United States v. Munyenyezi , 781 F.3d 532 ( 2015 )

United States Court of Appeals
For the First Circuit
No. 13-1950
UNITED STATES OF AMERICA,
Appellee,
v.
BEATRICE MUNYENYEZI,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Steven J. McAuliffe, U.S. District Judge]
Before
Lynch, Chief Judge,
Thompson and Barron, Circuit Judges.
Mark E. Howard, with whom David W. Ruoff and Howard & Ruoff,
PLLC, were on brief, for appellant.
Mark T. Quinlivan, Special Assistant United States Attorney,
with whom Donald Feith, Acting United States Attorney, District of
New Hampshire, and Carmen M. Ortiz, United States Attorney,
District of Massachusetts, were on brief, for appellee.
March 25, 2015
THOMPSON, Circuit Judge.
Overview1
Man's inhumanity to man is limitless. Any doubt, just
recall the 1994 genocide in Rwanda. Over the course of 100 days,
roving bands of Hutus (Rwanda's majority ethnic group) slaughtered
hundreds of thousands of their countrymen, most of them Tutsis (a
minority group long-dominant in Rwanda). Some of the crazed
killers belonged to the Interahamwe, the dreaded militia of a Hutu
political party known by the initials, MRND.2 About 7,000 Rwandans
died each day, often butchered by machete-wielding Interahamwes at
roadblocks set up to catch fleeing Tutsis. And these killers
didn't just kill — they raped, tortured, and disfigured too.
Now meet Beatrice Munyenyezi, a Hutu from Rwanda. She
spent the genocide months (pregnant with twin girls) living at the
Hotel Ihuriro in Butare, Rwanda — a hotel managed by her husband,
Shalom Ntahobali, and owned by her mother-in-law, Pauline
Nyiramasuhuko. Ntahobali and Nyiramasuhuko were no ordinary
hoteliers, however. He was an Interahamwe leader who manned a
notorious roadblock in front of the hotel. She was a high-powered
minister in Rwanda's MRND government who kicked-off the killing
1
We present the facts below in the light most favorable to
the government, because (as you will see) our defendant challenges
the sufficiency of the evidence against her. See, e.g., United
States v. Polanco, 634 F.3d 39, 45 (1st Cir. 2011).
2
MRND stands for the National Republican Movement for
Democracy and Development.
-2-
frenzy there by telling the party's devotees that all Tutsi
"cockroaches" must die. And Hutu thugs ultimately massacred more
than 100,000 Tutsis in and around Butare.
Munyenyezi fled to Kenya in the genocide's waning days.
Hoping to come to the United States as a refugee, she filled out
immigration form I-590 in 1995, writing "none" when asked to list
"political, professional or social organizations" that she had been
a member of or affiliated with since her "16th birthday."3 She
also affirmed there that she had neither committed a crime of moral
turpitude nor persecuted people on grounds of race, religion, or
politics. Asked on another form whether she was personally
affected by the "atrocities" in Rwanda — "Were you a victim? A
witness? Were you otherwise involved?" — she simply wrote "family
members disappeared." And she answered "no" to the question
whether she either had a hand in killing or injuring persons during
the genocide or had encouraged others to do so. The government
approved her papers in 1996, and she moved to the United States in
1998.
About a year later Munyenyezi applied to change her
status to lawful permanent resident. One question on her
application asked her to jot down her "present and past membership
in or affiliation with every political organization, association,
. . . party, club, society or similar group" since turning 16. She
3
She turned 16 in 1986.
-3-
wrote "none." She also checked "no" in answer to the questions
whether she had ever committed a crime of moral turpitude and
whether she had anything to do with genocide or with killing or
injuring persons because of their race, ethnicity, religion, or
politics. The government approved her application in 2001.
In 2003 Munyenyezi applied for naturalization as an
American citizen, declaring that the answers in her form N-400 — a
naturalization form — were truthful. Answers on that form included
that she had (a) never been associated with any organization,
party, club, or the like; (b) never done a crime leading to her
arrest or conviction; and (c) never lied to or misled federal
officials to get immigration benefits. She became a naturalized
citizen later that year.
In 2006 Munyenyezi testified at an international criminal
court — commonly called the ICTR — as a witness for her husband (he
was being prosecuted for his role in the Rwandan genocide).4 There
she said that she saw no roadblock near her family's hotel or dead
bodies in Butare, and she also said that her husband was no
génocidaire. Just a few short months after she testified, the
federal government pulled her immigration file to check for any
illegalities.
4
ICTR is short for the International Criminal Tribunal for
Rwanda.
-4-
Convinced that she had concealed her role in the Rwandan
genocide — her part in the killings and rapes at the roadblock next
to the Hotel Ihuriro, and her ties to the MRND and the Interahamwe
— federal prosecutors later indicted Munyenyezi in 2010 on two
counts of procuring citizenship illegally by making false
statements to the government. See 18 U.S.C. §§ 1425(a) and (b).
Her first trial ended in a hung jury. A second trial resulted in
convictions. Using the 2002 edition of the federal sentencing
guidelines, the judge then sentenced her to two concurrent 120-
month prison terms.
On appeal Munyenyezi challenges the sufficiency of the
proof against her, contests an evidentiary ruling, alleges
prosecutorial misconduct, and questions the reasonableness of her
sentence. We address each issue in turn, presenting only those
facts needed to put matters into perspective. And at the end of it
all, we find no reason to reverse.
Sufficiency of the Evidence
As promised, we lead off with Munyenyezi's claim that the
evidence is insufficient for a sensible jury to believe beyond a
reasonable doubt that she infracted sections 1425(a) and (b). Hers
is an uphill fight, however. See, e.g., Polanco, 634 F.3d at 45.
Reviewing the record de novo — because (as the government concedes)
she preserved the argument below — and taking the evidence and
reasonable inferences in the light most helpful to the prosecution,
-5-
we see whether she has shown (as she must) that no rational jury
could have convicted her. See id. And so doing, we take special
care to remember our long list of "cannots": we cannot reweigh the
evidence, secondguess the jury on credibility issues (actually, we
must assume it resolved credibility disputes consistent with the
verdict), or consider the relative merits of her theories of
innocence (because what matters is not whether a jury reasonably
could have acquitted but whether it could have found guilt beyond
a reasonable doubt). See id.; see also United States v. Acosta-
Colón, 741 F.3d 179, 191 (1st Cir. 2013).
Section 1425(a) makes it a crime for a person to
"knowingly procure[] or attempt[] to procure . . . citizenship"
illegally. One way to do that is to make false statements in a
naturalization application. See 18 U.S.C. § 1001(a). And —
according to our judicial superiors — there are "four independent
requirements" for a section 1425(a) crime: "the naturalized
citizen must have misrepresented or concealed some fact, the
misrepresentation or concealment must have been willful, the fact
must have been material, and the naturalized citizen must have
procured citizenship as a result of the misrepresentation or
concealment." Kungys v. United States, 485 U.S. 759, 767 (1988);
see also United States v. Mensah, 737 F.3d 789, 808-09 (1st Cir.
2013) (discussing Kungys in exquisite detail). Section 1425(a)'s
next-door neighbor, section 1425(b), makes it a crime for a person
-6-
to "knowingly . . . procure . . . naturalization . . . or
citizenship" that she is not entitled to. One must have good moral
character to be eligible for citizenship, of course. See 8 U.S.C.
§ 1427(a). And two of the many things that negate good character
are (unsurprisingly) helping commit genocide, see 8 U.S.C.
§ 1101(f)(9), and making materially false statements to score
immigration or naturalization benefits, see id. § 1101(f)(6).
Viewed from a prosecution-friendly perspective, the
record in Munyenyezi's case is a bone-chilling read. Consider the
following examples, taken from the testimony of government
witnesses:
Richard Kamanzi told the jury that in March 1994 (about
a month before the genocide, when he was 15 years old) he saw
Munyenyezi (he had seen her before) decked out in MRND clothing,
hanging out with 45 other MRNDers near the Hotel Ihuriro. He did
not see her during the genocide, though.
But Vestine Nyiraminani did. She testified that in April
1994 she and her sister got stopped at the roadblock near the Hotel
Ihuriro. An "Interahamwe named Beatrice" — a person Nyiraminani
knew was married to Shalom Ntahobali — asked for IDs.5 Seeing that
their cards identified them as Tutsis, Munyenyezi ordered them to
sit at the side of the road with other Tutsis. A half hour later,
5
Remember that Munyenyezi's first name is Beatrice and her
husband is Shalom Ntahobali.
-7-
soldiers marched them into the woods. One of the thugs then
plunged a knife into Nyiraminani's sister's head. Nyiraminani
escaped. But she never saw her sister again.
Jean Paul Rutaganda testified about a time in April 1994
when (as a 15 year old) he and some other Tutsis hid at an
Episcopal school near the Hotel Ihuriro. Rutaganda spotted
Munyenyezi (he knew her by name) at the roadblock with
Interahamwes, wearing an MRND uniform, asking for identity cards,
and writing in a notebook. "She was counting," Rutaganda said,
"registering dead Tutsis and others who were not yet dead."
Tutsis, he added, "were killed day and night" in the nearby forest
— something he knew from the "screaming" and the "crying."
Tutsi Consolee Mukeshimana also saw Munyenyezi around
this time. Mukeshimana had seen her before (at Mukeshimana's
sister's house). And at the roadblock Mukeshimana watched a
fatigues-wearing Munyenyezi check IDs and lead Tutsis to other
"Interahamwe so they could get killed."
Desperate to leave Butare because of the killing, Tutsi
Vincent Sibomana tried to run but got detained at the roadblock.
Munyenyezi asked for an ID. He knew who she was because he had
seen her buy beer at a store where he had worked. And he had also
seen an MRND-shirt-wearing Munyenyezi walking around Butare.
Anyhow, Sibomana was too young to have an ID card, apparently (he
was only 14). An irate Interahamwe hit his head with a rifle butt.
-8-
And he fell into a ditch. More Tutsis were there. "Beatrice" — to
quote Sibomana's testimony — then told the other Interahamwes to
"kill[]" them all. Sibomana bolted. But he saw and heard Tutsis
"being killed," hacked by "machetes" and bludgeoned with "clubs."
From this evidence a rational jury could conclude that
Munyenyezi lied on her form N-400 — using "no" answers to hide her
Interahamwe membership, her role in persecuting Tutsis, and her
penchant for peddling untruths to get into America. She sees two
ways around this. Neither way works.
One is her theory that the witnesses had zero
credibility.6 They just made stuff up, she says, thinking they
would be hailed as "heros" in Rwanda for putting a Hutu behind
bars. Some witnesses were only in their teens when the killing
started, she stresses — the apparent intended inference being that
they were too young to remember important details about what had
happened. And culturally, she writes, the witnesses are inclined
to saying whatever authority figures — like "jurors" — want to
hear. Plus, she adds, in pushing their "stock" storyline, none of
them identified her in court and some of them did not know details
like whether she had children or what part of Rwanda she came from.
Her theory fails, though, and for a simple reason. Munyenyezi's
6
She, tellingly, does not claim that their testimony — if
believed — is inadequate to help convict. And, just as
importantly, she does not argue that the government failed to prove
other elements of the crimes charged, like that the statements were
knowingly made and material.
-9-
lawyer hit the credibility theme hard below — during his powerful
opening statement, his spirited cross-examination of witnesses, his
energetic evidence presentation (involving testimony from a
counter-expert about pressures Rwandans feel to testify a certain
way), and his hard-charging summation. But the jury did not buy
it. And (again) credibility choices and evidence-weighing are for
juries, not for reviewing courts. See Polanco, 634 F.3d at 45; see
generally United States v. Nascimento, 491 F.3d 25, 46 (1st Cir.
2007) (stressing that "[s]ifting through conflicting testimony and
determining where the truth lies is the sort of work that falls
squarely within the jury's province").
Munyenyezi's other way is her claim that the evidence
showed only her "mere presence" at the roadblock, which, she
reminds us, is not enough to convict. But reading the record as
required — afresh, and in the light most agreeable to the
government — we think a levelheaded jury could find that she wasn't
simply in the wrong place at the wrong time. Far from it — dressed
as an Interahamwe, she personally inspected IDs at the checkpoint,
separated those who would live from those who would die (and die
gruesomely), and kept records of the ghastly going-ons. And that
sinks her "mere presence" claim. See generally United States v.
Echeverri, 982 F.2d 675, 678 (1st Cir. 1993) (noting that a "'mere
presence' argument will fail in situations where the 'mere' is
lacking").
-10-
Enough said about the sufficiency issue.
Evidentiary Ruling
During opening statements defense counsel claimed that
Munyenyezi "couldn't read or write English" when she came to
America. And then he said — most importantly for our purposes —
that "we'll have to speculate who was translating [the immigration]
documents for her in Kenya when they were filling out those forms
all in English."
Days later the prosecutor told the judge that he wanted
to admit excerpts of Munyenyezi's testimony before the ICTR —
appearing there on her husband's behalf, she denied seeing a
roadblock near the Hotel Ihuriro or dead bodies in Butare, and she
disclaimed knowing her husband was a génocidaire. The defense
responded with a motion in limine, arguing that the ICTR evidence
should be kept out as other bad acts to prove character (her
propensity to lie about genocide), and even if not, that the danger
of unfair prejudice substantially outweighed its probative worth.
See Fed. R. Evid. 404(b) and 403; see also United States v.
Landrau-López, 444 F.3d 19, 23 (1st Cir. 2006). The government
disagreed, naturally, suggesting that the excerpts showed that she
consistently presented a set of false facts concerning what had
happened in Rwanda.
Refereeing this dispute, the judge sided with the
government, ruling the ICTR evidence relevant because it countered
-11-
the suggestion that someone had translated the key
immigration/naturalization papers for her and had "misconstrued
what she said and put it down on the form[s]." "She's consistently
said the same things," in the pertinent forms and at the ICTR, the
judge added. So, he concluded, the ICTR evidence goes to "her
knowledge," as well as "lack of accident, mistake" — legitimate
nonpropensity purposes, one and all. And the excerpts ultimately
came in through the testimony of Dr. Timothy Longman, the
government's Rwanda-genocide expert.
Munyenyezi still thinks the judge got the ICTR-excerpts
ruling all wrong. Reviewing the matter for abuse of discretion,
see United States v. Doe, 741 F.3d 217, 229 (1st Cir. 2013), we
think otherwise.7
Rule 404(b) bans other-acts evidence offered to prove a
person's character. See Fed. R. Evid. 404(b)(1). But it allows
such evidence for noncharacter purposes, like proving knowledge or
lack of mistake or accident, see Fed. R. Evid. 404(b)(2) — provided
of course the evidence's probativeness is not substantially
outbalanced by any unfair prejudice, see Fed. R. Evid. 403. The
problem for Munyenyezi is that her lawyer's opening remarks — that
she could not read or write English when she lived in Kenya, so one
7
Neither side questions whether the judge's in limine
decision was definitive enough to preserve the issue without need
for further objection, see Rodríguez v. Señor Frog's de la Isla,
Inc., 642 F.3d 28, 35 (1st Cir. 2011), so we let it pass.
-12-
must "speculate" about who translated and filled out the
immigration papers — put knowledge or absence of mistake or
accident in play. And the ICTR excerpts went to those noncharacter
issues, helping to show that her answers did not result from some
translation gaffe, because (as the judge said) the evidence
suggests that she told essentially the same story about the Rwanda
genocide at every turn. That the excerpts may have cast her in an
unflattering light does not make them excludable under Rule 403
either. Only "unfair" prejudice that "substantially" outweighs the
evidence's probative value is forbidden. See United States v.
Rodríguez-Soler, 773 F.3d 289, 296 (1st Cir. 2014). And we see
nothing unfair about letting the jury consider this evidence for
the limited purpose of dealing with an issue that came to the fore
in the defense's opening. We normally reverse a judge's Rule 403
ruling "only where [his] judgment is egregiously wrong." United
States v. Adams, 375 F.3d 108, 111 (1st Cir. 2004). And nothing
egregious screams off the pages of the record here.8
Munyenyezi's counter-arguments are not difference-makers.
First she accuses the judge of not performing a Rule 404(b)
8
The government argues that the ICTR excerpts are intrinsic
— not extrinsic — evidence and so not subject to Rule 404(b).
See United States v. Souza, 749 F.3d 74, 84 (1st Cir. 2014)
(discussing intrinsic and extrinsic evidence). But because we find
no abuse of discretion even if the excerpts constitute extrinsic
evidence, we need not grapple with this issue. See United States
v. Jimenez, 507 F.3d 13, 18 (1st Cir. 2007) (taking that same
tack).
-13-
analysis. As already shown, the judge did do one in denying her in
limine motion. He just did not redo it when Dr. Longman took the
stand, probably because she did not ask him to reconsider his
earlier ruling. Next she accuses the government of misleading the
judge, an accusation that goes something like this: the prosecutor
said that he would not use the ICTR excerpts to paint her as a
persistent liar but then did precisely that, like when he said
during closing arguments that her ICTR testimony was part of a
family "script." She does not raise an issue of prosecutorial
misconduct with the closing, however. She just uses the comments
to highlight why the judge abused his discretion by admitting the
evidence in the first place. We need not take a position on this
point, though, because any error (if error there was) was harmless
given the vast and damning array of evidence against her. See
United States v. Dunbar, 553 F.3d 48, 59-60 (1st Cir. 2009)
(discussing the harmless-error standard when it comes to admitting
evidence).
Two issues down, two to go.
Prosecutorial Misconduct
Munyenyezi next claims the judge should have granted a
mistrial based on the prosecutor's suggestive questioning. Here is
what you need to know.
Kicking off the trial, the judge cautioned the jury that
a lawyer's "questions are not evidence. So if a counsel asks a
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question of a witness that assumes a fact, there's no evidence of
that fact unless the witness accepts the fact." And the judge's
antenna shot up — and he took corrective action — when either
side's counsel asked questions that assumed facts not in evidence.9
Munyenyezi's claim centers on the prosecutor's cross-
examination of defense witness Marie Alice Ahishakiye, a cook at
the Hotel Ihuriro during the genocide. "Did you travel to Boston
last year?" the prosecutor asked. "Yes," Ahishakiye replied.
"And," the prosecutor said, "you were there for a proceeding
involving Prudence Kantengwa; were you not?" Kantengwa is
Munyenyezi's sister, by the way, and earlier the government
introduced evidence showing Kantengwa faced "perjury" charges in
Boston. "I don't think I know of Kantengwa," Ahishakiye answered.
9
During the defense's cross-examination of Dr. Longman, for
example, the judge sustained the government's objection to this
line of questioning:
Q. Are you aware that you are on the Friends of Evil
list that is propagated by the state-run media out of
Rwanda?
A. I don't think I knew that, no.
Q. And they are extremely critical of your views —
[PROSECUTOR]: Objection.
THE COURT: Sustained.
And then the judge said:
You're not testifying . . . . Questions can be asked,
but the questions are not themselves evidence. And facts
assumed in the question [are] not evidence. So there's
no evidence of such a thing. The witness hasn't heard of
it.
-15-
The prosecutor then asked Ahishakiye about Kantengwa's
husband, Athanase Munyemana. Ahishakiye admitted that she had
picked Munyemana out of a photo before. "[Y]ou knew that he was
the director of the secret police for the MRND government," the
prosecutor said next, which drew a sustained objection from defense
counsel. And before breaking for lunch the judge reminded the jury
that facts assumed in questions are not evidence.
Munyenyezi's lawyer moved for a mistrial, claiming
prosecutorial misconduct. The defense's theory was straightforward
enough. The prosecutor, the defense argued, botched the Ahishakiye
cross by assuming two facts in his questions — that Ahishakiye had
testified at Kantengwa's perjury trial (even though the prosecutor
knew that she had not) and that Munyemana once headed the MRND
secret police (even though the prosecutor had no basis for that
claim).
On the first issue — concerning the question about
testifying at Kantengwa's trial — the prosecutor fessed up to a
mistake, saying he had a document showing Ahishakiye had come to
America the year before and wrongly thought she had done so to
testify for Kantengwa. Calling the travel question "pretty
dramatic," the judge said the prosecutor should correct the record
for the jury. And the prosecutor did just that, explaining in open
court that he wrongly assumed in his question that Ahishakiye had
gone to Boston to testify for Kantengwa — "in fact," he stressed,
-16-
she had actually traveled to New Hampshire to testify "in a prior
proceeding involving" Munyenyezi. The judge jumped in, telling the
jury that
[w]hat the prosecutor has just clarified for
you is that when he asked those questions one
might think that there's an implication that
she did do those things, and the prosecutor
had a good faith basis for thinking that was
so, but . . . the parties have learned that's
not the case so they're clarifying that for
you so you don't take that into account in
determining the issues that are before you.
"Does that do it?" the judge asked. Both sides agreed that it did.
On the second issue — concerning the secret-police
question — the prosecutor argued (and Munyenyezi does not contest)
that he had a good-faith basis for touching on that topic, given
that testimony at Kantengwa's trial suggested Rwanda had a secret-
police agency. And, the prosecutor said, he believed that
Ahishakiye would name Munyemana as its head (though the record is
not exactly clear why he thought she would finger Munyemana as the
head). "Are you suggesting he has no good faith basis to ask the
question?" the judge asked defense counsel. "No," counsel said.
The judge later denied the mistrial motion. The
prosecutor's "concession and my instruction to the jury," the judge
said, effectively "cured any prejudice" that may have arisen
because of the travel question. And, he added, the prosecutor had
a good-faith basis for asking the secret-police question. The
judge offered to give a curative instruction regarding the secret-
-17-
police question, which, he said, would tell the jury (again) that
facts assumed in questions are not evidence. But the defense
declined. "You know," the judge went on to say, "watching [the
jurors'] reaction[s]" to what had happened, "if they understand one
thing very, very well, they understand that questions of counsel
are not evidence of the facts assumed in the questions." Still,
the judge told the jury in his final charge that "[a]rguments,
statements, and questions by lawyers are not evidence," and that
"questions by lawyers are not evidence of any facts assumed in the
questions."
Unshaken in her belief that the prosecutor's questioning
required a mistrial, Munyenyezi blasts away at the judge's ruling.
As she tells it, the prosecutor's actions — posing questions with
"no evidentiary foundation" — rendered the trial fundamentally
unfair by creating the misimpression that Ahishakiye was either
lying or had a very bad memory. But what hurts her is the standard
of review — we inspect the judge's ruling only for abuse of
discretion, see Dunbar, 553 F.3d at 58, which means his decision
stands unless no reasonable person could have ruled as he did, see
United States v. Maldonado, 708 F.3d 38, 42 (1st Cir. 2013). The
reason for this is that a district judge is much closer to the
trial action than we can ever be and so is better positioned to see
if prejudicial matter presented there could likely affect the
case's outcome. See United States v. Pierro, 32 F.3d 611, 617 (1st
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Cir. 1994). Granting a mistrial is strong medicine, of course —
prescribed only as a last resort if the alleged harm cannot be
overcome with less-drastic remedies, like curative instructions.
See United States v. De Jesus Mateo, 373 F.3d 70, 73 (1st Cir.
2004).
With all this in mind, we think the judge handled the
suggestive-questioning issue with sufficient sensitivity to
Munyenyezi's fair-trial rights, taking timely action to minimize
the risk of undue prejudice. He had the prosecutor face the jury,
for example, and confess error on the subject of Ahishakiye's
travels. And he followed that up with an instruction telling the
jury not to take the prosecutor's questions on that point into
account. The defense rejected the judge's offer of a curative
instruction regarding the secret-police question. No matter,
though. At every other turn (including during his final charge),
the judge carefully instructed the jury that questions that assume
facts are not evidence. We normally assume that juries follow
instructions. See Acosta-Colón, 741 F.3d at 202 n.13. And we see
no reason to stray from that practice here: remember, having
watched the jurors closely, the judge said that he was "absolutely
convinced" that they "completely" understood "that questions of
counsel are not evidence of the facts assumed in the questions,"
and Munyenyezi gives us nothing to contradict his ring-side take on
the case. Also hurting her is the fact that the abundance of
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evidence against her "dwarf[s]" the complained-about prejudice
arising from these few questions.10 See United States v.
Butterworth, 511 F.3d 71, 76 (1st Cir. 2007).
The bottom line is this. We reverse mistrial denials
only under "extremely compelling circumstances." Pierro, 32 F.3d
at 617. And the circumstances here do not come within a country
mile of satisfying that standard.11
Sentence Length
That brings us to Munyenyezi's complaints about her 120-
month sentence — the maximum term permitted by statute but well
above the 0-6 month advisory guideline range (a range recommended
by probation, which the judge adopted, without objection). Simply
put, she thinks the sentence is too long — that it is (in legalese)
10
Munyenyezi says in a footnote that the prosecutor asked a
rebuttal witness whether she knew Munyemana was an MRND
"intelligence officer," suggesting that this question crossed the
line too. But she floats this idea only in passing, which means
any argument lurking there is waived. See, e.g., Nat'l Foreign
Trade Council v. Natsios, 181 F.3d 38, 60 n.17 (1st Cir. 1999)
(explaining "that arguments raised only in a footnote or in a
perfunctory manner are waived").
11
As a fallback, Munyenyezi also thinks that the prosecutor's
conduct violated her Sixth Amendment right to confront witnesses
who say they had "personal knowledge of a 'secret police'
organization in Rwanda at the time of the genocide" or who say they
had "personal knowledge" that Munyemana ran the secret police. But
because she cites no authority for this argument (nor does she
offer any convincing explanation of what the law should be,
assuming she found no authority), she has waived it. See, e.g.,
Medina-Rivera v. MVM, Inc., 713 F.3d 132, 140-41 (1st Cir. 2013);
Town of Norwood v. Fed. Energy Regulatory Comm'n, 202 F.3d 392, 405
(1st Cir. 2000).
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substantively unreasonable. Such an argument is usually a tough
sell. After all, there is no "perfect sentence," but, instead, "a
wide universe of supportable sentencing outcomes." United States
v. Del Valle-Rodríguez, 761 F.3d 171, 177 (1st Cir. 2014). We look
only for abuse of discretion. See, e.g., United States v. Medina-
Villegas, 700 F.3d 580, 583 (1st Cir. 2012). And as long as we see
"a plausible sentencing rationale" that reaches "a defensible
result," the sentence stands. United States v. Martin, 520 F.3d
87, 96 (1st Cir. 2008). So it is here, as we now explain.
Munyenyezi first faults the judge for departing upward
from that range under section 5K2.8 of the federal sentencing
guidelines. That section lets a judge depart upward if he finds
"the defendant's conduct was unusually heinous, cruel, brutal, or
degrading to the victim." See USSG § 5K2.8 (2002 edition). But in
fact the judge denied the prosecutor's request for a section-5K2.8
departure. Which pours cold water on this argument.12
The judge did rule that the case called for either an
upward departure under section 5K2.0 or, alternatively, an upward
variance under 18 U.S.C. § 3553(a). Section 5K2.0 lets a judge
depart upward if he finds aggravating circumstances of a kind or
degree not adequately taken into account by the guidelines. See
12
The judge could not have been any clearer. "I think 5K2.8
is not a legitimate legal basis to grant a departure," the judge
said to the prosecutor, "[s]o, to the extent your motion is based
on 5K2.8, that's denied."
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USSG § 5K2.0 (2002 edition).13 Section 3553(a) lets a judge vary
upward based on factors listed there, like the defendant's
background (including her criminal history), the circumstances of
the offense, the seriousness of the offense, the need to protect
and deter others, the need to promote respect for the law and to
provide a just punishment, and the need to eliminate unjustified
sentencing disparities.14 And the judge made clear that she would
receive the same sentence either way.
Munyenyezi attacks the judge's ruling on several fronts.
None carries the day.
For starters, Munyenyezi criticizes the judge for not
considering recently-amended guideline section 2L2.2 in his
departure analysis — a section that specifically discusses
sentencing enhancements for genocide-related acts. See USSG
§ 2L2.2 (2012 edition).15 If the judge had applied section 2L2.2,
13
A judge can depart downward in certain situations too. See
USSG § 5K2.0 (2002 edition) (discussing "mitigating
circumstances").
14
Under certain circumstances a judge can also vary downward
using section 3553(a).
15
Section 2L2.2 (2012 version) reads, in relevant part:
Fraudulently Acquiring Documents Relating to
Naturalization, Citizenship, or Legal Resident Status for
Own Use; False Personation or Fraudulent Marriage by
Alien to Evade Immigration Law; Fraudulently Acquiring or
Improperly Using a United States Passport
(a) Base Offense Level: 8
(b) Specific Offense Characteristics
. . .
(4) (Apply the Greater):
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she argues, her "genocidal conduct" would have been "taken into
account," making her ineligible for a 5K2.0 enhancement — and her
guideline range would have been 57-71 months, a range well below
the 10-year statutory maximum. That is because a judge using
section 2L2.2 can set the upper end of a defendant's sentencing
range at the statutory maximum if the defendant committed a
"serious human rights offense" and has a criminal history category
of VI. Munyenyezi has a criminal history category of I, which as
we just said would have yielded a guideline range of 57-71 months
if section 2L2.2 held sway.
A couple of things pull the rug out from under
Munyenyezi's theory, however. One, section 2L2.2 — the judge found
and the parties agree — does not apply here because of ex post
facto concerns. And two, the judge actually did consider that
section, checking solely to see if it offered any guidance on the
departure issue. He just found that it did not, concluding that
regardless of her criminal history category, the "facts" that made
her immigration/naturalization "statements lies" — i.e., the facts
that showed her to be a génocidaire — are so "disturbing" that she
. . .
(B) If the defendant committed any part of
the instant offense to conceal the defendant's
participation in (i) the offense of incitement
to genocide, increase by 6 levels; or (ii) any
other serious human rights offense, increase
by 10 levels. If clause (ii) applies and the
resulting offense level is less than 25,
increase to level 25.
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deserved the maximum sentence permitted by statute. Munyenyezi
never pinpoints any error in the judge's conclusion, which means
she has waived any argument she might have had. See, e.g.,
Rodríguez v. Municipality of San Juan, 659 F.3d 168, 175 (1st Cir.
2011).
Turning to section 3553(a), Munyenyezi protests that the
judge punished her without knowing whether the jury found that she
had lied about being a génocidaire or about being a member of a
political party — he did not know, the argument goes, because the
jury used a general-verdict form. But a judge can find facts for
sentencing purposes by a preponderance of the evidence, so long as
those facts do not affect either the statutory minimum, see Alleyne
v. United States, 133 S. Ct. 2151, 2155 (2013), or the statutory
maximum, see Apprendi v. New Jersey, 530 U.S. 466, 490 (2000) —
exceptions not implicated here. And the judge did exactly that,
finding a preponderance of proof that she had lied to hide her
genocidal past.16
Which takes us to Munyenyezi's next section 3553(a)
argument — that the judge sentenced her as a génocidaire even
though he said he would not. Despite what she thinks, the judge
16
She "personally participated in the mass killing" of
innocents "merely because they were called Tutsi," the judge found
— "mann[ing] the infamous roadblock in Butare" near the Hotel
Ihuriro; checking IDs, keeping records, and "sort[ing] out who
would die from those who would live"; and "direct[ing]" and
"facilitat[ing] murder."
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kept his word, explicitly hitting her with the statutory maximum
not as "punishment for genocidal conduct" but because her lies were
the "most serious" infractions "of section 1425 that one can
describe." She "is not accountable in this court" for her
genocidal acts, the judge stressed. But "she is accountable for
lying to obtain refuge and citizenship for which she was not
qualified." And "lying about participation in genocide when
specifically asked," the judge explained, knowing full well "that
such conduct is automatically disqualifying with respect to
immigration and citizenship seriously undermines the integrity of
this country's immigration standards in the most offensive way"
imaginable. The judge drove home these points a little later in
the hearing, saying that if he "were to impose a sentence" for her
"participation in the Rwandan genocide," it
would not be a sentence of ten years to be
served concurrently on each count[;] it would
be a sentence of, at minimum, obviously life
in prison. The sentence imposed here is far
too lenient and entirely inadequate to
sanction acts of genocide. It is, however,
within the range of punishments contemplated
by Congress . . . and is adequate to sanction
the most egregious violations of section 1425
that one can imagine.
And in exercising his judgment, the judge expressly tied
the sentence to the relevant section 3553(a) factors, like
protecting the community and deterring criminal wrongdoing,
promoting respect for the law, and providing a just punishment.
"We cannot abide this country being a haven for génocidaires," the
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judge emphasized. Citizenship applicants must know, he added, that
if they "lie" about taking part in genocide, "the punishment for
that fraud will not be lenient." By our lights, the judge's
analysis is plausible and defensible.
As a last-ditch effort, Munyenyezi complains that her
sentence is at "odds" with much-less severe sentences imposed by
two other district judges in this circuit in two (supposedly)
similar cases. And she suggests that the judge's failure to give
her a sentence like the ones in the other two cases slighted
section 3553(a)(6), which requires judges to consider "the need to
avoid unwarranted sentence disparities." But that section
primarily refers to national disparities among similarly situated
defendants. See United States v. Ayala-Vazquez, 751 F.3d 1, 32
(1st Cir. 2014). Unfortunately for her, she never explains how her
situation fits that bill. So any argument in this direction is
waived. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir.
1990).
Final Words
Wrapping up, we affirm Munyenyezi's convictions and
sentence.
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