Filed: Mar. 25, 2015
Latest Update: Mar. 02, 2020
Summary: 7, The jury acquitted Kantengwa on the three counts of perjury, under 18 U.S.C. § 1621(1) that were based on her statements to the, immigration judge about the extent of her and her husband's, political affiliations at various times after 1991.United States v. Godin, 534 F.3d 51, 61 (1st Cir.
United States Court of Appeals
For the First Circuit
No. 12-2259
UNITED STATES OF AMERICA,
Appellee,
v.
PRUDENCE KANTENGWA, a/k/a Prudentienne Kantengwa,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Richard G. Stearns, U.S. District Judge]
Before
Lynch, Chief Judge,
Thompson and Barron, Circuit Judges.
Judith H. Mizner, Assistant Federal Public Defender, for
appellant.
Mark T. Quinlivan, Assistant United States Attorney, with whom
Carmen M. Ortiz, United States Attorney, was on brief, for
appellee.
March 25, 2015
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 proceedings.
See 18 U.S.C. §§ 1621(1), 1505. Those false statements concerned
(1) her truthfulness on previous immigration documents, in which
she had misrepresented her and her late husband's political
affiliations and government employment; and (2) the presence of a
roadblock outside Hotel Ihuriro (also known as "Hotel Ilhuliro")
during her stay there at the start of the genocide. Unlike her
sister, Beatrice Munyenyezi, whose case is also decided this day,
there is no evidence that Kantengwa participated in the genocide,
only that she "socialized and sympathized" with those who did, and
then sought to distance herself from it by lying. See United
States v. Munyenyezi, No. 13-1950 (1st Cir. Mar. 25, 2015).
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
-2-
decisions.1 We cannot say the district court committed any error
of law or abused its wide discretion. We affirm.
I.
A. Rwanda, The Genocidal Spring of 1994
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
1
Kantengwa also filed two pro se motions to dismiss counsel,
in which she argued that her convictions should be overturned on
the basis of ineffective assistance of counsel. We make no
judgment as to the merits of these claims. Our case law is well
settled that review of fact-specific claims of ineffective
assistance of counsel is not appropriate on direct appeal. See
United States v. Vázquez-Larrauri, 778 F.3d 276, 293-94 (1st Cir.
2015) (declining to review ineffective assistance of counsel claim
on direct appeal "[b]ecause we can only speculate based on this
record as to why counsel acted as he did" (citation and internal
quotation marks omitted)). This is in part to allow defendants
like Kantengwa to more fully develop a record on their claims in
the district court. See United States v. Mala,
7 F.3d 1058, 1063
(1st Cir. 1993) (noting that this "rule has a prudential aspect").
-3-
insurance section of the parastatal national insurance company,
Sonarwa.2
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.3 Six days later, on April 12, 1994,
Kantengwa left Kigali with Munyemana and their children in a
military escort and made a harrowing journey to Butare to stay with
Kantengwa's sister, Munyenyezi, at Hotel Ihuriro. Munyemana left
after one night to join the new government elsewhere. Kantengwa
and her children would remain at the hotel for about six weeks,
through the end of May 1994.
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.
2
Parastatal organizations are state-funded companies whose
top executives are appointed by the state, but that still enjoy
some independence and are not formally part of the government.
3
Testimony at trial indicates that scholars still do not
know who shot down President Habyarimana's plane.
-4-
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,
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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.
B. Visa & Asylum Applications to the United States
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.4 But on September
5, 2001, Kantengwa finally received conditional approval for a non-
immigrant visa, subject to her completion of a U.S. Department of
State security advisory opinion known as the "Rwanda
Questionnaire."
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 complete the questionnaire to obtain non-immigrant
visas. The State Department used the questionnaire to identify
applicants with relevant personal or family ties to political and
4
Her 1995 application for admission as a refugee was denied
because she had been unable to show past persecution or a well-
grounded fear of future persecution. Three subsequent attempts to
obtain non-immigrant visas, beginning in September 2000, were also
denied.
Munyemana's application was terminated when he died in late
February 1995.
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governmental organizations that were implicated in the genocide,
including the MRND and Service de Renseignment. Under department
policy, applicants who had such personal or family ties required
further investigation to ensure that they were not personally
implicated.
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
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alternative, voluntary departure. The Boston Immigration Court
held six testimonial hearings for the adjudication of these claims.
On July 21, 2009,5 the immigration judge granted Kantengwa's
applications for asylum and withholding of removal, and so did not
reach her requests for protection under the Convention Against
Torture or for voluntary departure. The Board of Immigration
Appeals affirmed on June 14, 2010, and later denied the
government's motion for reconsideration. Kantengwa's perjury
convictions are based on statements she made during these removal
proceedings.
C. Procedural History
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
5
The opinion of the immigration judge indicates that there
were "substantial delays" between these hearings. These delays
were requested by the parties to accommodate Kantengwa's testimony
as a defense witness before the International Criminal Tribunal for
Rwanda ("ICTR"), to obtain and present additional evidence, and to
resolve an investigation into a potential breach of Kantengwa's
confidentiality protections under 8 C.F.R. § 1208.6(a).
-8-
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 satellite images,
and Dr. Timothy Longman, an expert on the Rwandan genocide.
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,6 or any direct
evidence of the standards governing the removal proceedings in
which the asylum claim was adjudicated.
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
6
Kantengwa attempted to submit a redacted version of the
opinion into evidence, but the district court excluded it as
hearsay.
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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:7
Count 3, based on her false answers at the August 24, 2006 removal
hearing that she had been truthful in all her immigration
documents; Count 11, based on her assertion at her June 20, 2007
removal hearing that there was no roadblock at Hotel Ihuriro while
she was there; and Count 13, based on a similar assertion about the
roadblock she made at her May 16, 2008 removal hearing.
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.8
7
The jury acquitted Kantengwa on the three counts of perjury
under 18 U.S.C. § 1621(1) that were based on her statements to the
immigration judge about the extent of her and her husband's
political affiliations at various times after 1991.
8
In her two pro se motions to dismiss counsel, Kantengwa
argued that her convictions on Count 1 and Count 2 for fraud and
misuse of visas, permits, and other documents should be overturned
and that counsel should have appealed them. Kantengwa's pro se
arguments for overturning the convictions on these counts lack
merit. We make no judgment as to whether appellate counsel's
-10-
II.
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.
We review de novo the district court's denial of a motion
to dismiss on grounds of collateral estoppel. See United States v.
Lanoue, 137 F.3d 656, 661 (1st Cir. 1998). Although it is far from
clear that an administrative finding of fact can preclude later
criminal charges,9 we do not reach the broader issue. Collateral
refusal to appeal these convictions constitutes ineffective
assistance of counsel, because review of such claims is not
appropriate on direct appeal. See
Vázquez-Larrauri, 778 F.3d at
293-94.
9
See, e.g., United States v. Bustamante, 248 F. App'x 763,
764 (8th Cir. 2007) (per curiam) ("A finding by an administrative
law judge [in general] does not preclude a subsequent related
criminal prosecution."); United States v. Payne, 2 F.3d 706, 710
(6th Cir. 1993) (per curiam) (holding that proceedings enforcing
Postal Service's regulations do not collaterally estop the
government in criminal prosecutions); see also United States v.
Alexander,
743 F.2d 472, 477 (7th Cir. 1984) (suggesting that
permitting collateral estoppel of criminal prosecutions based on
administrative decisions may subvert the purpose of administrative
adjudication of "provid[ing] an informal and expeditious
adjudicatory setting" for regulatory enforcement, undermine the
cost-savings of such a system, or distort incentives for when and
how to pursue such proceedings).
-11-
estoppel does not apply, in any event, on the facts of this case.
Cf. United States v. Rodriguez-Estrada, 877 F.2d 153, 157 (1st Cir.
1989) ("[W]e are reluctant to strain to find an estoppel where one
side in a criminal case seeks to control the course of the
prosecution by reference to an earlier civil case." (citing
Standefer v. United States, 447 U.S. 10, 24-25 (1980))).
A. Issue Preclusion as to Materiality
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).10 The two are distinct standards.
The "heart of the matter" rule from immigration law prohibits
basing an adverse credibility determination "on inconsistencies in
an applicant's testimony that do not go to the heart of [her]
claim." Jabri v. Holder, 675 F.3d 20, 24 (1st Cir. 2012). By
contrast, a statement is material in a criminal prosecution for
perjury under § 1621(1) if it is "material to any proper matter of
the [decisionmaker's] inquiry." United States v. Scivola,
766 F.2d
10
The "heart of the matter" rule applied to Kantengwa's
asylum application because she filed before May 11, 2005. See
Jabri v. Holder,
675 F.3d 20, 24 (1st Cir. 2012). This rule has
been superseded by the REAL ID Act, which permits consideration of
inconsistencies "without regard to whether [the] inconsistency
. . . goes to the heart of the applicant's claim" for applications
filed on or after May 11, 2005. See
id. (alteration in original)
(quoting 8 U.S.C. § 1158(b)(1)(B)(iii)) (internal quotation marks
omitted) (citing 8 U.S.C. § 1231(b)(3)(C)).
-12-
37, 44 (1st Cir. 1985) (emphasis added); see also United States v.
Moreno Morales, 815 F.2d 725, 747 (1st Cir. 1987) (applying Scivola
to 18 U.S.C. § 1621).
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 asylum claim
-- that, in the words of the immigration judge, a "discretionary
denial based on [them] alone [would be] inappropriate" -- does not
mean that they were not "capable of influencing . . . the decision
of the decisionmaking body." United States v. Gaudin, 515 U.S.
506, 509 (1995); see also United States v. Birrell,
470 F.2d 113,
115 n.1 (2d Cir. 1972) ("[A] mistatement of fact does not need to
-13-
be dispositive of the inquiry in question to be 'material' within
the meaning of § 1621."). Kantengwa's removal proceedings cannot
bar the government from litigating materiality in a later criminal
proceeding because those removal proceedings did not resolve the
materiality issue.
B. Issue Preclusion as to Falsity of Roadblock Testimony
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."
III.
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
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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. 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. Sufficiency of Evidence as to Materiality
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
-15-
[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 ability
to influence the decision or function of the trier of fact, even if
it is unsuccessful in doing so. See
Birrell, 470 F.2d at 115 n.1.
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").11 This follows from the definition of materiality: the
body of statements that are capable of influencing a decisionmaker
in the exercise of her function will depend, in part, on what that
function is. Cf. United States v. Newell,
658 F.3d 1, 17 (1st Cir.
2011) (discussing materiality in terms of its ability to affect or
influence a government "function").
The scope of what a jury could find material to these
removal proceedings is broad. This is in part because an
11
Compare, e.g., United States v. Nazzaro, 889 F.2d 1158,
1165 (1st Cir. 1989) (holding that, in light of the "wide-ranging
investigative function reserved to grand juries, courts must
indulge comparable breadth in construing . . . materiality" (citing
Moreno
Morales, 815 F.2d at 747)), with
Guariglia, 962 F.2d at 163-
64 (holding that "the materiality of false trial testimony" before
a petit jury depends on its "impact on the factfinder's ultimate
verdict," not on "whether the false testimony hinders further
inquiry").
-16-
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
-17-
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 U.S.C. § 1158 (governing asylum relief); see also 8
U.S.C. § 1158(b)(2)(A)(i) ("Persecutor's Bar") (stating that asylum
relief "shall not apply" to those who "participated in the
persecution" of others); Matter of Pula, 19 I. & N. Dec. at 472-75.
The jury is responsible for deciding whether her false
statements were material to any of these issues. See Gaudin, 515
U.S. at 523. 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
-18-
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.
B. The Evidence Supporting Materiality
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,12 we view the evidence in the light most favorable to the
jury's verdict, and "resolve all credibility disputes in the
verdict's favor."
Id. (quoting United States v. Taylor,
54 F.3d
967, 974 (1st Cir. 1995)). We then ask whether, based on the
12
"To be precise," Kantengwa claims the district court erred
in denying her Rule 29 motion for a judgment of acquittal. See
United States v. Marin, 523 F.3d 24, 27 n.3 (1st Cir. 2008). "For
our purposes, there is no analytical distinction."
Id. (citing
United States v. Hernández,
218 F.3d 58, 64 (1st Cir. 2000)).
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evidence so viewed, "a rational factfinder could find that the
government proved the essential elements of its case beyond a
reasonable doubt." Godin, 534 F.3d at 61 (quoting United States v.
Marin,
523 F.3d 24, 27 (1st Cir. 2008)) (internal quotation marks
omitted). "Defendants challenging convictions for insufficiency of
evidence face an uphill battle on appeal." United States v.
Hernández,
218 F.3d 58, 64 (1st Cir. 2000).
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
admission.13 The jury also learned that there are factors that may
13
Kantengwa suggests that this testimony was inapposite
because Michaud presented much of this information in discussing
refugee status. Her argument is unavailing. Michaud made clear
-20-
render an applicant ineligible for admission even if the applicant
satisfies the other requirements for asylum relief, and that one
was relevant: having assisted in the persecution of others. The
jury heard testimony about what information was relevant to these
determinations, and how such information should frame what is asked
of the applicant. Finally, that the immigration judge could and
did ask follow-up and clarification questions was evident in the
excerpted transcript the jury received.
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
that these standards also apply to asylum.
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
(noting that the jury must first determine the decisions to be
made).
-21-
she was not implicated in the genocide.14 What is more, the jury
had direct evidence that Kantengwa's false statements about the
roadblock not only had this tendency, but actually did cause the
immigration judge to prevent government counsel from pursuing these
questions.
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
14
Kantengwa does not argue, and so we need not decide,
whether a statement that cuts off lines of inquiry is material only
if a truthful answer would have led to further "fruitful"
investigation. See United States v. Freedman, 445 F.2d 1220, 1226-
27 (2d Cir. 1971). We are doubtful it would make a difference in
any event, assuming that "fruitful" is properly defined.
-22-
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.
C. Jury Instructions on Materiality
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
-23-
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.15 Kantengwa preserved these objections by submitting
15
The instructions given read, in relevant part (challenged
language emphasized):
With respect to the final element of
perjury, you must find beyond a reasonable
doubt that the false statement under
consideration was material to the proceeding
in connection with which the statement was
made. A statement is "material," again, if it
had a natural tendency to influence the
tribunal before which it was made, in this
case the Immigration Court hearing Ms.
Kantengwa's asylum claim. Materiality is
demonstrated if a truthful statement could aid
a court's inquiry, or if a false statement
could hinder it.
The statement need not have actually
influenced the court, and need not have been
related to the primary subject matter of the
proceeding in order to be material. Rather,
the statement may be material if it pertained
to any proper subject matter of the court's
inquiry, including the issue of credibility.
The government need not prove that the false
or misleading information would have resulted
in a denial of Ms. Kantengwa's asylum claim,
but rather that the disclosure of the fact
would have likely influenced the Immigration
Court's actions in some material way.
Materiality is measured by an objective
standard. The question is not whether the
Immigration Judge subjectively considered the
false statements to be material, but whether
the statements themselves had a natural
tendency or potential to influence the Court.
-24-
alternative jury instructions that, she argued, addressed these two
issues.16 The district court rejected her proposed instructions.
16
Kantengwa's proposed jury instructions on materiality,
which were rejected, read (citations omitted):
You have been instructed that to find
Kantengwa guilty you must find that the false
statement was material to the decision that
the decisionmaker was trying to make. In
Counts Three through Eight the decisionmaker
was the Immigration Judge. The Judge's
decision was whether Ms. Kantengwa should be
removed from the United States or granted
asylum, pursuant to the laws and regulations
of the United States. This decision was
guided by the laws and regulations of the
United States on which I will now instruct
you.
First, in all applications for asylum,
the Immigration Judge must make a threshold
determination of the alien's credibility. The
law at the time instructed the Immigration
Judge that adverse credibility determinations
must "pertain to facts central to the merits
of the alien's claims, not merely to
peripheral or trivial matters."
To be eligible for asylum, an alien must
first demonstrate either past persecution or a
well-founded fear of future persecution.
Even if an alien can demonstrate past
persecution or a well-founded fear of future
persecution, he or she is not eligible for
asylum if he or she "ordered, incited,
assisted, or otherwise participated in the
persecution of any person on account of race,
religion, nationality, membership in a
particular social group or political opinion."
This is called the persecutor bar.
Personal involvement in killing or
torture is not necessary in order to determine
that someone "ordered, incited, assisted, or
otherwise participated" in persecution.
However, for the persecutor bar to apply, the
person must have done more than simply
associate with persecutors; there must have
-25-
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 (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
been some nexus between the alien's actions
and the persecution of others, such that the
alien can fairly be characterized as having
actually assisted or otherwise participated in
that persecution.
Finally, a grant of asylum is
discretionary on the part of the Immigration
Judge. Thus, the final issue the Immigration
Judge considered was whether Kantengwa merited
asylum as a matter of the judge's discretion.
A fact is "material" if it has a natural
tendency to influence or is predictably
capable of influencing the decision or
decisionmaker to which it was addressed,
regardless of whether the decisionmaker
actually relied on it.
-26-
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.17
Even so, Kantengwa maintains that the instructions
actually given were erroneous.
17
Indeed, we reject Kantengwa's argument for another reason.
The proffered instructions imply that a statement could only be
material if it pertained to one of the legal elements of the
immigration judge's decision. But this is incorrect. As
discussed, the jury was also entitled to consider whether the
statements were material to smaller, incremental decisions the
immigration judge needed to make in arriving at her ultimate
conclusion. Cf. Scivola, 766 F.2d at 44.
-27-
She first objects to the instruction that statements
"need not have been related to the primary subject matter of the
proceeding" to be material. Though preserved, there is no error.
This instruction respects our well-settled law in this circuit:
The [allegedly perjurious] 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,
including the issue of credibility.
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.18 She made
18
Kantengwa did not make, and so has waived, any argument
that this instruction as to credibility was misleading in light of
the "heart of the matter" rule governing credibility determinations
in Kantengwa's removal hearings. As discussed, this rule greatly
restricts which inconsistencies an immigration judge may consider
in making her credibility determination, Jabri, 675 F.3d at 24,
such that it is not true that any statement that ordinarily would
pertain to credibility in other proceedings is material to
credibility in removal proceedings. Cf. United States v. Akram,
152 F.3d 698, 701-02 (7th Cir. 1998) (discussing concerns about
adoption of a per se rule that statements pertaining to credibility
are material). But if Kantengwa had meant to raise this argument
by citing the instruction and the omission while arguing that the
instructions suggested (misleadingly) that any false statement
could be material, she only gestured at it "in a perfunctory
manner," and so any argument to this effect is waived. United
States v. Zannino,
895 F.2d 1, 17 (1st Cir. 1990) ("[A] litigant
has an obligation 'to spell out its arguments squarely and
distinctly . . . .'" (quoting Rivera-Gomez v. de Castro, 843 F.2d
-28-
no such argument to the trial judge, and we think it self-evident
there was no plain error. We also note the jury acquitted
Kantengwa on perjury counts concerning her representations about
her and her husband's political affiliations. Cf. Estate of
Keatinge, 316 F.3d at 16.
IV.
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 1994.19 "We review rulings relating to the admissibility of
expert-witness testimony for clear abuses of discretion, and will
not reverse unless the ruling at issue was predicated on an
incorrect legal standard or we reach a 'definite and firm
conviction that the court made a clear error of judgment.'" United
States v. Corey, 207 F.3d 84, 88 (1st Cir. 2000) (citation omitted)
(quoting United States v. Shay,
57 F.3d 126, 132 (1st Cir. 1995)).
631, 635 (1st Cir. 1988))).
19
Kantengwa also argues that the district court abused its
discretion in excluding as hearsay a redacted version of the
immigration judge's decision. This issue has been waived.
Kantengwa focused her appellate arguments exclusively on the issue
of whether the immigration judge's decision was relevant to any
issue in her trial, and, in so doing, failed to address the
determination that the decision was hearsay or to even argue that
a hearsay exception applies. Cf. United States v. Gonyer, 761 F.3d
157, 166 n.4 (1st Cir. 2014).
-29-
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.20 Rather, Kantengwa argues that Dr. Longman's
testimony about the particular roadblock's existence is
20
Dr. Longman is a professor of political science and
Director of the African Studies Center at Boston University. He
received his Ph.D. in political science with a minor in African
studies from the University of Wisconsin in 1995. He wrote his
doctoral dissertation on religion and the 1994 genocide, for which
he conducted research in Rwanda in 1992 and 1993. He was primarily
based in Butare.
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.
-30-
inadmissible because his belief that there was a particular
roadblock in a particular location at a particular time was based
on nothing more than the repetition of out-of-court statements of
others. She argues the government impermissibly used his testimony
"as little more than a conduit . . . for testimonial hearsay." See
United States v. Johnson, 587 F.3d 625, 635 (4th Cir. 2009); see
also Marvel Characters, Inc. v. Kirby,
726 F.3d 119, 135-36 (2d
Cir. 2013).
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."21 Although historical experts may have "specialized
knowledge" that can assist the trier of fact and all experts are
afforded some leeway with respect to hearsay evidence, Fed. R.
Evid. 702, 703, "a party cannot call an expert simply as a conduit
for introducing hearsay under the guise that the testifying expert
used the hearsay as the basis of his testimony." Marvel, 726 F.3d
at 136 (quoting Malletier v. Dooney & Bourke, Inc.,
525 F. Supp. 2d
21
Dr. Longman testified that the written sources his project
generally relied upon included letters and minutes from government
meetings gathered from government archives.
-31-
558, 666 (S.D.N.Y. 2007)) (internal quotation marks omitted).
Rather, as the Second Circuit has observed: "The appropriate way to
adduce factual details of specific past events is, where possible,
through persons who witnessed those events. And the jobs of
judging these witnesses' credibility and drawing inferences from
their testimony belong to the factfinder." Id.
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 what the actual events were
presents a challenge where historical expertise may be particularly
invaluable. Viewing the testimony in this light, Dr. Longman did
not merely act as a "conduit" for the testimony of a select few
individuals, but gave testimony that could explain the consistency
of accounts as to this historical fact about the roadblock at Hotel
Ihuriro, despite conflicting versions of other details about what
happened in Butare during the genocide. His conclusions about the
existence of the roadblock at Hotel Ihuriro seem based in part on
the consistency of the accounts, not merely the interviews
themselves. And his conclusions about the timing of the roadblock
also accord with the consistency of these accounts, the roadblock's
notoriety, and the timing of other political events, such as the
government's meeting and President's speech on April 19, that
brought the full force of genocide to Butare and sparked the quick
establishment of major roadblocks run by the MRND militia. This is
-32-
consistent with generally accepted historical methodology, see,
e.g. United States v. Paracha, 69 Fed. R. Serv. 130,
2006 WL
12768, at *20-21 (S.D.N.Y. Jan. 3, 2006) (finding historian's
method "consist[ing] of gathering multiple sources . . . ,
including original and secondary sources" to reach conclusions
about historical facts to be reliable), and Kantengwa's counsel
thoroughly interrogated the evidence so that the jury might be
aware of its limitations, cf. Daubert v. Merrell Dow Pharms., Inc.,
509 U.S. 579, 596 (1993). See also M.D. Goodman, Slipping through
the Gate: Trusting Daubert and Trial Procedures to Reveal the
'Pseudo-Historian' Expert Witness and to Enable the Reliable
Historian Expert Witness -- Troubling Lessons from Holocaust-
Related Trials, 60 Baylor L. Rev. 824, 861, 868-69 & n.243 (2008)
(citing Paracha,
2006 WL 12768, at *19-21) (suggesting the expert
in Paracha "describ[ed] an appropriate methodology" in explaining
his reliance on hearsay and other secondary sources). Indeed,
there is no suggestion that the adversarial system "skew[ed]" an
otherwise reliable historian's testimony. See
Goodman, supra, at
872-73. Dr. Longman thus fulfilled the historian's role of
"surveying a daunting amount of historical sources," evaluating
their reliability, and providing a basis for a "'reliable
narrative[] about the past.'" A. Hasani, Putting History on the
Stand: A Closer Look at the Legitimacy of Criticisms Levied Against
Historians Who Testify as Expert Witnesses, 34 Whittier L. Rev.
-33-
343, 354-55 (2013) (quoting M. Howell & W. Prevenier, From Reliable
Sources: An Introduction To Historical Methods 2 (2001)); see also
Goodman, supra, at 861 (explaining historical experts' role in
"gather[ing], analyz[ing], and synthesiz[ing] countless historical
documents" may be especially helpful "in cases involving
complicated or unfamiliar historical issues").
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 historical detail (not
others' states of mind) in light of the consistency of that detail
in testimonial accounts and other corroborative sources about an
otherwise contentious historical event, and in light of the
narrative consistency of that particular historical detail with
other political events in the historical record.
-34-
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
-35-
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).
V.
We affirm.
-36-
