LYNCH, Chief Judge.
Prudence Kantengwa, also known as Prudentienne Kantengwa, is a member of a prominent political family allegedly involved in the Rwandan genocide. She appeals her convictions for perjury and obstruction of justice based on false statements she made in connection with her 2004 application for asylum in the United States and subsequent removal
Kantengwa challenges her convictions on numerous grounds, all aimed at undermining the requisite findings that her statements were material to the immigration judge's decision, and that there was, in fact, a roadblock in front of Hotel Ihuriro while she was there (such that her averments to the contrary were false). These challenges are based on issue preclusion, sufficiency of the evidence, the adequacy of the jury instructions, and evidentiary decisions.
Until civil war broke out in the spring of 1994, Kantengwa lived with her family in Kigali, Rwanda. Her family was politically active: She and her husband, Athanase Munyemana, were both members of the then-ruling party, the National Republican Movement for Democracy and Development ("MRND"). Munyemana worked for the government in various senior capacities, including for the Service Central de Renseignment and, after the Service Central de Renseignment was decentralized, as head of its internal intelligence division. Kantengwa, one of the few female lawyers in Rwanda at the time, served as section chief of the automobile insurance section of the parastatal national insurance company, Sonarwa.
The killings began shortly after President Habyarimana's plane was shot down on April 6, 1994, throwing Rwanda into turmoil and sparking the three-month genocide that would claim the lives of 700,000 to 800,000 Rwandans.
The genocide was conducted by the party to which Kantengwa and her family belonged. It began with mass slaughters of Tutsis and moderate Hutus in central locations; later, the genocide's perpetrators would use patrols and roadblocks to weed out and kill survivors. The Service de Renseignment, with whom Munyemana held a senior position, was one of the organizations involved in committing the genocide, and many senior members of the MRND were implicated.
During the first two weeks of the genocide, the people of Butare had largely resisted becoming involved. But on April 19, 1994, the new Rwandan president, Theodore Sindikubwabo, came to Butare and gave a speech that made clear that those who did not support his new regime would be targeted. Those loyal to the new regime, who had already been laying the groundwork for the genocide, responded to the call to action and set up numerous roadblocks.
Among those loyal to the regime were Kantengwa's in-laws and hosts at Hotel Ihuriro: Pauline Nyiramasuhuko, the hotel's owner, and her son, Shalom Ntahobali, who was married to Kantengwa's sister. Dr. Timothy Longman, a professor of political science and an expert on the Rwandan genocide, testified that Hotel Ihuriro is believed to have been the site of one of the more notorious roadblocks that was set up following President Sindikubwabo's speech. The jury found that this roadblock at Hotel Ihuriro was in place by the time Kantengwa left Hotel Ihuriro in late May, and so her statements that there was no roadblock while she was there were false.
Although there is no evidence that Kantengwa participated in the genocide or at the roadblock, she lived, socialized, and sympathized with those who did. For example, her brother-in-law, Shalom Ntahobali, led the Interahamwe militia in creating the roadblock, and the participation of Kantengwa's sister, Munyenyezi, in the roadblock is the subject of another appeal before this court. See United States v. Munyenyezi, No. 13-1950 (1st Cir. Mar. 25, 2015). Kantengwa's attempts to distance herself from this history while immigrating to the United States form the basis of her convictions and this appeal.
Kantengwa and her family left Rwanda in July 1994 when the opposition gained control of the country, eventually arriving in Kenya. Beginning in 1995, Kantengwa made several unsuccessful attempts to gain admission to the United States.
The Rwanda Questionnaire assists the U.S. Department of State in screening out genocide participants seeking refuge in the United States. All Rwandan applicants living outside Rwanda were required to
In completing the Rwanda Questionnaire, Kantengwa answered two questions falsely. The first concerned whether she or any immediate family member was ever a member of several specified organizations, including the Service de Renseignment (for which her husband had worked). The second concerned whether she or any immediate family member was ever a member of a political party, including the MRND (of which she was once a member). Kantengwa responded "No" to both questions. The Department of State approved her application, and she received her visa on March 4, 2002. She subsequently made two brief visits to the United States to speak at a conference and to visit family.
Kantengwa last entered the United States on January 29, 2004, and applied for asylum on March 8, 2004. She was referred to removal proceedings on March 3, 2005 for having overstayed her visa.
Kantengwa conceded removability for having remained past her authorized visit, but sought relief from removal, again in the form of asylum, as well as in the form of withholding of removal, protection under the Convention Against Torture, and, in the alternative, voluntary departure. The Boston Immigration Court held six testimonial hearings for the adjudication of these claims. On July 21, 2009,
On December 18, 2008, the grand jury returned a fifteen-count indictment charging Kantengwa with fraud and misuse of visas, permits, and other documents; perjury; and obstruction of proceedings before departments and agencies. See 18 U.S.C. §§ 1546(a), 1621(1), 1505. The government voluntarily dismissed six of these.
At trial, the government offered evidence of Kantengwa's political membership and affiliations, the history of the Rwandan genocide, and direct testimony from one witness about the roadblocks in Butare. The government also offered satellite images of Butare from late May and early June 1994 through an intelligence officer who explained how to interpret them to recognize cars, obstructions, buildings, and groups of people. The evidence of the existence and timing of the roadblock at Hotel Ihuriro was offered through one eyewitness, Augustin Iyamuremye, the
The government also presented evidence about the various relevant immigration processes. Four officials who worked with the U.S. Citizenship and Immigration Services ("USCIS") or the Department of State offered testimony about the visa and asylum process, procedures for identifying applicants implicated in the genocide, and various bars to admissibility. The jury also received an excerpted transcript of the asylum hearings containing the charged perjurious testimony and context. The jury did not receive the immigration judge's written opinion,
The jury convicted Kantengwa on most counts. Kantengwa was found guilty of both counts of fraud and misuse of visas, permits, and other documents under 18 U.S.C. § 1546(a). The basis for conviction on Count 1 was Kantengwa's false answers on the Rwanda Questionnaire in her 2001 visa application about her and her family's political and governmental affiliations. The basis for conviction on Count 2 was Kantengwa's false answer on her 2004 asylum application that she had not committed any crimes, despite having committed fraud in her visa application.
The jury also convicted her on three perjury counts:
Finally, the jury convicted Kantengwa of obstruction of proceedings before departments and agencies under 18 U.S.C. § 1505 on the same bases as her perjury convictions.
Kantengwa appeals her convictions for perjury and obstruction of proceedings, but not her convictions for fraud and misuse of visas, permits, and other documents.
Kantengwa first argues that her convictions should be overturned and the charges dismissed as barred by the doctrine of issue preclusion. She argues that her removal proceedings resolved both (1) that her inconsistencies were not material, and (2) that her statements concerning the roadblock were not false. Accordingly, she contends, the government is barred from re-litigating these issues, and the perjury charges (but not her obstruction charges) should have been dismissed.
Contrary to Kantengwa's assertions, the immigration judge's decision that her false statements did not "go to the heart" of her asylum claim is not a finding as to the materiality of those false statements under the criminal statute of prosecution, 18 U.S.C. § 1621(1).
The immigration judge's conclusion that Kantengwa's misrepresentations did not go to the heart of her claim was limited to the finding that such inconsistencies did not "provide specific and cogent reasons to conclude that [Kantengwa]'s testimony was incredible with regard to" the grounds of her fear of future persecution, Ying Jin Lin v. Holder, 561 F.3d 68, 72 (1st Cir. 2009), namely, that the government would target her based on her relationship to her late husband (who some believe left her incriminating files) and to her brother (a "well-known member of the opposition").
Indeed, far from deciding that Kantengwa's misrepresentations were immaterial, the immigration judge specifically found that Kantengwa's misrepresentations were material as "adverse factors" counting against granting asylum. That these inconsistencies were not dispositive of the
The immigration judge's determination that the government failed to "conclusively establish" that there was a roadblock outside Hotel Ihuriro during the relevant period also does not provide a basis for issue preclusion in the later criminal proceeding.
Collateral estoppel applies only where the "previously decided issues ... were `essential to the [earlier] judgment.'" United States v. Ledée, 772 F.3d 21, 31 (1st Cir.2014) (second alteration in original) (quoting Ríos-Piñeiro v. United States, 713 F.3d 688, 692 (1st Cir.2013)). The immigration judge expressly stated that the truthfulness of Kantengwa's claim about the roadblock did not affect her finding that Kantengwa's "testimony concerning matters central to her claim [for asylum] necessarily overcomes an adverse credibility finding."
We turn to Kantengwa's arguments that the government failed to establish the materiality of her lies in any event: first, her argument that there was insufficient evidence of materiality, and, second, that there was reversible error in the jury instructions.
Both arguments center on the lack of "direct evidence about the [legal] standards the [immigration judge] employed in adjudicating her asylum claim." Kantengwa argues that, without such direct evidence, there was insufficient evidence for the jury to find her false statements were material to the immigration judge's decision because they lacked the information necessary to draw conclusions about what that decision was. See Gaudin, 515 U.S. at 512, 115 S.Ct. 2310. In the alternative, she argues that the failure to include these standards in the jury instructions made the instructions misleading, and that this error was not harmless. "The two analyses differ," though here the outcomes do not. See United States v. Godin, 534 F.3d 51, 61 (1st Cir.2008).
A statement is material under § 1621(1) "if it is `capable of influencing the tribunal on the issue before it.'" Scivola, 766 F.2d at 44 (quoting United States v. Giarratano, 622 F.2d 153, 156 (5th Cir. 1980)) (discussing materiality under 18 U.S.C. § 1623); see also Moreno Morales, 815 F.2d at 747 (applying Scivola to 18 U.S.C. § 1621).
This test "is a broad one." Scivola, 766 F.2d at 44. "The statement need not be material to any particular issue in the case, but rather may be material to any proper matter of the [decisionmaker]'s inquiry...." Id. (suggesting that this "includ[es] the issue of credibility"). Nor must the statement be dispositive; it is enough that the false statement has the
The scope of what is material varies with context. That scope is particularly broad where the decisionmaker can direct or pursue specific lines of inquiry in response to the defendant's statements. See United States v. Guariglia, 962 F.2d 160, 163-64 (2d Cir.1992) (discussing the difference in the materiality standard between "investigative setting[s]" and the "trial context").
The scope of what a jury could find material to these removal proceedings is broad. This is in part because an immigration judge has discretion as to relief. Even where an applicant otherwise satisfies the requirements for asylum, an immigration judge may deny relief based on a balancing of various "adverse factors," including fraudulently obtaining immigration benefits. See Matter of Pula, 19 I. & N. Dec. 467, 472-75 (B.I.A.1987) (holding that an immigration judge must consider the seriousness of adverse factors in exercising discretion), superseded in part by statute on other grounds as stated in Andriasian v. I.N.S., 180 F.3d 1033, 1043-44 & n. 17 (9th Cir.1999).
The scope of materiality is also broad for removal proceedings because the immigration judge has a relatively active role in seeking the information she needs to make her decision. In particular, the immigration judge may "elicit testimony" that guides the proceedings, and base her decisions about what lines the parties may pursue on the answers to questions. Cf. United States v. Nazzaro, 889 F.2d 1158, 1165 (1st Cir.1989) (noting the grand jury's ability to "appropriately elicit testimony"). That is, the function of the immigration judge is not limited to deciding the ultimate issue (even where she has no discretion as to relief), but includes subsidiary decisions governing the scope of the proceedings. Cf. United States v. Doulin, 538 F.2d 466, 470 (2d Cir.1976) ("A conviction under § 1623 [criminalizing `[f]alse declarations before [a] grand jury or court'] may ... be sustained upon a showing that a truthful answer to the grand jury's question could conceivably have furthered its inquiry by providing `an evidentiary stone in the larger edifice.'" (quoting United States v. Mancuso, 485 F.2d 275, 283 (2d Cir.1973))).
In light of the standards governing Kantengwa's removal proceedings, the false statements at issue could have been material in at least five different ways: to deciding the ultimate issue of whether discretionary relief is warranted; to determining whether Kantengwa was barred from relief for the persecution of others; to considering whether her use of fraud to enter the country warrants a discretionary denial; to making the threshold determination of credibility; and to guiding the relevant lines of inquiry. See generally 8
The jury is responsible for deciding whether her false statements were material to any of these issues. See Gaudin, 515 U.S. at 523, 115 S.Ct. 2310. The government need not show that the immigration judge actually found them material, see United States v. Edgar, 82 F.3d 499, 510 (1st Cir.1996), or that the immigration judge's decision would have differed had truthful answers been given, see United States v. Silveira, 426 F.3d 514, 518 (1st Cir.2005). For example, the government did not need to show that the persecutor bar would have applied had Kantengwa not lied about the roadblock, only that those lies were material to the determination of whether it did. See Birrell, 470 F.2d at 115 n. 1 (noting that a material statement need not be dispositive). Finally, it is enough that the government present sufficient evidence for the jury to find a statement material to any one of these issues; the government need not pursue them all or present evidence for the jury to understand all of these issues. See Scivola, 766 F.2d at 44 ("The statement need not be material to any particular issue ..., [but] may be material to any proper matter of the [decisionmaker]'s inquiry...." (emphasis added)); see also Silveira, 426 F.3d at 518.
With these standards in mind, it is clear that the government's evidence of materiality was sufficient.
Our review is de novo. United States v. Conley, 186 F.3d 7, 19 (1st Cir.1999). When examining sufficiency of the evidence,
The record establishes that the evidence provided the jury with an adequate understanding of the issues before the immigration judge and the role of the immigration judge in the proceedings so as to analyze materiality. Cf. United States v. Moore, 612 F.3d 698, 702 (D.C.Cir.2010) (holding evidence sufficient to find materiality despite absence of "evidence [introduced] specifically for the purpose of establishing... materiality").
The government provided evidence about the basic decisions facing the immigration judge through the testimony of Dorothy Michaud, the Boston Director of USCIS. The jury heard that, to obtain asylum, an applicant must show that she fears persecution in her home country on the basis of one of five protected grounds, and that she is not otherwise barred from
It is not a reach to conclude that Kantengwa's lies about the roadblock, alleged in Counts 11 and 13, were material to the immigration judge's decision about the persecutor's bar. At the very least, the jury could conclude that this lie would have a natural tendency to cut off important lines of inquiry about the roadblock, about her relationship with those involved, and about what did or did not happen at the roadblock (including her participation, if any), that are directly relevant to ensuring that she was not implicated in the genocide.
The evidence was also sufficient to conclude that Kantengwa's false statements alleged in Count 3, that she had been truthful in her asylum application and all other documents, were material to the persecutor bar. The jury heard testimony about how even seemingly insignificant details, like family ties or travel history, could raise "red flags" about an applicant's implication in the genocide. But these were the very details that had formed the basis of Kantengwa's visa fraud: her membership in the MRND, and her husband's role in the Service de Renseignment, both organizations implicated in the genocide. A jury could easily find that lying about having committed visa fraud, where the purpose of that fraud was to conceal these "red flags," was material to the persecutor bar.
We cannot conclude that this evidence, "viewed in the light most favorable to the government, could not have persuaded any trier of fact of [Kantengwa]'s guilt beyond a reasonable doubt." Hernández, 218 F.3d at 64 (citations and internal quotation marks omitted). And so, we must affirm the district court's denial of Kantengwa's Rule 29 motion. Id.
We review "claims of instructional error `under a two-tiered standard: we consider de novo whether an instruction embodied an error of law, but we review for abuse of discretion whether the instructions adequately explained the law or whether they tended to confuse or mislead the jury on the controlling issues.'" United States v. Symonevich, 688 F.3d 12, 24 (1st Cir.2012) (quoting United States v. Jadlowe, 628 F.3d 1, 14 (1st Cir.2010)) (internal quotation marks omitted). "The district court's refusal to give a particular instruction constitutes error only if the requested instruction was (1) correct as a matter of substantive law, (2) not substantially incorporated into the charge as rendered, and (3) integral to an important point in the case." Id. (citing United States v. Mercado, 412 F.3d 243, 251 (1st Cir.2005)). We review Kantengwa's preserved claims of error for harmlessness, but apply plain error review to claims not preserved. See id.; Estate of Keatinge v. Biddle, 316 F.3d 7, 16 (1st Cir.2002).
We begin with her preserved claims of error. Kantengwa objected that the district court's jury instructions concerning materiality were inadequate because (1) the instructions did not describe the legal standards applicable to her removal proceedings, and (2) the instructions erroneously stated that a statement "need not have been related to the primary subject matter" to be material.
Kantengwa argues that this denial was in error, but fails to show that her requested instruction was "integral to an important point in the case." Symonevich, 688 F.3d at 24. She argues that her jury instructions, which present the legal elements of her asylum claim, were necessary to enable the jury to ascertain the decision the immigration judge was trying to make, a prerequisite under Gaudin for determining whether a particular statement was material. See Gaudin, 515 U.S. at 512, 115 S.Ct. 2310 (suggesting this is a required "subsidiary question[]" in assessing materiality). She argues that this inclusion is required both as a matter of law, and as integral to her case.
Not so. Kantengwa's argument notwithstanding, the omission of a fuller description of the legal instructions governing removal proceedings was not erroneous because there is no such requirement; indeed, she has not cited any authority to the contrary.
Nor has Kantengwa demonstrated that the instructions were integral to her case. On the most charitable reading of her arguments, she suggests that the instructions as to the persecutor bar were necessary because the jury needed them to understand that the persecutor bar would not apply to Kantengwa. But this confuses the issue. Whether the persecutor bar actually applies is irrelevant. Cf. Silveira, 426 F.3d at 518. Rather, the jury only needed to understand that the persecutor bar was at issue in the removal proceedings, which the jury knew it undisputedly was.
We do not hold that properly drafted additional instructions along these lines would never be useful. But the trial judge had discretion to conclude the instructions proffered did not meet those standards and, more than that, would be confusing.
Even so, Kantengwa maintains that the instructions actually given were erroneous.
She first objects to the instruction that statements "need not have been related to the primary subject matter of the proceeding"
Scivola, 766 F.2d at 44 (citations omitted).
Kantengwa also raises, for the first time on appeal, a novel and unclear argument that the instruction as to credibility embodied legal error. She argues that the instruction essentially eviscerated the materiality requirement because, under the court's instructions, any false statement could pertain to credibility. This, she argues, negates the materiality requirement.
The last issue on appeal is whether the district court abused its discretion in admitting the testimony of a professional political scientist and an historical expert on the Rwandan genocide, Dr. Timothy Longman, as to the existence of a roadblock in front of Hotel Ihuriro before Kantengwa's departure at the end of May 1994.
The parties do not dispute Dr. Longman's credentials as a political scientist, or that he is an expert on the Rwandan genocide whose testimony generally explaining the use of roadblocks during the genocide might be specialized knowledge relevant and helpful to the jury.
The admission of this testimony raises interesting issues. Dr. Longman's conclusions about the existence and timing of the Hotel Ihuriro roadblock were largely based on conversations with people he knew in Butare, twenty to twenty-five formal interviews (not all relevant), and the work of collaborators on a book project. He also testified as to other events in Butare at the time that relied on these materials, as well as other "written sources."
On the other hand, we recognize that sifting through the many myths and politically charged characterizations in the wake of the Rwandan genocide to determine
These features distinguish this case from Marvel Characters, Inc. v. Kirby, 726 F.3d 119 (2d Cir.2013). In Marvel, the historical experts based their conclusions on "hearsay statements, made by freelance artists in both formal and informal settings, concerning Marvel's general practices towards its artists during the relevant time period." Id. at 136. They then drew on those statements to "speculate as to the motivations and intentions of certain parties," or to "opine on the credibility of other witnesses' accounts." Id. For example, the experts speculated about certain parties' and witnesses' beliefs about whether "material they created was `work made for hire'" based on these hearsay statements. Id. This is significantly different from expert testimony assessing a particular
And to the extent that portions of Dr. Longman's testimony merely conveyed hearsay testimony about the timing and existence of the roadblock, the error, if there were error as to those portions, was harmless in this case. Iyamuremye testified as an eyewitness that he saw a roadblock go up on the main road outside the hotel during the week of April 20 and stay up until he left Butare on May 30 — that is, he testified to the existence of the roadblock during the time Kantengwa was staying in the hotel. He described it as "the main roadblock," and "big," with twenty to thirty people "searching," "checking IDs," and "controlling everyone who was going through." That there was a large roadblock in front of the hotel during this time was supported by additional sources of information. Satellite images from just after Kantengwa left Butare — along with expert testimony analyzing those images — indicate obstructions in the road outside the hotel consistent with a roadblock. The roadblock's existence just after Kantengwa left Butare supports the further inference that the same roadblock existed earlier, particularly in light of the unchallenged portions of Dr. Longman's testimony. Dr. Longman testified that the genocide came to Butare on April 19 or 20 and continued during the entire time Kantengwa was at the hotel; he testified to the use of roadblocks in the genocide; and he testified to the role of Kantengwa's brother-in-law and his mother — the owners and operators of the hotel — as key leaders in government and the MRND, and perpetrators of genocide.
The district court "has broad discretion in deciding to admit or exclude expert testimony." United States v. Paiva, 892 F.2d 148, 160 (1st Cir.1989). Because we lack a "`definite and firm conviction that the [district] court made a clear error of judgment,'" we cannot say it abused this broad discretion. Corey, 207 F.3d at 88 (quoting Shay, 57 F.3d at 132).
We affirm.
Munyemana's application was terminated when he died in late February 1995.
This testimony is also not undermined by Michaud's expressed uncertainty as to the exact legal standards governing removal proceedings in immigration court. Michaud confirmed that the definition of asylum (including bars to admissibility) that she used as a USCIS officer to process affirmative asylum applications was the same definition used by immigration judges to adjudicate defensive asylum claims during removal hearings in immigration court. This was sufficient for the jury to understand the essential point: the immigration judge needed to decide whether Kantengwa was barred from remaining. See Gaudin, 515 U.S. at 512, 115 S.Ct. 2310 (noting that the jury must first determine the decisions to be made).
To be eligible for asylum, an alien must first demonstrate either past persecution or a well-founded fear of future persecution.
After completing his Ph.D., he returned to Rwanda in 1995 and 1996 as the Director of the Human Rights Watch's Rwanda field office in Butare. During his year there, he assisted the Human Rights Watch's research on the genocide. In particular, he assisted with researching and conducting interviews for their 1999 book project, Leave None to Tell the Story. Dr. Longman drafted the book's two chapters on the Nyakizu Commune, a commune near Butare, which served as one of the book's three case studies (the other two were Butare and another nearby region). He testified that Leave None to Tell the Story was "sort of the definitive book" on the genocide, and that its lead writer was the late Alison Des Forges, a scholar and human rights activist who won a MacArthur Genius Grant for the book. Much of his work, particularly the materials he gathered, has been used as evidence at the ICTR, and he personally testified in one case.
Following his time with Human Rights Watch in Rwanda, he directed a project at University of California, Berkeley, concerning post-genocide Rwanda. He then held several other academic positions before beginning at Boston University.
Dr. Longman has published dozens of articles and book chapters on the Rwandan genocide, and Cambridge University Press published his 2010 book, Christianity and Genocide in Rwanda. His current scholarship focuses on religion in politics, human rights, and justice issues, with a particular emphasis on Rwanda and the surrounding region. At the time of the trial, he was completing a book on post-genocide Rwanda, titled Memory and Justice in Post-Genocide Rwanda.
