diversity Visa Program." He listed the same address in

Ghana that he had used in the original Appiah application, again

noting that mail should be sent there "c/o D.K. Mensah." In

December 2001, Mensah filed his final Appiah application for a

diversity visa, along with an affidavit in his own name sponsoring

Kouevi, 698 F.3d 126, 127 (3d Cir. 2012); see also Amouri v.
Holder, 572 F.3d 29, 31 (1st Cir. 2009); 8 U.S.C. § 1153(c). The
visas are distributed by means of an annual lottery held by the
Department of State. Gebre v. Rice, 462 F. Supp. 2d 186, 187 (D.
Mass. 2006) (describing the Diversity Visa Program).
2
In addition to the application itself, which was undated,
the government introduced into evidence an envelope addressed to
the Diversity Program, postmarked in October 2000, and bearing a
return address in Ghana that included "c/o DK Mensah." Mensah
emphasizes that there is no direct evidence proving that the Appiah
application was in the envelope.

-3-
Appiah for the visa. The government issued a diversity visa to

Appiah in August 2002, and Mensah used it when he returned to the

United States a few weeks later after a trip to Ghana.3 Shortly

thereafter, he obtained a Massachusetts state identification card

in Appiah's name and, in May 2003, a driver's license.

Meanwhile, in August 2001, Mensah was interviewed by the

Immigration and Naturalization Service ("INS") in connection with

his naturalization application. After placing Mensah under oath,

the examiner, Alton Saucier, asked him a series of questions,

including whether Mensah had ever knowingly committed a crime for

which he had not been arrested. Mensah responded that he had

"never" done so. At the end of the interview, Mensah signed the

application, swearing that it was "true to the best of my knowledge

and belief." Saucier recommended approval of Mensah's

naturalization application, and he became a citizen in September

2001 -- in the midst of his activities to create a second identity

as Willberforce Appiah.

In October 2006, the Massachusetts State Police ("MSP")

learned that Mensah had obtained driver's licenses under both

names, in violation of state law barring the use of false

information to procure a license. See Mass. Gen. Laws ch. 90,

§ 24B. Officers obtained a warrant charging him with violating

3
In his naturalization application, Mensah reported that he
periodically visited family in Ghana.

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section 24B and, a month later, arrested him in his car a few

blocks from his home. During an inventory search of the vehicle,

the officers found multiple documents bearing the false Appiah

name. In January 2009, Mensah admitted in state court that

sufficient facts existed to sustain a conviction under section 24B,

and the case was continued without a finding.4

A subsequent investigation by Immigration and Customs

Enforcement ("ICE") led to Mensah's indictment in this case in

March 2010 on one count of unlawful procurement of naturalization,

in violation of 18 U.S.C. § 1425(a).5 The government charged that

Mensah had unlawfully obtained naturalization by making material

false statements under oath during his naturalization proceedings,

in violation of § 1015(a) -- i.e., he allegedly procured

naturalization, "contrary to law," by making unlawful false

statements in his naturalization application and interview.6 A

Bill of Particulars filed by the government at Mensah's request

4
Such a continuance occurs when a defendant agrees to a
period of probation without a guilty finding, and it can lead to
dismissal of the case if the defendant adheres to the conditions of
probation. See Mass. Gen. Laws ch. 278, § 18.
5
Section 1425(a) provides that "[w]hoever knowingly procures
or attempts to procure, contrary to law, the naturalization of any
person, or documentary or other evidence of naturalization or of
citizenship" is guilty of a crime. 18 U.S.C. § 1425(a).
6
Section 1015(a) provides that "[w]hoever knowingly makes any
false statement under oath, in any case, proceeding, or matter
relating to, or under, or by virtue of any law of the United States
relating to naturalization, citizenship, or registry of aliens" is
guilty of a crime. 18 U.S.C. § 1015(a).

-5-
pointed to three false statements: (1) his response "N/A" on the

naturalization application form, when asked if he had used other

names since becoming a permanent resident, (2) his answer of "no"

(by checking a box on the form), when asked if he had "ever

knowingly committed any crime" for which he had not been arrested,

and (3) his oral statement to INS Officer Saucier in August 2001

repeating that he had never knowingly committed such a crime.

Mensah moved to suppress the documents found in his car

on the ground that the officers who arrested him unlawfully seized

and searched the vehicle. The district court denied the motion.

Characterizing the inspection of Mensah's car as a warrantless

inventory search, the court held that it was permissible under the

Fourth Amendment because the officers had acted pursuant to

"standardized policies." See Section II infra. The district court

also rejected Mensah's Batson challenge to the government's

peremptory strikes of the only two Asian-Americans in the jury

pool, crediting the prosecutor's race-neutral reasons for excluding

them. See Section III infra.

At trial, the government's theory was that all three of

the statements alleged to be false were untrue because, at the time

they were made, Mensah had previously applied for the diversity

visa using the fake Appiah name -- a crime under 18 U.S.C.

-6-
§ 1001(a)(2).7 Thus, he knowingly lied in his naturalization

application -- in violation of 18 U.S.C. § 1015(a) -- when he

denied that he had used other names (by responding that the

question was not applicable to him) and when he twice reported

(once in the application and once in the interview) that he had

never knowingly committed a crime for which he had not been

arrested (the section 1001(a)(2) violation). The section 1015

violation then became the predicate for the section 1425(a)

violation, i.e., he allegedly procured naturalization contrary to

law by means of those unlawful false statements.8

Mensah did not dispute the facts underlying the unlawful

procurement charge. He admitted that he had applied for a visa in

the name of Willberforce Appiah and that he had answered the

questions in the manner reported above while obtaining citizenship

in his own name. His defense, instead, was that the government had

failed to prove multiple elements of the crime beyond a reasonable

doubt. Specifically, he argued that the government failed to show

that (1) he knowingly committed a crime by submitting the Appiah

diversity visa application, (2) the statements on the

7
Section 1001(a)(2) imposes a fine or imprisonment, or both,
on anyone who "in any matter within the jurisdiction of the
executive, legislative, or judicial branch of the Government of the
United States, knowingly and willfully . . . makes any materially
false, fictitious, or fraudulent statement or representation."
8
Mensah was not charged with violating section 1015 because
the statute of limitations had run on that offense by the time the
government completed its investigation.

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naturalization form were made under oath, (3) "N/A" as a response

to the question about other identities was a false statement, and

(4) he knew that he was statutorily ineligible for citizenship at

the time that he applied for and obtained naturalization. The jury

was not persuaded, finding Mensah guilty after two hours of

deliberation.

On appeal, Mensah renews his Fourth Amendment challenge

to the search and seizure of his vehicle and his Batson challenge

to the prosecutor's peremptory strikes of "the only Asian members

of the jury venire." He additionally claims that the evidence was

insufficient to support the jury verdict, asserts error in certain

jury instructions, and argues that the district court abused its

discretion in allowing the government to introduce evidence

concerning his driver's license arrest.

II.

Mensah claims that the district court erroneously denied

his motion to suppress the documents bearing the name Willberforce

Appiah that were seized from his car after his arrest in November

2006, as well as unspecified statements concerning those documents

that he made to officers. The documents were found on the front

passenger floor and in the unlocked glove compartment during a

search of his car that took place after Mensah was handcuffed and

placed in a police cruiser. Among the items found with the Appiah

name were a checkbook, a credit union membership card, and an

-8-
insurance bill and receipt relating to two vehicles. The district

court held that the troopers' search of the car was permissible

under the Fourth Amendment because the officers had followed

standard MSP procedures for towing a vehicle and conducting an

inventory search.

We review the district court's ultimate ruling on

suppression de novo, accepting its underlying factual findings

unless clearly erroneous. United States v. Wurie, 728 F.3d 1, 2-3

(1st Cir. 2013). Because the court found a lawful inventory

search, it did not address the government's argument that the

officers' examination of the vehicle also was justified as a search

incident to arrest. Without suggesting any reservations about the

district court's analysis, we choose to focus on the search-

incident-to-arrest doctrine because it easily disposes of the claim

of error. See United States v. Sanchez, 612 F.3d 1, 4 (1st Cir.

2010) (noting that a district court order denying suppression may

be affirmed on any ground supported by the record).

A warrantless search incident to arrest is permissible

"when it is reasonable to believe that evidence of the offense of

arrest might be found in the vehicle." Arizona v. Gant, 556 U.S.

332, 335, 343 (2009). Here, the officers' investigation had

revealed that Mensah had obtained driver's licenses under two

different names, one of which was false. The troopers had a valid

arrest warrant charging him with unlawfully obtaining a driver's

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license under a false name. When Mensah was stopped while driving,

he gave officers a license and registration in his own name. The

dispositive issue is thus whether the officers could have

reasonably believed that the license bearing Mensah's second, false

identity -- or other documents showing that Mensah had secured a

license under the Appiah name -- also would be in the vehicle.

Mensah asserts that the government has offered no facts

to support an objectively reasonable belief that such evidence

would be found in the car. As the government observes, however,

the passenger compartment of a car is "by custom and necessity[] a

common repository for motor vehicle-related documents." Given that

the officers knew that Mensah was using licenses in two different

names, it would be reasonable for them to presume that he had

obtained multiple licenses so that he could represent himself as a

different person at his convenience. It would thus be reasonable

for the officers to believe that he would have both licenses

readily available in his vehicle.

Moreover, contrary to Mensah's suggestion, it is

irrelevant that the trooper conducting the search had in mind MSP

policy governing towing and inventory searches rather than the

Supreme Court's precedent on searches of vehicles incident to

arrest. See Florida v. Jardines, 133 S. Ct. 1409, 1416 (2013)

("[A] stop or search that is objectively reasonable is not vitiated

by the fact that the officer's real reason for making the stop or

-10-
search has nothing to do with the validating reason." (emphasis

deleted)); United States v. Hadfield, 918 F.2d 987, 993 (1st Cir.

1990) ("[A]n officer's state of mind or subjective intent in

conducting a search is inapposite as long as the circumstances,

viewed objectively, justify the action taken."). Hence, "the

likelihood of discovering offense-related evidence authorized the

search in this case." Gant, 556 U.S. at 344.

The district court thus correctly denied Mensah's motion

to suppress.

III.

Mensah claims that the prosecutor exercised his

peremptory challenges to exclude two Asian-Americans from the jury

solely on account of their race, in violation of the Equal

Protection Clause.

A. Legal Background

In Batson v. Kentucky, the Supreme Court reaffirmed the

longstanding principle that a criminal defendant's equal protection

rights are violated when jury selection at his trial is "affected

by invidious racial discrimination." United States v. Girouard,

521 F.3d 110, 112 (1st Cir. 2008); see also Miller-El v. Dretke,

545 U.S. 231, 238 (2005); Batson, 476 U.S. at 85-87. The obstacle

to eradicating such impermissible motivation has been "the

practical difficulty of ferreting out discrimination in selections

discretionary by nature, and choices subject to myriad legitimate

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influences, whatever the race of the individuals on the panel from

which jurors are selected." Dretke, 545 U.S. at 238. Because

peremptory strikes have long been used to exclude minorities from

juries, the Court in Batson outlined a three-part burden-shifting

framework –- now commonly called a "Batson challenge" –- under

which a defendant can dispute a prosecutor's use of peremptory

strikes against minority jurors and show an equal protection

violation:

First, a defendant must make a prima facie
showing that a peremptory challenge has been
exercised on the basis of race. Second, if
that showing has been made, the prosecution
must offer a race-neutral basis for striking
the juror in question. Third, in light of the
parties' submissions, the trial court must
determine whether the defendant has shown
purposeful discrimination.

Miller-El v. Crockrell, 537 U.S. 322, 328-29 (2003) (citing Batson,

476 U.S. at 96-98) (specific citations omitted).9

The parties here do not dispute that Mensah has made a

satisfactory prima facie showing and that the government has

proffered race-neutral reasons for its strikes. We therefore focus

exclusively on the third step: was the district court correct that

Mensah failed to carry his burden of demonstrating purposeful

9
We note that the Batson framework has been extended beyond
its original context to cover, inter alia, claims of gender
discrimination in jury selection, see J.E.B. v. Alabama ex rel.
T.B., 511 U.S. 127, 129 (1994), and jury selection in civil cases,
see Edmonson v. Leesville Concrete Co., 500 U.S. 614, 616 (1991).

-12-
discrimination? See United States v. Lara, 181 F.3d 183, 194 (1st

Cir. 1999) (noting that "we can truncate the usual inquiry" where

a preliminary step is undisputed).

The party opposing a peremptory strike bears the burden

of proof throughout the inquiry. Girouard, 521 F.3d at 113. We

review for clear error the district court's factual determination

that the prosecutor was not motivated by race, United States v.

Charlton, 600 F.3d 43, 50 (1st Cir. 2010), mindful that

"determinations of credibility and demeanor lie peculiarly within

a trial judge's province," Snyder v. Louisiana, 552 U.S. 472, 477

(2008) (internal quotation marks omitted). The Supreme Court has

noted the importance of "the trial court's first-hand observations"

because "'the best evidence [of discriminatory intent] often will

be the demeanor of the attorney who exercises the challenge,'"

along with "whether the juror's demeanor can credibly be said to

have exhibited the basis for the strike attributed to the juror by

the prosecutor." Id. (quoting Hernandez v. New York, 500 U.S. 352,

365 (1991)) (alteration in original). A factual error by the

district court is "clear" only where "we are left with the definite

and firm conviction that a mistake has been committed." United

States v. Gonzalez-Melendez, 594 F.3d 28, 35 (1st Cir. 2010)

(internal quotation mark omitted).

In evaluating a claim of purposeful discrimination under

Batson, "a court must undertake a sensitive inquiry into such

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circumstantial and direct evidence of intent as may be available,"

476 U.S. at 93 (internal quotation mark omitted), considering "all

relevant circumstances," id. at 96; see also Dretke, 545 U.S. at

251-52 (stating that the court must "assess the plausibility of

th[e prosecutor's] reason in light of all evidence with a bearing

on it"); Hernandez, 500 U.S. at 363 ("[A]n invidious discriminatory

purpose may often be inferred from the totality of the relevant

facts . . . ." (alteration in original) (internal quotation mark

omitted)). In keeping with the totality-of-the-circumstances

approach, the analysis may take into account whether explanations

for challenges made later in the process shed light on an earlier

strike. See Snyder, 552 U.S. at 478 (stating that, "if there were

persisting doubts as to the outcome" in one instance, "a court

would be required to consider the strike of [another individual]

for the bearing it might have" on the other challenge); see also

Charlton, 600 F.3d at 55 (Lynch, C.J., concurring) (noting that

seemingly permissible individual strikes may need "a second look"

if, when taken together, they "create a concern that certain groups

are underrepresented").

Courts frequently look to "numeric" evidence to detect

impermissible discrimination, including "the percentage of a

particular group removed from the venire by the challenged strikes"

and "the percentage of strikes directed against members of a

particular group." Aspen v. Bissonnette, 480 F.3d 571, 577 (1st

-14-
Cir. 2007). Comparing the treatment of white and non-white

potential venire members also may shed light on the prosecutor's

intentions. "If a prosecutor's proffered reason for striking a

black panelist applies just as well to an otherwise-similar

nonblack who is permitted to serve, that is evidence tending to

prove purposeful discrimination to be considered at Batson's third

step." Dretke, 545 U.S. at 241; see also Charlton, 600 F.3d at 50-

51 (noting that circumstances bearing on racial animosity include

"'whether similarly situated jurors from outside the allegedly

targeted group were permitted to serve'" (quoting Aspen, 480 F.3d

at 577)).

The circumstances here differ from the classic Batson

case, in which a prosecutor exercises peremptory strikes against

jurors who are of the same non-white race as the defendant. In

this case, Mensah, who is black, contests the prosecutor's

challenges of two Asian-American jurors. Hence, Mensah cannot

argue that the prosecutor's strikes were impermissibly based on an

assumption that the struck jurors would favor him because they were

of the same race. See Batson, 476 U.S. at 97 (stating that "the

prosecutor may not rebut the defendant's prima facie case of

discrimination by stating merely that he challenged jurors of the

defendant's race on the assumption -- or his intuitive judgment --

that they would be partial to the defendant because of their shared

race"). The Supreme Court has long recognized, however, that

-15-
whatever the defendant's race, he has "the right to be tried by a

jury whose members are selected by nondiscriminatory criteria."

Powers v. Ohio, 499 U.S. 400, 404 (1991) (holding that a white

defendant may challenge the exclusion of blacks from his jury).

Accordingly, it is equally impermissible for the prosecutor to use

race as a proxy for some other trait that he believes would make

non-white jurors less likely than a white juror to convict the

defendant. See id. at 416 ("[R]ace prejudice stems from various

causes and may manifest itself in different forms.").

To sum up, "the Equal Protection Clause forbids the

prosecutor to challenge potential jurors solely on account of their

race," whatever the justification. Batson, 476 U.S. at 89. Faced

with a claim that such targeting occurred, we must carefully

examine all of the pertinent facts, giving due deference to the

district court, to determine "whether the defendant ha[s] met his

burden of proving purposeful discrimination on the part of the

State." Id. at 90.

B. The Voir Dire

Jury selection in this case consisted of a three-part

process of examining potential jurors' backgrounds, followed by

four rounds of peremptory challenges. Initially, the district

court asked a pool of about fifty potential jurors two dozen

questions to ascertain the individuals' suitability for the jury.

These inquiries included whether the venire members had family or

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close friends employed in law enforcement, involved in an

immigration proceeding, or charged with a criminal offense, as well

as whether any scheduling issues would interfere with their service

on the jury. The potential jurors raised their hands to show an

affirmative answer as each question was asked. In the next step of

the process, fourteen of those individuals were randomly chosen to

sit in the jury box, and each potential juror who had signaled a

positive response to any of the preliminary questions was called to

sidebar for inquiry about his or her responses. When the sidebar

interview resulted in jurors being dismissed for cause, the jury

box was refilled and the sidebar process repeated.

Once fourteen jurors cleared the sidebar questioning, the

district court moved to step three: asking each of the jurors for

their occupations and, if married, their spouses' occupations. The

first round of peremptory challenges then took place. In round

one, the prosecutor successfully struck three jurors: one whose

mother had been deported in 2005, another whose girlfriend

currently was in amnesty proceedings, and a lawyer whose practice

consisted primarily of criminal defense work. The prosecutor's

attempt to strike a fourth person, Deirdre Pritchett, drew a Batson

challenge from defense counsel because Pritchett was "the only

African-American person in the jury." When the prosecutor

attributed the challenge to Pritchett's "relatives who were

involved with criminal offenses," defense counsel pointed out that

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Pritchett was not close with those family members and that a white

juror whom the government did not strike had a friend who had been

in jail. She criticized the justification as a pretext for a race-

based motive. The district court told the prosecutor that it was

"inclined to agree" with Mensah's counsel: "I don't see that your

reasons stated are sufficient to overcome the fact that she

apparently is the only person of color in the whole venire."

The government then withdrew its strike "in an abundance

of caution," and Ms. Pritchett was seated. The prosecutor,

however, immediately moved to exclude an Asian-American potential

juror named Yuqing Zhang. The defense again objected on Batson

grounds, arguing that the government was attempting to exclude

Zhang from the jury based on his race. The government proffered

that it sought to exclude Zhang because he was a professor at

Boston University Medical School with an expertise in biology and

might be "too scientific" in his application of the reasonable

doubt standard. The district court overruled the defense's

objection, and Zhang became the government's final strike during

the first round. The defense also exercised four peremptory

challenges during that round.10

After the court clerk re-filled the seats vacated by the

struck jurors and the sidebar discussions and occupation inquiries

10
The district court did not allow "back strikes," meaning
that counsel could not strike jurors in later rounds that they had
accepted in the earlier rounds.

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were completed, the second round of peremptory challenges began

with defense counsel striking a potential juror who was a police

cadet. The government followed by striking a young, single woman

named Kimberly Faria, and the defense then struck another young,

single woman named Mary Conway. The jury box was again re-filled

by adding three individuals, including an Asian-American woman

named Quyen Diep. The sidebar and occupation inquiries followed,

leading into the third round of peremptory challenges.

The government had the first option to challenge in this

round, but passed. The defense then struck two individuals and,

given another opportunity, the government challenged Diep, a young,

single accountant. The defense again objected on Batson grounds,

noting that "[t]his is the second Asian juror who's been seated and

the second Asian juror who[m] [the prosecutor] has struck."

Protesting that the challenge had nothing to do with race, the

prosecutor noted that Diep was single and young. The defense

decried the rationale as pretextual, asserting that there were

"plenty" of single and young people on the jury and noting that the

prosecutor had now sought to exclude both the only African-American

and both Asians. The prosecutor declined the court's invitation to

say more. The judge took a few minutes to consider the matter and,

after resuming the proceedings, asked the prosecutor to restate his

grounds for striking Diep. The prosecutor responded: "She does

appear to be young to me, a young person, and she's a young, single

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person. I question her life experience based on that Judge."

Defense counsel then reiterated that she believed the jury already

included "quite a number of single people." She pointed

specifically to Conway, although Conway had not in fact been seated

on the jury because she was struck by the defendant.

The court allowed the challenge of Diep "on the stated

grounds of the government." The jury box again was refilled, the

preliminaries were performed, and counsel were offered a fourth

round of peremptory challenges. None was exercised. During the

ensuing discussion about various trial matters, defense counsel

noted for the record, in further response to the government's

strike of Diep, that the government had not objected to a white

male juror named Conley, the last individual seated, who also was

young and single. The court, in subsequently announcing that

Conley would be one of the two alternates (because he was the last

juror called), noted in an aside that Conley was not yet in the

jury box when Diep was challenged.

The court returned to the Batson issue at the start of

the next day's proceedings:

[J]ust for the record, with respect to the
impanelment and the Batson challenge that was
made by the defendant with respect to the
admission of the potential juror, Miss Diep,
during voir dire this Court overruled defense
counsel's Batson objection to the prosecutor's
use of a peremptory challenge to strike Miss
Diep . . . on the alleged basis of her race.
The prosecutor offered a race-neutral
explanation for striking Miss Diep that she

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 was young and single and, as a result, had
limited life experience. At the time the
peremptory strike was exercised, Miss Diep was
the only potential juror seated in the jury
box who both appeared to be young and answered
that she was single.

In addition, the prosecution had
previously used a peremptory challenge to
strike Miss Kimberly Faria, . . . who also
appeared to be young and had answered that she
was single. The Court considers the
prosecution's reasoning to be credible and
sustains the peremptory challenge.

Although the court did not reopen the issue for further

consideration, it allowed the attorneys to supplement the record.

Defense counsel clarified that her objection was not solely to

Diep's exclusion, but to the challenge of both potential Asian

jurors. She also reiterated that the government had allowed Conley

to remain on the jury despite a professed objection to young,

single jurors.

The prosecutor countered that Conley was not comparable

to Diep because they had different jobs, and he noted that, when

Conley was seated, the government was saving its last challenge "in

an abundance of caution for somebody . . . very undesirable."

Defense counsel questioned the reliance on different professions,

noting that Diep was an accountant and Conley a financial analyst.

The court made no further rulings and moved on to other matters.

The jury thus consisted of one African-American juror and eleven

white jurors.

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C. Discussion

The forgoing recitation of facts well illustrates "the

practical difficulty" of distinguishing between impermissible

discrimination in jury selection and the prosecutor's legitimate

exclusion of jurors based on their personal characteristics and

background. Dretke, 545 U.S. at 238. As we shall explain, both

views of the prosecutor's choices are plausible here. In the end,

however, it is the very closeness of the question that determines

the outcome of our inquiry.

1. Indications of Discrimination

The numeric evidence in this case is particularly strong

in suggesting that race was a motivating factor in the government's

exercise of its peremptory challenges. The prosecutor struck, or

attempted to strike, all of the non-white members of the venire.

Both Asian-Americans were excluded from the jury, and the

prosecutor was pressured by the court to withdraw the strike of

Deirdre Pritchett -- the only African-American. The prosecutor

also struck the only obviously Hispanic individual, Carlos Alves,

the juror whose mother had been deported in 2005.

In addition, the prosecutor's rationale for striking Diep

-- that she was young and single -- was flimsy in two respects.

First, the prosecutor failed to explain why age and marital status

were pertinent factors here. See Batson, 476 U.S. at 98 ("The

prosecutor . . . must articulate a neutral explanation related to

-22-
the particular case to be tried." (emphasis added)). Even after

defense counsel complained that the strike appeared pretextual

because there were "plenty" of single and young people on the jury,

the prosecutor declined the district court's offer to elaborate on

his reasoning. When the prosecutor subsequently restated his

grounds for the strike at the court's request, the prosecutor added

that he "question[ed] her life experience based on that." Again,

however, he drew no connection between limited life experience and

the crime. Although courts have accepted youth and unmarried

status as legitimate reasons for striking jurors, see, e.g., Rice

v. Collins, 546 U.S. 333, 341 (2006) ("It is not unreasonable to

believe the prosecutor remained worried that a young person with

few ties to the community might be less willing than an older, more

permanent resident to impose a lengthy sentence for possessing a

small amount of a controlled substance."); United States v. Mack,

78 F. App'x 171, 180 (3d Cir. 2003) (stating that "peremptory

challenges based on age and marital status in the context of

narcotics cases are logical and legitimately race-neutral"),

allowing such strikes in the absence of an articulated, plausible

link to the crime at issue creates the potential for a readily

available pretext for discrimination.

Second, the prosecutor chose not to exercise strikes

against at least two potential jurors who, but for their race,

appeared similarly situated to Diep. The prosecutor passed on both

-23-
Conway, a young, single woman, and Conley, a young, single man with

a profession similar to Diep's (he was a financial advisor, she an

accountant). As discussed above, the fact that a prosecutor's

proffered reason for striking a minority juror could have applied

with equal weight to white jurors who were not struck may support

an inference of racial discrimination. See Snyder, 552 U.S. at

483-84. Moreover, although the proffered rationale for striking

Zhang -- a concern about the way a scientist would evaluate

reasonable doubt -- is plausible, the subsequent strike of Diep

continued the prosecutor's pattern of challenging every non-white

juror and thus places that justification in a different light. See

Charlton, 600 F.3d at 55 (Lynch, C.J., concurring) (recommending "a

second look" in such circumstances).

Also, given that this case involves an immigration

offense, we must be sensitive to the racial stereotypes that could

be at play. For example, the fact that many Asian-Americans come

from immigrant communities may lead to the unwarranted assumption

that all Asian-Americans have undue sympathy for non-white

individuals seeking to become United States citizens. While

personal exposure to the immigration system may be an appropriate

basis for a peremptory challenge, we must take care to maintain the

line between such strikes and those that rely solely on racial or

ethnic stereotypes.

-24-
 2. The Non-Discriminatory Inferences

Despite our reservations, we must take into account "all

relevant circumstances," Batson, 476 U.S. at 96, and multiple

factors give a different impression when examined in context.

First, from a numeric perspective, although no Asian-Americans were

left on the jury, there were only two such individuals in the

venire. Hence, with the strike of Zhang unexceptionable on its

own, the elimination of "all" Asian-Americans here is substantially

different from a case in which the numbers are larger and a pattern

is inescapably apparent in the prosecutor's strikes. See, e.g.,

Snyder, 552 U.S. at 476 (prosecutor used peremptory strikes to

eliminate all five black prospective jurors); Dretke, 545 U.S. at

240-41 (prosecutor used peremptory strikes for ten African-American

members of the venire panel, 91 percent of those eligible); Powers,

499 U.S. at 403 (prosecutor used seven of ten peremptory challenges

to strike black members of the jury panel); Sims v. Brown, 425 F.3d

560, 573 (9th Cir. 2005) (prosecutor used eight of first twelve

peremptory challenges to strike four African-American and four

Hispanic venire panelists, leaving no black jurors and one

Hispanic-surnamed individual).11 To be sure, the prosecutor in this

11
We do not mean to suggest that a Batson challenge can
succeed only where large numbers of a protected group have been
excluded from the jury. Indeed, "'[t]he Constitution forbids
striking even a single prospective juror for a discriminatory
purpose[.]'" Snyder, 552 U.S. at 478 (quoting United States v.
Vasquez-Lopez, 22 F.3d 900, 902 (9th Cir. 1994)). Our point is
only that small numbers may affect the weight of the numeric

-25-
case also struck the one identifiably Hispanic juror, Alves, and

attempted to strike the only African-American, Pritchett. But the

Alves strike was plainly appropriate for the neutral reason that

his mother had been deported, and the prosecutor both offered a

facially neutral reason for Pritchett (her incarcerated family

members) and did not persist. Thus, as is common, the numbers

considered in isolation are inconclusive. See generally Charlton,

600 F.3d at 52-53 (cautioning against reliance on "'just numbers

alone'" (quoting Girouard, 521 F.3d at 116)); id. at 55 (Lynch,

C.J., concurring) (noting that "objections based solely on

numerical effects are inherently problematic"); United States v.

Bergodere, 40 F.3d 512, 516 (1st Cir. 1994) ("A defendant who

advances a Batson argument ordinarily should come forward with

facts, not just numbers alone." (internal quotation marks

omitted)).

Second, the comparative evidence is similarly equivocal.

Mensah argues that the prosecutor's explanation that he challenged

Diep because she is young and single is belied by the prosecutor's

failure to strike two other young, single individuals -- Conway and

Conley. In context, however, the demographic equivalence between

those two jurors and Diep is less noteworthy. The prosecutor did

bypass Conway when he had the opportunity to challenge her early in

evidence, particularly where some of the questioned strikes appear
justified by race-neutral reasons.

-26-
the second round. He instead exercised his first peremptory strike

in that round against Kimberly Faria, whom the district court

described as another young, single woman. The very next strike,

however, was by the defendant against Conway. That strike could

fairly be described as predictable given the professions of

Conway's family members: an assistant district attorney (her

father), a judge (her grandfather), attorneys (an aunt and uncle),

and a police officer (another uncle). The prosecutor, therefore,

had little opportunity -- or incentive -- to strike Conway before

the defendant eliminated her.

Moreover, the strike of Faria appeared consistent with

the prosecutor's "young and single" rationale for striking Diep.

Faria, a teacher's assistant, had answered none of the opening

questions affirmatively and, hence, had no other revealed

objectionable characteristics. Conley, meanwhile, was seated when

the government had only one remaining strike.12 The prosecutor's

explanation that he was being cautious about exercising his final

peremptory challenge, which would have meant seating a replacement

juror whom the prosecutor would have no opportunity to strike, is

on its face plausible. See Dretke, 545 U.S. at 249-50 (noting the

prosecutors' need "to exercise prudent restraint in using strikes"

late in the jury-selection process). The prosecutor reasonably

12
The government had a total of seven peremptory strikes; the
defendant had eleven.

-27-
could have chosen to stick with a young, single financial analyst

to avoid the risk of a juror who, for example, had a family member

or close friend involved in immigration proceedings -- as had two

prior venire members whom the prosecutor had struck (Alves,

described above, and Joseph Leary, whose girlfriend was in the

process of "fighting for amnesty" from Honduras).13

3. The District Court's Evaluation

Given the competing inferences that could be drawn from

the prosecutor's exercise of peremptory challenges, the district

court's on-the-scene assessment looms large. To its credit, the

court took the Batson issue seriously and carefully considered the

circumstances. It balked at the strike of Pritchett and likewise

hesitated when defense counsel objected to the strike of Diep,

halting the proceedings and then asking the prosecutor to restate

his grounds for the strike. Before allowing the strike, the court

probed defense counsel's objection that other single young persons

had been seated. It revisited its initial ruling the next day,

making explicit its previous implicit finding that the prosecutor

had genuinely relied on Diep's age and marital status.

Although we commend the court's diligence, it might

ideally have gone a step further. The court did not explicitly

respond to defense counsel's repeated urging that the strikes of

13
Two potential jurors who had not yet been seated had
responded affirmatively when asked to indicate if they had such a
relationship.

-28-
both Asian-Americans be evaluated together. That gap, in

combination with the prosecutor's failure to explain how the young-

and-single rationale related in any way to the particulars of this

case, leaves us with some lingering concern. See United States v.

Perez, 35 F.3d 632, 636 (1st Cir. 1994) (urging trial judges not

only to state whether they "find[] the proffered reason for a

challenged strike to be facially race neutral or inherently

discriminatory," but also "why [they] choose[] to credit or

discredit the given explanation"). Yet, this is not a case where

"[t]he strikes correlate[d] with no fact as well as they correlate

with race." Dretke, 545 U.S. at 266. Rather, the evidence permits

competing plausible interpretations. See Lara, 181 F.3d at 195.

Given the defendant's burden of persuasion, and the deference owed

to the district court's assessments of credibility and demeanor, we

cannot conclude that the court clearly erred in finding that no

improper discrimination occurred. See Rice, 546 U.S. at 343

(Breyer, J., concurring) (observing that appellate courts "must[]

grant the trial courts considerable leeway in applying Batson"

because, "in a borderline case," the trial judge is best situated

to decide if "a prosecutor's hesitation or contradiction reflect

(a) deception, or (b) the difficulty of providing a rational reason

for an instinctive decision"); Lara, 181 F.3d at 195 ("[W]hen the

evidence gives rise to competing interpretations, each plausible,

-29-
the factfinder's choice between them cannot be clearly

erroneous.").

We therefore affirm the district court's rejection of

appellant's Batson challenge.

IV.

Mensah argues that the jury instructions given by the

district court erroneously defined multiple essential elements of

the crimes implicated in the charge that he violated 18 U.S.C.

§ 1425(a). Section 1425(a) itself makes it a crime to knowingly

procure, "contrary to law, the naturalization of any person." The

indictment alleged that Mensah knowingly procured naturalization

"contrary to law" because he had knowingly made false statements

under oath in his application and interview, in violation of 18

U.S.C. § 1015(a). The identified false statements were that (1) he

had never knowingly committed any crime for which he had not been

arrested and (2) he had not used other names while he was a

permanent resident, the latter assertion implied from his response

"N/A" to the application question about other names.14 According

to the government, the crime that Mensah falsely denied committing

was knowingly making a false or fraudulent statement in a matter

within the jurisdiction of the United States, in violation of 18

14
The "question" was in the form of a request for "[o]ther
names used since you became a permanent resident (including maiden
name)."

-30-
U.S.C. § 1001(a)(2). The underlying statement was the fraudulent

visa application Mensah filed under the Appiah name.

Mensah and the government submitted numerous proposed

jury instructions to the court to cover the elements of section

1425(a) in the context of this layered trio of crimes. Mensah

asserts three errors in the court's choices: (1) improperly

refusing to give his requested instruction on when a statement may

be deemed "false," (2) erroneously defining "under oath," and (3)

giving an "unlawful procurement" instruction that impermissibly

relieved the government of its burden of proof as to that element.

We consider each of these in turn.

A. The False Statement Instruction

Focusing on his "N/A" response, Mensah contends that the

district court, by giving an inadequate explanation of when a

statement may be found "false," misstated the government's burden

to prove falsity. The court instructed the jury that "[a]

statement is false if it was untrue when made." Mensah asserts

that the court should have given a much more elaborate description

of falsity, telling the jurors, inter alia, that the government

needed to prove that "what he said was false," that "[i]t is

insufficient for the government to prove that his statement implied

something that was not true," and that proof of a false statement

requires "pro[of] beyond a reasonable doubt that the statement was

false under any objectively reasonable interpretation of the

-31-
question and answer." Mensah also proposed an ambiguity

instruction, which included the following: "Even an answer that is

deliberately evasive or misleading is not false, unless it is false

on its face. Nor is an unresponsive answer false. It is up to the

person asking the question to clarify an ambiguous or evasive

answer."

A trial court's rejection of proposed instructional

language is reversible error "only in the 'relatively rare case' in

which 'the requested instruction was (1) substantively correct; (2)

not substantially covered elsewhere in the charge; and (3)

concerned a sufficiently important point that the failure to give

it seriously impaired the defendant's ability to present his or her

defense.'" United States v. Gonzalez, 570 F.3d 16, 21 (1st Cir.

2009) (quoting United States v. Prigmore, 243 F.3d 1, 17 (1st Cir.

2001)). This is not such a case.

Mensah argues, in effect, that the district court should

have advised the jury that his "N/A" reply could not be found false

unless it was literally untrue, and that it was not enough to find

that his response was misleading, evasive, unresponsive, or

ambiguous. Such an instruction, however, would have been at least

misleading, and arguably incorrect. Imprecision or incompleteness

in an answer to a straightforward inquiry -- such as the request

for "other names used" -- does not foreclose a finding of falsity.

See, e.g., United States v. Boskic, 545 F.3d 69, 87 (1st Cir. 2008)

-32-
(noting that a jury can properly find falsity based on incomplete

answers). Mensah does not argue that the question he was asked

about other names was ambiguous, and therefore his invocation of

United States v. Rowe, 144 F.3d 15 (1st Cir. 1998), does not help

him. See id. at 21 ("[I]n a false statement prosecution, an answer

to a question is not fraudulent if there is an objectively

reasonable interpretation of the question under which the answer is

not even false." (emphasis added)). In addition, Mensah has never

claimed that "N/A" was a literally true statement that could not

properly be found "false on its face."15

Hence, instructing the jury on literal truth or falsity,

ambiguity, or any similar linguistic defense would have run the

risk of sending the jury off track. Indeed, the government's

argument could not have been more straightforward: because Mensah

had created a second identity as Appiah, he made a false statement

when he wrote that the inquiry about other names was "not

applicable." On this record, then, the only pertinent focus of the

jury's deliberations -- as the district court properly instructed

-- was to determine whether "N/A" was an "untrue [statement] when

made."

15
The absence of such a claim renders inapt his reliance on
Bronston v. United States, 409 U.S. 352 (1973), and United States
v. Finucan, 708 F.2d 838 (1st Cir. 1983), regardless of whether the
literal truth defense articulated in those cases may be
"appropriately invoked outside the context of adversary
questioning," Boskic, 545 F.3d at 92.

-33-
 Moreover, the district court's rejection of his proposed

instruction did not prevent Mensah from presenting his theory of

falsity to the jury. Specifically with respect to "N/A," counsel

argued that it could not be a false statement because his INS

interviewer, Saucier, testified that he did not know what the

abbreviation meant, and Saucier never asked Mensah to explain his

response. In effect, counsel asked the jury to conclude that "N/A"

for Mensah had no particular meaning -- and could therefore not be

deemed "false." In this regard, counsel stated: "Now, 'N/A' sounds

like something a lawyer might put down and not have reviewed until

after Mr. Mensah signed the application." The jurors thus heard

the gist of Mensah's argument that he could not be found guilty

unless "what he said was false."

Accordingly, we find neither error in, nor harm from, the

court's refusal to give Mensah's requested falsity instruction.

B. The Definition of "Under Oath"

Mensah asserts that the district court failed to properly

instruct the jury on the element of section 1015(a) requiring that

the prohibited false statement be made "under oath."16 He maintains

that a statement is made "under oath" only if it is given after a

16
For convenience, we repeat here the text of section 1015(a):

Whoever knowingly makes any false statement under oath,
in any case, proceeding, or matter relating to, or under,
or by virtue of any law of the United States relating to
naturalization, citizenship, or registry of aliens [is
guilty of a crime].

-34-
verbal warning, from an authorized person, that falsity will be

prosecuted as perjury. The district court rejected that narrow

construction of the requirement, and instructed the jury as

follows:

A statement is made under oath if the
defendant took an oath to testify truly before
an agency[] authorized by law to administer
oaths or if the defendant, under penalty of
perjury, subscribed as true written
information submitted to the agency.

Although Mensah acknowledges that the instruction as given followed

accepted practice, see Leonard B. Sand, et al., 2-33 Modern Federal

Jury Instructions-Criminal ¶ 33.02 (Instruction 33-11), he claims

that it improperly "ignore[d] the distinction between swearing an

oath before a qualified official and endorsing a document under a

written perjury warning."

We disagree that the distinction between a sworn oath

following a verbal warning and a written declaration expressly

made subject to perjury matters here. Although making a statement

"under oath" commonly is associated with a verbal swearing -- such

as that traditionally required of witnesses at a trial -- federal

law recognizes that oaths may be in writing and treats a written

statement "subscribed . . . as true under penalty of perjury" as

equivalent to such a penned oath. 28 U.S.C. § 1746.17 Mensah cites

17
Section 1746, with highlighting reflecting the assumption
that an oath may be in writing, states in pertinent part as
follows:

-35-
no precedent holding that the oath element of section 1015(a) may

be satisfied only with proof of a verbal warning or oath, and we

see no rationale for excluding the oath requirement in that

provision from the reach of section 1746.

Indeed, the generic legal definition of an "oath" makes

no reference to a verbal act. Black's Law Dictionary defines an

oath as "[a] solemn declaration, accompanied by a swearing to God

or a revered person or thing, that one's statement is true or that

one will be bound to a promise." Black's Law Dictionary 1101 (8th

ed. 2004). Federal Rule of Evidence 603, which states that a

witness "must give an oath or affirmation to testify truthfully,"18

is similarly general. The Rule provides that the requisite

declaration "must be in a form designed to impress that duty on the

witness's conscience" -- but does not say that only a verbal

Wherever, under any law of the United States or under any
rule, regulation, order, or requirement made pursuant to
law, any matter that is required or permitted to be
supported, evidenced, established, or proved by the sworn
declaration, verification, certificate, statement, oath,
or affidavit, in writing of the person making the same
(other than a deposition, or an oath of office, or an
oath required to be taken before a specified official
other than a notary public), such matter may, with like
force and effect, be supported, evidenced, established,
or proved by the unsworn declaration, certificate,
verification, or statement, in writing of such person
which is subscribed by him, as true under penalty of
perjury, and dated . . . .
18
Black's defines an "affirmation" as "[a] pledge equivalent
to an oath but without reference to a supreme being or to
'swearing.'" Black's Law Dictionary 64. Under federal law,
reference to an oath includes an affirmation. See 1 U.S.C. § 1.

-36-
warning or response suffices. Hence, it appears that the inquiry

into whether an oath has been given is routinely treated as a

question of substance rather than form: "[it] turns on whether the

declarant expressed the fact that he or she is impressed with the

solemnity and importance of his or her words and of the promise to

be truthful, in moral, religious, or legal terms." United States

v. Bueno-Vargas, 383 F.3d 1104, 1110 (9th Cir. 2004).

Section 1746 thus reflects an accepted view of the "under

oath" requirement in allowing a written statement made under

penalty of perjury to substitute for a formal oath. See Bueno-

Vargas, 383 F.3d at 1111 (holding that "signing a statement under

penalty of perjury satisfies the standard for an oath or

affirmation"); 2 Wayne R. LaFave, Search and Seizure § 4.3(e), at

659 (5th ed. 2012) (noting that, to satisfy the Fourth Amendment's

"Oath or affirmation" clause, "the 'true test' is whether the

procedures followed were such 'that perjury could be charged

there[o]n if any material allegation contained therein is false'"

(quoting Simon v. State, 515 P.2d 1161, 1165 (Okla. Crim. App.

1973)). Mensah signed the following statement on his

naturalization application: "I certify . . . under penalty of

perjury under the laws of the United States of America that this

application, and the evidence submitted with it, is all true and

correct." Given section 1746 and the other legal authority

described above, it is plain that the district court properly

-37-
instructed the jury on the "oath" element of section 1015(a). Cf.

Bueno-Vargas, 383 F.3d at 1112 ("Because [the declarant] gave the

Statement under penalty of perjury, [he] knew that he was making a

solemn promise . . . that all the information he was providing was

true and correct.").19

C. The Unlawful Procurement Instruction

The central element of Mensah's crime of conviction, 18

U.S.C. § 1425(a), is the knowing "procure[ment], contrary to law,"

of naturalization. Mensah's proposed instruction on unlawful

procurement was as follows:

To establish this element [that
defendant procured naturalization as a result
of the false testimony] the government must
prove that defendant obtained United States
citizenship as a result of the
misrepresentations alleged in the Indictment.
This means that the government must prove that
if the defendant had provided the immigration
authorities with truthful evidence, the
authorities would have determined that he was
statutorily ineligible for citizenship.

The court instead gave the following instruction:

[T]he government must prove that if the
defendant had provided the Immigration
authorities with truthful information it would
have raised a fair inference that defendant
was not eligible for naturalization.

19
As the government points out, Mensah did make at least one
false statement subject to a verbal oath. Saucier, the immigration
officer, administered an oath at the outset of Mensah's
naturalization interview. Mensah stated during that interview that
he had never knowingly committed a crime for which he had not been
arrested.

-38-
 Mensah argues that the court's instruction was flawed

because the jurors should have been told that they needed to find

a "but for" connection between any misrepresentations and the grant

of citizenship -- and not merely that it would be "fair to infer"

such a connection. He asserts that the court's instruction

improperly shifted the burden of proof by including an evidentiary

presumption in favor of the government, allowing conviction without

a showing that he had in fact procured naturalization "contrary to

law." Mensah argues that the government needed to prove beyond a

reasonable doubt (1) that he was ineligible for citizenship, (2)

how he was ineligible, and (3) the alleged misrepresentations that

obscured this ineligibility.

In rejecting Mensah's instruction, the district court

relied on Kungys v. United States, 485 U.S. 759 (1988), a fractured

decision in which the Supreme Court considered, inter alia, when a

misrepresentation is "material" in the context of naturalization

challenges and when such a misrepresentation "procured" a

naturalization certificate within the meaning of the statute.20

The Court majority concluded that the materiality inquiry was

20
The statute at issue in Kungys was a civil provision, 8
U.S.C. § 1451(a), which requires revocation of citizenship when
naturalization was "illegally procured or [was] procured by
concealment of a material fact or by willful misrepresentation."
As noted above, the criminal statute at issue here provides that
"[w]hoever knowingly procures or attempts to procure, contrary to
law, the naturalization of any person, or documentary or other
evidence of naturalization or of citizenship" is guilty of a crime.
18 U.S.C. § 1425(a).

-39-
"whether the misrepresentation or concealment . . . had a natural

tendency to affect[] the official decision." Id. at 771; see also

id. at 772 (describing the inquiry as "whether [the concealments or

misrepresentations] had a natural tendency to influence the

decisions of the Immigration and Naturalization Service").

The more complex part of Kungys was the discussion on

what must be proved, in addition to materiality, to establish that

citizenship was "procured" through misrepresentations. The Seventh

Circuit has summarized well the Court's splintered response to that

inquiry:

The Kungys majority held that there are
"four independent requirements" to the offense
of procuring citizenship by misrepresentation:
"the naturalized citizen must have
misrepresented or concealed some fact, the
misrepresentation or concealment must have
been willful, the fact must have been
material, and the naturalized citizen must
have procured citizenship as a result of the
misrepresentation of concealment." Kungys,
485 U.S. at 767. So a majority of the
Justices agreed that "materiality" and
"procurement" are separate elements, and
satisfaction of one does not necessarily mean
satisfaction of the other. A majority also
agreed that, at a minimum, the procurement
requirement "demands . . . that citizenship be
obtained as a result of the application
process in which the misrepresentations or
concealments were made." Id. at 776. The
Court split, however, over what else
procurement means. Justice Stevens, speaking
for two others, advocated what amounts to a
"but for" test -- that the government has to
establish that citizenship would not have been
conferred but for the misrepresentation.
Justice Scalia, joined by two others, rejected
this construction because it would make the

-40-
 materiality requirement meaningless,
"requiring, in addition to distortion of the
decision [(procurement)], a natural tendency
to distort the decision [(materiality)]." Id.
But Justice Scalia and company did agree that
procurement requires more than just obtaining
citizenship "as a result of the application
process in which the misrepresentation or
concealments were made." To them, proof of a
material misrepresentation created a
presumption that citizenship was procured on
that basis. However, the citizen could rebut
that presumption by showing that she was
actually eligible for citizenship. Justice
Brennan wrote a separate concurrence joining
in Justice Scalia's opinion to make a
controlling plurality. Justice Brennan's
controlling opinion stressed that citizenship
is a "most precious right" and added a more
restrictive gloss to Justice Scalia's view.
Id. at 783 (Brennan J., concurring). Although
Justice Brennan agreed that a material
falsehood can raise a presumption of
ineligibility, he said that presumption does
not arise unless the government produces
evidence sufficient to raise a "fair inference
of ineligibility." Id. At the end of the
day, then, the government only wins if it
shows that the citizen misrepresented a
material fact and it is "fair to infer that
the citizen was actually ineligible."

United States v. Latchin, 554 F.3d 709, 713-14 (7th Cir. 2009)

(citations altered). The Seventh Circuit observed that "[t]his

reading of Kungys is consistent . . . with every federal appellate

decision applying Kungys to a prosecution under 18 U.S.C.

§ 1425(a)." Id. at 714 n.4 (listing cases); see also, e.g., United

States v. Alferahin, 433 F.3d 1148, 1155 (9th Cir. 2006) (accepting

Kungys as applicable to a prosecution under § 1425(a)).

-41-
 The district court in this case adopted Justice Brennan's

approach, requiring the government to establish "a fair inference

that [the] defendant was not eligible for naturalization." Mensah,

however, maintains that Kungys is inapposite in criminal cases. He

asserts that the government's burden to prove the elements of

section 1425(a) beyond a reasonable doubt can be met only with

proof that he was in fact ineligible for naturalization when he

became a citizen -- i.e., the "but for" approach advocated by a

minority in Kungys.

The distinction Mensah attempts to draw between civil and

criminal liability does not work, however, because the Supreme

Court has equated the government's burden of proof in

denaturalization proceedings -- the production of "clear,

unequivocal and convincing evidence" -- with the beyond-a-

reasonable-doubt standard of criminal cases:

[B]ecause of the grave consequences incident
to denaturalization proceedings we have held
that a burden rests on the Government to prove
its charges in such cases by clear,
unequivocal and convincing evidence which does
not leave the issue in doubt. This burden is
substantially identical with that required in
criminal cases -- proof beyond a reasonable
doubt.

Klapprott v. United States, 335 U.S. 601, 612 (1949) (citation

omitted); see also Kungys, 485 U.S. at 795 (Stevens, J., concurring

in the judgment) (noting that "the factors that support the

imposition of so heavy a burden are largely the same in both

-42-
contexts"). Thus, we are persuaded that the "fair inference"

requirement arising from Kungys suffices in the criminal context as

well. See Latchin, 554 F.3d at 713 n.3 (noting that the

distinction between the civil and criminal statutes is "trivial"

given that "both require a material misrepresentation and

procurement of citizenship").

Importantly, the burden of proving unlawful procurement

under the "Kungys instruction" remains with the government. Here,

the jury was told that the government "must prove that if the

defendant had provided immigration authorities with truthful

information it would have raised a fair inference that [he] was not

eligible for naturalization." The government points out that the

court did not tell the jurors to presume ineligibility if the

government proved only that he had lied during the naturalization

process, thereby creating a mandatory presumption that relieved the

government of its burden of proving unlawful procurement. Rather,

the instruction properly demanded that the government prove a

causative link between Mensah's lies and his eligibility, albeit at

a lower level of certainty than Mensah wanted. As always, of

course, the government's burden is to make the requisite showing

beyond a reasonable doubt. In this context, then, the government's

burden was to prove beyond a reasonable doubt that the truthful

information would have raised a "fair inference" of ineligibility

for naturalization.

-43-
 Hence, we hold that the district court did not err in

instructing the jury on unlawful procurement.

V.

At the close of the government's evidence, Mensah moved

for judgment of acquittal under Federal Rule of Criminal Procedure

29. He argued, inter alia, that the evidence adduced by the

government was insufficient to prove that he (1) made the

statements in his naturalization application "under oath," (2) made

a false statement by responding "N/A" when asked if he had used

other names, and (3) had knowingly committed a crime at the time of

his naturalization application and interview. He reiterates each

of those contentions on appeal.

We review de novo the district court's denial of a motion

for judgment of acquittal, taking the evidence and all plausible

inferences in the light most favorable to the verdict. United

States v. Pérez-Meléndez, 599 F.3d 31, 40 (1st Cir. 2010).

A. "Under Oath"

Mensah's argument that the government failed to show

beyond a reasonable doubt that he had made false statements "under

oath" rests on his assertion that the government introduced no

evidence that he was given a verbal warning by an official

authorized to administer such warnings before he signed his

naturalization application. That argument is dispatched by our

-44-
discussion of the alleged error in the oath instruction. See supra

Section IV.B.

B. False Statement

Mensah's attack on the sufficiency of the evidence

showing that he made a false statement similarly overlaps with his

claim of error in the falsity instruction. He argues that the

government produced no evidence that "N/A" was a false response to

the "other names" question and asserts that proof that he failed to

include information on the form or answered the "other names"

question evasively is insufficient to show falsity beyond a

reasonable doubt. He points out that Saucier, the immigration

official who interviewed him, testified that he did not know what

Mensah's "N/A" notation meant and that he did not ask Mensah for

his understanding of the abbreviation.

Our discussion concerning the falsity instruction largely

disposes of the sufficiency issue as well. As explained above, a

jury may properly find that an incomplete answer to an unambiguous

question is false. See Boskic, 545 F.3d at 86-87. The record

amply supports such a finding in this instance, as it was

undisputed that Mensah had used another name to apply for a

diversity visa. That fact permitted the jury to conclude both that

Mensah had falsely asserted that the "other names" question did not

apply to him and that he had given a false answer by omitting the

true information that he had used the Appiah name.

-45-
 Saucier's testimony that he did not know how Mensah or

his attorney understood "N/A" does not undermine such findings.

Mensah offers no interpretation of his own to compete with what we

consider the common understanding that "N/A" denotes "not

applicable." Saucier himself understood it that way. He testified

that he had placed the same notation on another section of the

naturalization form during his interview of Mensah because that

section -- addressing parents who are United States citizens -- was

"[n]ot applicable" to Mensah. Hence, based on both Saucier's

testimony and common knowledge, the jurors reasonably could have

concluded that "N/A" meant "not applicable," and that it was a

false statement in response to the inquiry about other names used

by Mensah.

C. Knowing Commission of a Crime

Mensah's conviction under 18 U.S.C. § 1425(a) rests on

his having knowingly lied in his citizenship application and

interview when he denied that he had committed a crime. On appeal,

Mensah argues that the government failed to prove that he knew he

had committed a crime at the time he answered the pertinent

questions. He specifically challenges the government's evidence

that the Appiah diversity visa application was submitted before he

signed his naturalization application in February 2001, emphasizing

that the Appiah application was undated.

-46-
 This challenge is doubly flawed. First, the evidence

presented by the government allowed the jury to conclude that the

Appiah diversity application was submitted in October 2000.

Although the application itself was undated, the government

introduced an envelope addressed to the diversity visa processing

center, postmarked October 25, 2000, that bore a return address for

Appiah that matched the address on the application. Examining the

envelope and application, the jurors reasonably could have

concluded that the handwriting on the two documents was similar and

that the two had arrived together. In addition, a government

witness testified that the cutoff date to submit applications for

the 2002 diversity visa program was early November 2000. This

evidence permitted the jury to conclude that Mensah mailed the

application in the envelope in October 2000 and, hence, that he had

knowingly lied on his naturalization application in February 2001

and in his interview in August 2001 when he denied having committed

a crime for which he had not been arrested (i.e., applying for a

visa under a false name, in violation of 18 U.S.C. § 1001(a)(2)).21

Second, Mensah does not dispute that he submitted a

21
The government also states that, although the envelope and
application bore different tracking numbers, both numbers were
stamped on the backside of the one-page application. As Mensah
points out, there is no evidence in the record that the document
bearing only the two numbers is a copy of the reverse side of the
single-page diversity visa application. Nonetheless, the page was
included in the Appiah immigration file, and the jury could have
inferred from the juxtaposition of the two numbers that the
processing center viewed the envelope and application as related.

-47-
supplement to the Appiah diversity visa application in June 2001.

On the basis of that document alone, the jury could have found that

he knowingly lied during his naturalization interview in August

2001 when he denied having committed a crime. Indeed, Mensah's

assertion at the August interview that he had "never" knowingly

committed a crime for which he had not been arrested -- made after

Saucier administered a verbal oath, and with knowledge of the false

application -- is sufficient evidence to sustain the verdict

against each of Mensah's sufficiency challenges. See Griffin v.

United States, 502 U.S. 46, 59-60 (1991) (holding that general

verdict stands if the evidence sufficiently supports any of the

charged theories of illegal activity); United States v. Mehanna,

735 F.3d 32, 48 (1st Cir. 2013) (same); United States v. Nieves-

Burgos, 62 F.3d 431, 435-36 (1st Cir. 1995) (same).22

22
Mensah made a different "knowledge" argument before the
district court, pointing to a lack of proof that he knew it was a
crime to apply for a diversity visa under a false name (knowledge
necessary to support a finding that he knowingly lied when he said
he had never committed a crime for which he had not been arrested,
in violation of section 1015(a)). Mensah also argued to the
district court that the evidence failed to show that he knew he was
procuring naturalization "contrary to law," a prerequisite for
conviction under section 1425(a). Mensah resuscitates the first of
these contentions in his reply brief and makes a passing reference
to the latter in his opening brief. Neither warrants our
attention. See United States v. Newell, 658 F.3d 1, 34 (1st Cir.
2011) (noting that "issues raised for the first time in an
appellant's reply brief are generally deemed waived" (internal
quotation marks omitted)); United States v. Espinal-Almeida, 699
F.3d 588, 599 n.9 (1st Cir. 2012) (noting that "issues that are
adverted to in a perfunctory manner absent developed argumentation
are waived" (internal quotation marks omitted)).

-48-
 VI.

Mensah asserts that the district court abused its

discretion in allowing the government to introduce evidence related

to his 2006 arrest for acquiring driver's licenses in two different

names. He claims that this evidence, which concerned actions he

took years after the charged crime, lacked the "special relevance"

necessary to justify its admission and was otherwise inadmissible

because it was more prejudicial than probative. See United States

v. Walker, 665 F.3d 212, 228-29 (1st Cir. 2011). He further

asserts that the error was not harmless.

A. Background

Federal Rule of Evidence 404(b) generally bars the use of

evidence of other crimes or acts to prove "a mere propensity to

behave in a certain way," but permits such evidence where it has

"special relevance," i.e., if it tends to prove such material facts

as knowledge, motive or intent. Walker, 665 F.3d at 229; see also

United States v. Green, 698 F.3d 48, 55 (1st Cir. 2012). Even when

other acts evidence would otherwise be admissible under Rule

404(b), however, the court must ensure that its probative value is

not substantially outweighed by any unfairly prejudicial effect.

Walker, 665 F.3d at 229; see also Fed. R. Evid. 403 (permitting

exclusion of relevant evidence if there is a danger of, inter alia,

"unfair prejudice, confusing the issues, . . . or needlessly

presenting cumulative evidence").

-49-
 Before trial, the government moved to admit a variety of

evidence related to Mensah's 2006 arrest. The district court

allowed admission of some of the evidence, including the fact of

the arrest and the items found in Mensah's car bearing the Appiah

name (a checkbook, an insurance bill, etc.), "for the limited

purpose of establishing defendant's knowledge, motive, intent or

lack of mistake" in undertaking the actions charged in this case.

The court, however, excluded evidence about the state prosecution

itself, deeming it unfairly prejudicial.23

At the request of both parties, the district court

instructed the jury on how to view the driver's license-related

evidence:

The government has offered evidence
that Mr. Mensah obtained Massachusetts
driver's licenses in two different names --
David Mensah and Willberforce Appiah -- and
that he was arrested for that offense in 2006.
The government also has offered evidence that
Mr. Mensah possessed documents bearing both
names at the time of his 2006 arrest.

The defendant is not on trial for that
conduct which occurred years after the events
charged in the Indictment. You may not
consider that evidence as proof that the
defendant has committed the crime charged or
as proof that the defendant has a criminal
personality or bad character. You may,
however, consider the uncharged conduct in
determining whether the government has proved

23
The court also excluded other evidence that the government
sought to use, including materials in the Appiah immigration file
and documents seized from Mensah during an airport inspection in
2008.

-50-
 beyond a reasonable doubt that in doing the
act charged in the Indictment the defendant
acted knowingly and intentionally and not
because of some mistake, accident or other
innocent reason.

On appeal, Mensah reiterates that the government had no

legitimate need for the driver's license evidence, and he argues

that its introduction created an "unacceptably high" risk of an

impermissible propensity inference, i.e., that he is the type of

person who submits fraudulent documents to government agents. In

response, the government argues that the evidence was important to

rebut Mensah's primary defense that he did not knowingly do

anything wrong and, limited in that way, did not risk unfair

prejudice.

We review for abuse of discretion a district court's

ruling that evidence may be admitted consistently with Rules 404(b)

and 403. United States v. Appolon, 715 F.3d 362, 373 (1st Cir.

2013).

B. Discussion

We are unpersuaded by Mensah's efforts to wall off his

actions to create a second identity in 2001 from the unlawful use

five years later of his fraudulently created alter ego,

Willberforce Appiah. Mensah's defense at trial heavily rested on

technical arguments about whether he had the requisite knowledge,

at the pertinent time, of the criminal nature of his efforts to

gain lawful immigrant status in a second name. The evidence that

-51-
he later secured a fraudulent driver's license in the Appiah name

and that he conducted day-to-day affairs under both names

reinforces the inference that he acted in 2001 with the deliberate

intent to create a second, false identity and, hence, that he

knowingly lied when he denied having used other names. Certainly,

the district court did not abuse its discretion in seeing such a

link and finding that the evidence had probative value.

In so concluding, we do not minimize Mensah's concern

about the jury's use of the evidence. The charged three-layered

immigration crime was complex, and, by contrast, the challenged

driver's license evidence provided straightforward proof that

Mensah had unlawfully used two identities on another occasion. The

risk of prejudice in the form of an impermissible propensity

inference plainly existed.

The district court, however, took steps to limit any such

adverse effect, excluding portions of the proffered evidence that

it deemed cumulative or unduly prejudicial. Importantly, the

court's cautionary instruction could not have been clearer. It hit

all the right notes: emphasizing that Mensah was not on trial for

his later conduct, that the 2006 arrest and surrounding

circumstances did not prove that he committed the immigration

crime, that the evidence of those events was out-of-bounds except

on the question of Mensah's state of mind, and that the government

needed to prove beyond a reasonable doubt that the defendant acted

-52-
knowingly and intentionally. See United States v. Mare, 668 F.3d

35, 40 (1st Cir. 2012) (noting that trial courts will often provide

a limiting instruction to minimize the risk that jurors will

perceive "multiple-use evidence" as propensity evidence).

It hardly bears repeating that evidence harmful to the

defendant is not necessarily unfairly prejudicial, see, e.g.,

United States v. Williams, 717 F.3d 35, 41 (1st Cir. 2013), or that

we afford substantial deference to the district court's judgment

that the probative value of evidence is not substantially

outweighed by the danger of unfair prejudice, see, e.g., Mare, 668

F.3d at 39. Here, the court's careful approach offset the risk of

unfair prejudice, and we therefore conclude that its decision to

admit certain of the post-2001 evidence was not an abuse of

discretion.

VII.

For the reasons that we have explained, each of Mensah's

claims is unavailing. We therefore affirm his conviction.

So ordered.

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