The opinion of the court was delivered by: LEWIS A. KAPLAN
LEWIS A. KAPLAN, District Judge.
The indictment in this case charges the defendant with two counts of making false statements under oath in a petition for naturalization, in violation of 18 U.S.C. § 1015(a), and two counts of procuring naturalization contrary to law, in violation of 18 U.S.C. § 1425(a). Defendant now moves, on the eve of trial, to dismiss the indictment on the grounds that (1) the false statement counts fail to state an offense in that they fail to allege that the alleged false statements were material, and (2) the Section 1015(a) counts charge the same conduct as the Section 1425(a) counts and therefore are multiplicitous.
Count 1 of the indictment charges that the defendant violated Section 1425(a) by attempting, on or about July 24, 1990, to procure naturalization contrary to law in that "in an application to file a petition for naturalization he falsely stated under oath than he had never been arrested or convicted for violating any law." Count 3 charges that he violated Section 1015(a) in that on or about July 24, 1990 he knowingly made a false statement under oath in a matter relating to naturalization, "to wit, in an application to file a petition for naturalization he falsely stated under oath than he had never been arrested or convicted for violating any law." Counts 2 and 4 are precisely parallel except that they refer to false statements allegedly made on or about April 16, 1991. Thus, the conduct allegedly forming the basis for each Section 1015(a) count is identical to that forming the basis for the corresponding Section 1425(a) count.
Defendant moves to dismiss Counts 1 and 2, the Section 1425(a) charges, on the theory that they fail to allege an offense. The argument is this: In order to be "contrary to law," a false statement used in an effort to procure naturalization must be material. United States v. Puerta, 982 F.2d 1297 (9th Cir. 1992). Willful omission of a criminal record, without more, does not establish illegal procurement of naturalization. Chaunt v. United States, 364 U.S. 350, 5 L. Ed. 2d 120, 81 S. Ct. 147 (1960). Hence, the allegation that defendant falsely stated that he had no criminal record does not suffice to charge a violation of Section 1425(a) because there is no allegation of materiality. The argument, although creative, is without merit.
The linchpin of defendant's argument is Puerta and its holding that an attempt to procure naturalization by means of a false statement is "contrary to law," and thus a violation of Section 1425(a),
only if the false statement is material. But Puerta is unpersuasive, particularly given the established law of this circuit on an analogous point.
To begin with, Section 1425(a), unlike the perjury statute, 18 U.S.C. § 1623, does not contain an express requirement of materiality. As the Second Circuit has said, "it is of doubtful wisdom, not to say potentially dangerous, to import conditions into a penal statute which appear to have been studiously omitted by the lawmakers themselves." United States v. Silver, 235 F.2d 375, 377 (2d Cir.), cert. denied, 352 U.S. 880, 1 L. Ed. 2d 80, 77 S. Ct. 102 (1956). Moreover, in view of the Second Circuit's repeated holdings that materiality is not an element of the false statement offense under 18 U.S.C. § 1001,
a false statement to a federal officer or agency may be "contrary to law" irrespective of its materiality, contrary to the premise of Puerta. And there is nothing incongruous in such a holding. As the Silver panel explained:
"There is properly a distinction between a scheme of concealing or covering up a 'material fact' and the making of a false, fictitious, or fraudulent statement. An attempt to conceal or cover up may properly be limited only to facts which are important and material. On the other hand, a fact deliberately or willfully misstated in a matter of appropriate governmental inquiry seems properly punishable even if it is only a gratuitous red herring. As such it can of course obstruct, delay, or deflect an inquiry which is pressing home to uncover fraud upon the government." 235 F.2d at 377.
Accordingly, the motion to dismiss Counts 1 and ...