JOHN L. KANE, District Judge.
On October 11, 2013, following a four day jury trial, Defendant Kefelegne Alemu Worku (hereafter "Worku") was convicted of three crimes: Unlawful Procurement of Citizenship or Naturalization; Aggravated Identity Theft; and Fraud and Misuse of Visas, Permits, and Other Documents. The maximum term of imprisonment on the Unlawful Procurement charge is ten years. The charge of Aggravated Identity Theft carries a mandatory penalty of two years' imprisonment, which must be consecutive to the Unlawful Procurement sentence. The third charge of Fraud and Misuse of Visas, Permits and Other Documents carries a maximum of ten years. A term of supervised release not to exceed three years on Counts 1 and 3 and one year on count two may likewise be imposed with the proviso that all supervised release terms shall run concurrently. The maximum fine that can be imposed is $250,000 per count which can be waived and a mandatory special assessment of $100 per count which cannot be waived.
The gravamen of the charges for which Worku was convicted was his fraudulent entry into the United States by using false and misleading documents purporting to identify himself as another. His plan was executed in Kenya, where he had lived for approximately 13 years after fleeing his native Ethiopia. While in Kenya, Worku assumed the identity of another man, claimed parenthood of that man's children and obtained refugee status under that man's identity. In 2004 he gained entry into the United States using that false identity and providing additional false documents. Continuing with that fraud, he was granted permanent refugee status in 2008 and U.S. citizenship in March 2010. The false identity under which Worku was granted citizenship was that of Habteab Berhe Temanu, deceased, who was also a native of Ethiopia.
Information contained in an Affidavit in Support of Search Warrant of Worku's residence, signed by a magistrate judge, provides the following background on the political environment in Ethiopia in the late 1970's giving rise to the facts in this case:
While the sentencing judge is not required to impose a sentence within the Guidelines range,
The Probation Office of the District of Colorado has calculated the Guideline imprisonment range, and neither the Government nor the Defense has objected to the accuracy of those calculations. Worku has filed 31 objections to the Presentence Report, but none relates to the calculations. I have reviewed the calculations and agree they are correct. The Guideline range for Counts One and Three is zero to six months. For Count Two the Guideline sentence is the minimum term of imprisonment required by statute: 24 months consecutive. The term of supervised release is not more than three years for Counts 1 and 3 and one year for Count 2. According to statute multiple terms of supervised release must run concurrently. 18 U.S.C. § 3624 (e). Worku is ineligible for probation on all counts. The Guideline range for a fine is $1,000 to $10,000 and the costs of prosecution are required to be imposed on the defendant. If, however, a defendant is impecunious, the fine may be waived. The same applies to the expected costs of the government for any term of imprisonment and supervised release. The most recent data provided by the Administrative Office of the U.S. Courts is $79.31 per day for imprisonment and $9.17 per day for supervised release. A special assessment of $100 per count for each of the three counts is mandatory. 18 U.S.C. § 3013. No restitution is owing in this case.
More than 30,000 Ethiopians live in the Denver metropolitan are. Many of these people live in the eastern part of Denver or directly east in the adjoining City of Aurora. On May 11, 2011, Kiflu Ketema, a naturalized United States citizen born in Ethiopia, received a call from his brother, Samuel, to go to an Ethiopian restaurant in Aurora known as the Cozy Café. Samuel alerted Kiflu that he had seen an older man at the restaurant whom he suspected had been an official at an Ethiopian political prison in which Kiflu had been imprisoned in the late 1970's. This former official was rumored to be in the Denver area, but Samuel, having never seen him in Ethiopia, was unsure of the identity.
When Kiflu drove to the restaurant the man was standing outside, smoking and talking on a cell phone. Kiflu immediately recognized him, by face and voice, to be Kefelegne Alemu Worku, a notorious official from the Higher 15 prison in Addis Ababa, Ethiopia. Kiflu had witnessed Kefelegne Alemu Worku torture political prisoners who opposed the regime in power, then known as the Red Terror.
A few days after seeing Worku, Kiflu Ketema reported his discovery to Special Agent Jeffrey Lembke of the U.S. Department of Homeland Security, Immigration and Customs Enforcement (ICE), Homeland Security Investigations (HSI). Special Agent Lembke traced the license plate number and found the car was listed to Habteab B. Temanu. He then reviewed the Alien file (A-file) maintained in the U.S. Citizenship and Immigration Services (CIS) database for Habteab B. Temanu. Those records reflected that Habteab B. Temanu entered the United States from Kenya as a refugee on July 12, 2004 and that he had traveled to this country with four children he claimed were his own — Yishak Habteab Berhe, Amanuel Habteab Berhe, Meraf Habteab Berhe, and Tans Berhe.
Special Agent Lembke took a photograph of Habteab Berhe Temanu from the A-file and compiled a photographic line-up of it and five other photographs of Ethiopian males similar in age to Worku. Kiflu Ketema identified Worku's photograph as that of the person he knew to be Worku.
Kiflu Ketema testified at the trial that he saw Worku, whom he knew as Kefelegne Alemu, participating in beating political prisoners at the Higher 15 prison. He had heard Worku say such things as, "I am going to hit him and dump him." He testified further that he knew Worku to be "a big fish" at the Higher 15 and that he was the "most feared"of those in control. He identified Worku and testified he did so with one hundred percent certainty.
Samuel, the eldest son of Habteab Berhe Temanu, came to the United States from Ethiopia in 1995 on a diversity visa. He became a naturalized citizen in 2001. In 2000 he had sought to sponsor his father's and his younger siblings' immigration from Ethiopia to the United States. He was concerned for their safety because between 1997 and 2000 there was an armed conflict between Ethiopia and Eritrea, a former part of Ethiopia. It was common for Ethiopia to send fighting-aged males with Eritrean blood back to Eritrea and his father, Habteab Berhe Temanu, was from Asmara in present day Eritrea. The father and Samuel's youngest brother, aged 14, had been sent back to Eritrea. This brother had been forced to join Eritrean armed forces and was killed.
Fearing for his other siblings, Samuel convinced them to leave Ethiopia and go to Kenya where they could obtain refugee status and apply for admission to the United States. His father left Eritrea and joined them in Kenya, but his physical and mental states had deteriorated to such an extent that the family feared he could not successfully complete the required in-person refugee interviews.
To obtain refugee visas, interviews are required. Children of a refugee can qualify in the same application process as a parent if their relationship is established by the submission of biographical information and identification by the principal applicant. Samuel Berhe's fears, however, were well-founded. Habteab Berhe Temanu was so demented that he was unable to recall his children's names or dates of birth and his children's derivative status could not be established without his being interviewed. Searching for a way out, the siblings found a broker in Kenya who was in the business of connecting people with vacant refugee spots for a fee. He introduced them to Worku who thereupon falsely assumed the identity of Habteab Berhe Temanu. The father later returned to Eritrea where he died on March 29, 2005. Worku learned the children's names and dates of birth, participated in the interviews as if he were their father and immigrated to the United States with Samuel Berhe's four remaining siblings.
Once in the United States, Samuel, his siblings and Worku, known to the family as "Tufa," resided in Denver, Colorado for about seven months. Samuel, Amanuel and Meraf Berhe each identified Worku at trial as the man who immigrated with them using their father's name and identity and lived with them in Denver. They also testified that their biological father was dead.
While in Colorado, Worku filed Form I-485, Application to Register Permanent Residence or Adjust Status, with the official immigration authority. In the application he identified his children as Samuel Habteab Berhe, who had sponsored the family's immigration and Yishak Habteab Berhe, Amanuel Habteab Berhe, Meraf Habteab Berhe, and Tans Berhe, the four children who had traveled with him from Kenya. He represented himself to be Habteab Berhe Temanu. As proof of identification for the application, Worku presented a Colorado driver's license and a social security card in the name of Habteab Berhe Temanu. On January 19, 2008, Worku's completed form I-485 was approved and he was granted permanent residency in the United States and a Permanent Resident Card. The mailing envelope for that card was recovered from Worku's apartment when a search warrant was executed on August 24, 2012. On the same date, at the time of his arrest, the Colorado driver's license and the social security card bearing the name of Habteab Berhe Temanu were recovered from Worku's wallet.
On November 22, 2009, Worku, while still residing in Colorado, filed Form N-400, Application for Naturalization, in which he submitted the same fictitious biographical and family information. On March 2, 2010, the Application was approved and he was granted United States citizenship. As proof of identification for this application, Worku submitted his Permanent Resident Card and the Colorado driver's license, each bearing the name of Habteab Berhe Temanu. He was issued Certificate of Naturalization number 32776687. He retained possession of the Permanent Resident Card until he was required to surrender it when he took the Oath of Allegiance and received his Certificate of Naturalization.
On August 24, 2012, following his arrest, Worku admitted to Special Agent Lembke that his true identity was Kelefegne Alemu Worku, that he had lived in Kenya for 13 years and that while there he had assumed the name and identity of Habteab Berhe Temanu. He admitted that he had worked in the district in Addis Ababa, Ethiopia, known as Higher 15 for 18 months and that he had thereafter been imprisoned in Ethiopia for six years.
During the trial, Worku was identified by the members of the Berhe family and four other witnesses — Berhand Dargie, Nesibut Sibhat, Assayehgen Feleke, and Abebech Demissie — each of whom had been imprisoned at Higher 15 and saw him there. Worku was also identified by Kinfe Wolday, who had not been a prisoner at Higher 15, but who had conversations with Worku in approximately 1980-82. Worku told Wolday that he was a "cadre" and had been in charge of the Higher 15 prison. Worku used the term "kera" which means blood or butcher in Amharic, the predominant language of Ethiopia, to describe the conditions at Higher 15. According to Wolday, Worku bragged about killing 150 people. Wolday testified he was "99% sure" the person he talked with was Worku.
Worku's identity and the constituent elements of the crimes with which he was charged, viz., Unlawful Procurement of Citizenship or Naturalization, Aggravated Identity Theft and Fraud and Misuse of Visas, Permits and Other Documents were established beyond doubt.
Since coming to the United States and until the present verdicts of guilty, Worku has not been convicted of any other felonies or crimes of moral turpitude. He has been convicted of six traffic violations and a three-count motor vehicle case, including a charge of driving under the influence of alcohol, is pending in the Arapahoe County Court. His conviction(s) of crimes by the Ethiopian government for crimes committed in Ethiopia are not considered part of his criminal history in determining an appropriate sentence for those crimes committed in the United States. The testimony of witnesses to the conduct which resulted in those Ethiopian convictions, however, will be considered in connection with victim impact and Worku's personal data and characteristics.
In committing the acts for which he was convicted, Worku concealed his true identity and sought to avoid further prosecution and punishment for his participation in Ethiopia of the crimes of torture and murder. Those events underscore the serious nature of the violation of United States laws in misrepresenting and concealing facts for the purpose of obtaining immigration and naturalization benefits. The scope of the statute ranges from minor cheating to crowd into the line of deserving applicants, to seeking haven from prosecution and punishment for the perpetration of crimes considered by humanity to be abominations.
In such flagrant cases, the very integrity of the United States is challenged and its claim to decency in the world community is besmirched. In accordance with other cases such as
Worku is best described by the witnesses who testified against him at trial. In addition to Kiflu Ketema, the following witnesses, all of whom were prisoners at the Higher 15, testified:
Mr. Dargie is a member of the District of Columbia Bar. He made another trip to Denver to address the court at sentencing, primarily on behalf of deceased victims and their families.
Ms. Demissie now lives in San Jose, California where she is an entrepreneur. She appeared at the sentencing hearing and addressed the court on her own behalf and that of her friends whom she saw murdered at the Higher 15 at Worku's hands and under his direction.
Worku was born in 1952 according to the Gregorian calendar, but in 1944, according to the Ethiopian calendar. He was born and raised in Nazareth, Ethiopia (a city in the central part of the country) to parents who are now deceased of natural causes. His father was a farmer and businessman who provided firewood for factories and hospitals, and whose title indicated he had served the Royal Crown and was loyal to the government. His mother did not work outside the home. Worku is the fifth of six children. He says that other siblings died before he was born, and he is the only member of this family who left Ethiopia. One of his brothers owns factories in Nazareth and has built a hospital. This brother is now retired, but once served as Deputy General Manager of the national Ethiopian Airlines. Another brother was the headmaster of a school who became ill and died when Worku was living in Kenya. An older sister probably works in a thermoplastic factory owned by his brother. Another sister became a monk, but Worku does not know if she is living. He is unsure where his other sisters are or what they are doing.
After attending a polytechnic institute near Nazareth, Worku joined a government program building schools and clinics. After finishing this building program, Worku returned to the polytechnic institute. He completed twelfth grade and when he was in his twenties attended the Bahardar Polytechnic Institute, a boarding school in a town about 500 km from Nazareth. He was an average student, but did not graduate. Following his imprisonment in Ethiopia, Worku managed his family's transportation business and became involved in the plastics trading business with his brother. He moved to Kenya where he worked in a flour mill, ran a small store and operated a taxi cab.
Because of the evidence presented at trial and before sentencing, I ordered psychological and psychiatric evaluations. I ordered the psychiatric examination to determine whether Worku suffered from a mental illness and, if so, whether such illness was treatable, and to inform any conditions of confinement or supervision I might impose to accommodate it. I ordered the psychological examination to obtain appropriate testing and diagnosis of any personality or character disorder that might explain Worku's behavior so as to make a sentence and conditions of supervision appropriate in the context of possible rehabilitation, recidivism and treatment programs.
The psychiatric examination reveals that Worku "has some relatively mild symptoms of depression. Getting to sleep and staying asleep are a real challenge for him.
The psychological evaluation differs considerably from the psychiatric one. The clinical psychologist describes Worku as "clinically depressed to a fairly serious degree. He meets the criteria for a diagnosis of Major Depressive Disorder with a level of clinical anxiety. This condition may very well be the result of his difficult circumstances. While he generally seems to be a simplistic individual who prefers structured situations and adopts a narrow, avoidant focus of attention when processing information, his situation seems to have stirred up thoughts, feelings and regrets in him, making him a more psychologically complex person than he ordinarily would be."
(Emphasis added.)
Section 3553's overarching purpose is set forth in the first sentence: "The court shall impose a sentence sufficient, but no greater than necessary, to comply with the purposes set forth in paragraph (2) of this subsection." 18 U.S.C. § 3553 (a). Paragraph (2) of § 3553 enumerates the specifics of the sentencing judge's task:
or other correctional treatment in the most effective manner. . . . With the nature and circumstances of the offense and the history and characteristics of the defendant and the mental evaluations performed in mind, I have considered each of these factors in determining the appropriate sentence.
The crimes of which Worku stands convicted are those committed against the United States in gaining entry to this country and in fraudulently obtaining U.S. citizenship. The relevance of his actions in Ethiopia, overwhelmingly established by credible testimony, is limited to consideration of the degree of punishment necessary to deter those who have violated human rights from seeking entry into this country. The seriousness of the crimes Worku committed here is measured by the degree to which his actions corrupt the established processes of immigration and the effect such actions have in depreciating the prospects of those truly deserving of admission to this country.
The purpose of this sentence is not to punish Worku for crimes committed in Ethiopia, but to punish him for his indifference to the laws of the United States and for his assault on the integrity of those laws. The United States must emphatically reject becoming a haven for fugitives from justice in their own countries and in the eyes of the civilized world.
Deterring Worku from committing further crimes against the United States is not the problem. Now that he has been convicted, and assuming he may be deported, his opportunity to commit similar crimes is reduced to a near nullity because of the immigration authorities' ability to recognize him no matter what false identity he assumed. Moreover, given his age and health, the prospects of recidivism are substantially reduced. To put it bluntly, his age and health are such that he lacks the vitality to endanger the public again.
Humane treatment in a correctional facility is available for persons of Worku's age. He requires no special medical treatment that cannot be provided while he is confined. The psychiatric and psychological evaluators agree that he is not psychotic and any psychological treatment he might require is readily available. Although Worku has been diagnosed with clinical depression, treatment and psychotropic medication are not presently recommended. I note that the prison population in the United States is getting older and that the Bureau of Prisons is more than adequately confronting the problems an aging population of inmates present. As to educational and vocational training, there is no doubt Worku would benefit from further English language instruction, but he can do that while he is incarcerated. His work record before conviction does not suggest that he is need of further vocational training.
The Sentencing Guidelines calculate a total offense level of 8 and a criminal history category of 1. The resulting recommendation range is 0 to 6 months as to Counts 1 and 3, and 24 months consecutive as to Count 2. The fine range recommendation is $1,000 to $10,000. The supervised release range is 1 to 3 years as to Counts1 and 3 and 1 year as to Count 2. Neither the Defense nor the Prosecution objects to these calculations and I have found them to be accurate. I also reject them in their entirety.
I note the Probation Department recommends an upward departure to 96 months as to Counts 1 and 3, to run concurrently and 24 months as to Count 2 to run consecutively for a total term of 120 months. The Government objects and requests a maximum combined sentence of 22 years imprisonment. The Defendant objects and requests a downward departure to a combined sentence of 60 months. I do not think it necessary to dwell on these objections. Suffice to say the calculations are accurate and advisory and I reject them. Because I have provided for an evidentiary hearing and advised counsel that I will not follow the Guidelines, but rather adhere to 18 U.S.C. § 3553 criteria, I overrule the objections as moot.
I reject the Guideline recommendation because it has no regard to the circumstances of this case. Rather, it is the product of a matrix established for all violations of the statutes forming the charges in the Indictment. There are not enough cases involving convictions of human rights violators entering the United States with false documents and false statements to form the basis for a statistically valid array. The Sentencing Commission has failed to provide a justification or empirical data to support its recommendation. The incongruity of a Guideline sentence of zero to six months, followed by a two year mandatory sentence for a lesser offense, is enough to reject it. To say that a person fleeing another country on the basis of convictions for human rights violations should be treated the same as an impecunious migrant using his brother's or friend's identification to gain entry into this country in search of work is refuted merely by forming the words.
The statutes enacted by Congress provide maximum penalties of ten years imprisonment for two counts and a mandatory consecutive two year sentence for the third. If not this case, what is the maximum sentence for? The interests of the United States in keeping its immigration processes free of corruption must be measured in terms of the degree of that corruption. Such, I think, is Congress's intent.
Unlawful Procurement of Citizenship or Naturalization offends the very structure of the United States government and its national and foreign policies. Aggravated Identity Theft in pursing that unlawful procurement is considered by Congress sufficient to add a mandatory consecutive sentence of two years. Similarly, a ten year maximum sentence is provided for Fraud and Misuse of Visas, Permits, and Other Documents. I do not see any justification for making these sentences run concurrently. Count 1 and Count 3 of the Indictment constitute separate and serious crimes.
Could the Government have charged more in this case? Based on the evidence adduced at trial the answer is clearly, "Yes." Could the Government have charged fewer counts? Also, "Yes," and the question is a matter of prosecutorial discretion. But the actual charges presented, and the guilty verdicts on each of them, require individual consideration just as this Defendant is entitled to individual consideration. Neither the charges nor the Defendant can be melded into an unidentifiable lump and then used to arrive at a sentence as an exercise of baseless ipse dixit. The Congress has provided maximum sentences for the most egregious violations of these statutes. If this case is not egregious, I cannot imagine what case would be. Accordingly,
It is the judgment and sentence of this court that the Defendant, Kefelegne Alemu Worku, is hereby committed to the custody of the Bureau of Prisons to be imprisoned for a term of 10 years on Count 1 and 10 years on Count 3, said sentences to be served consecutively and not concurrently and a term of 2 years on Count 2 to be served consecutively and not concurrently for a total term of imprisonment of 22 years.
Upon release from imprisonment, the Defendant shall be placed on supervised release for a term of three years. Within 72 hours of release from custody of the Bureau of Prisons, and assuming the Defendant is not detained by the U.S. Homeland Security, Immigration and Customs Enforcement, he shall report to the probation office in the district to which he is released.
While on supervised release, the Defendant shall not violate any federal, state, or local criminal laws, shall not possess a firearm as defined by U.S. statutes and shall comply with the standard conditions that have been adopted by this court.
The mandatory drug testing provisions of 18 U.S.C. Section 3563 (a)(5) are waived because it is likely the Defendant will be deported and the reports on this Defendant indicate a low risk of substance abuse. The Defendant, however, is ordered to cooperate in the collection of DNA as directed by the probation officer.
If the Defendant is deported, he shall not thereafter re-enter the United States without the express written approval of the Attorney General of the United States and under such conditions as the Attorney General shall impose.
I find the Defendant does not have the ability to pay a fine and so I waive the fine in this case. The special assessment of $300, however, is not permitted by statute to be waived and it is due and payable immediately.
Although I have already complied with the statutory requirement of canceling Worku's citizenship and irrespective of the fact that revocation of citizenship upon conviction for naturalization fraud under 18 U.S.C. § 1425 is automatic under 8 U.S.C. § 1452(e), I am advised that the Immigration and Customs Enforcement division of the U.S. Homeland Security requires such cancellation to be included in the Judgment and Sentence. Let it therefore be restated that the Certificate of Naturalization of this Defendant has been and is cancelled and held for naught.
Finally, if released from custody, the Defendant is permanently restrained and enjoined from having any contact directly or indirectly with Berhand Dargie, Nesibut Sibhat, Kiflu Kitema, Samuel Kitema, Assayehgen Feleke, or Abebech Demissie.
The Defendant is advised of his right to appeal his convictions and the sentences imposed by this court. To do so, the Defendant must file a notice of appeal with the clerk of the court within 14 days after the entry of judgment or the right to appeal will be lost. If the Defendant is unable to afford an attorney for an appeal one will be appointed to represent him. In the interim, the appointment of the Federal Public Defender is continued. If the Defendant so requests, the clerk of the court will immediately prepare and file a notice of appeal on his behalf.
The Defendant is remanded to the custody of the United States Marshal.
