8.49 FALSE IMPERSONATION OF CITIZEN OF UNITED STATES (18 U.S.C. § 911)
The defendant is charged in [Count _______ of] the indictment with misrepresenting [himself] [herself] to be a citizen of the United States. In order for the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:
First, the defendant directly and falsely represented [himself] [herself] to be a citizen of the United States;
Second, the defendant was not a citizen of the United States at that time;
Third, the defendant made such false representation willfully, that is, the misrepresentation was voluntarily and deliberately made; and
Fourth, the false representation was made to someone who had good reason to make inquiry into defendant’s citizenship status.
In United States v. Anguiano-Morfin, 713 F.3d 1208 (9th Cir.2013), the Ninth Circuit explained that, when a defendant charged with falsely impersonating a United States citizen relies on the defense that he genuinely believed that he was a United States citizen, the "best course" is to instruct the jury that the government must prove beyond a reasonable doubt that the defendant knew that his claim to United States citizenship was false, and that a "reasonable doubt as to whether the defendant knew his claim to United States citizenship was false" must result in an acquittal. Id. at 1210. The Ninth Circuit explained that in such cases the jury instructions should make clear that the defendant’s subjective belief is the dispositive issue. Id.
In United States v. Karaouni, 379 F.3d 1139, 1144 (9th Cir.2004), the Ninth Circuit held that the representation must be "direct" and that a statement from which United States citizenship could be inferred is insufficient. "Willfully" requires proof "that the misrepresentation was deliberate and voluntary." Id. at 1142. The fourth element is required by Ninth Circuit case law limiting the reach of the statute to avoid First Amendment overbreadth issues. Id. at 1142 n.7.