Submitted: May 16, 2018
from United States District Court for the Northern District
of Iowa - Cedar Rapids
SHEPHERD, MELLOY, and GRASZ, Circuit Judges.
SHEPHERD, CIRCUIT JUDGE.
Rwandan Genocide is one of the darkest chapters in human
history. Over the span of 100 days, an estimated 800, 000
people died. At least a million more were displaced. During
and shortly after the tragedy, the United States admitted a
limited number of refugees from Rwanda with priority given to
those who were in the most danger. Among those admitted were
Gervais ("Ken") Ngombwa and purported members of
his family. The government alleged and proved at trial that
his admission, status, and eventual naturalization were based
on material falsehoods. And at sentencing, the government
proved to the district court's satisfaction that the
falsehoods were used to conceal a darker secret:
Ngombwa's participation in the Rwandan Genocide.
now alleges he deserves a new trial because his
representation was constitutionally deficient and, failing
that, he should be re-sentenced because the district court
made several errors at sentencing. We disagree and affirm his
conviction and sentence.
the Rwandan Genocide, life and death were tied to one's
ethnic background. The decisive fault line was between the
Hutus and Tutsis. The former made up 85% of the population;
the latter made up roughly 14%.
between the two ethnic groups have historically been fraught.
In 1993, major parties representing both ethnicities entered
into a power-sharing agreement known as the Arusha Accords.
The leader of this power-sharing government, a Hutu, was
assassinated in April of 1994. Extremist Hutu groups, already
unhappy with the Arusha Accords, seized on this moment. They
unleashed a wave of mass murder and violence against both
Tutsis and those Hutus who were thought to sympathize with
the Tutsis in what is now known as the Rwandan Genocide.
this backdrop, Ngombwa, a Hutu, sought refuge in the United
States. In June 1994, two months after the outbreak of the
Genocide, Ngombwa left Rwanda for a refugee camp in Tanzania.
With him were his purported wife, Antoinette Mukakabanda (a
Tutsi), and seven minors-only some of whom were his
biological children. Ngombwa was flagged for potential
resettlement because he was believed to be in a mixed
marriage. And in 1998, he began a series of interviews with
UN officials, aid workers, and, eventually, a U.S.
immigration attache, to assess whether he (and his alleged
family) should be granted refugee status in the United
the course of these interviews, Ngombwa told a number of
lies. These falsehoods were designed to enhance the perceived
risks if he were to stay in the region. See Sent.
Mem. 10-13. For example, he lied that he and Mukakabanda (and
her mother) were arrested and beaten in the Rwandan capital.
One lie, though, was particularly egregious-and particularly
helpful to his claim. At trial, the U.S. immigration attache
who interviewed him, Joe Martin, testified that Ngombwa's
assertion that he was the brother of a prominent moderate
Hutu politician, Faustin Twagiramungu-who was perceived as
sympathetic to Tutsis-proved decisive to his refugee claim.
On the basis of this false statement and many others,
Ngombwa, Mukakabanda, and the seven minors (all of whom were
thought to be their children), were resettled in the United
States at the end of 1998.
eventually became a citizen of the United States in 2004.
When he applied to become a permanent resident in 2001 and a
citizen in 2003, he affirmed, among other things, that he
never obtained an immigration benefit or entered the United
States through fraud or willful misrepresentation. His
purported children also gained citizenship through derivative
applications. Ngombwa's naturalization was not to be the
last time he dealt with immigration authorities, however.
years after Ngombwa's naturalization, Department of
Homeland Security ("DHS") investigators received a
tip. It was not a run-of-the mill tip nor was it from a
run-of-the-mill source. Prosecutors in Rwanda informed DHS
that they had credible information that a perpetrator of the
Rwandan Genocide was residing in the United States. That tip
sparked an investigation-marked by numerous interviews in
Rwanda over the span of three years and extensive document
review-that led to Ngombwa's doorstep in Cedar Rapids,
2014, Ngombwa was interviewed twice by DHS investigators. By
this time, investigators had learned that Ngombwa had twice
been convicted in absentia by Rwandan tribal courts
(known as "GACACA courts") for participation in the
Rwandan Genocide. He had also been named in an indictment in
the International Criminal Tribunal for Rwanda as a
participant in the Genocide. And around the time DHS first
spoke to him in June 2014, he was indicted by Rwandan
prosecutors for genocide. During his interviews with DHS
investigators, Ngombwa recanted many things he initially told
U.S. and aid officials in the Tanzanian refugee camp.
Curiously, he maintained that he never said he was related to
the moderate Hutu politician Twagiramungu-a fact U.S.
immigration officials found critical to his refugee claim.
October 2014, shortly after the last time Ngombwa spoke with
DHS investigators, a grand jury returned a four-count
indictment against Ngombwa. Three counts alleged
Ngombwa's unlawful procurement of naturalization and
conspiracy to commit the same. See 18 U.S.C.
§§ 1425, 371. The last count charged him with
falsely stating to investigators that he never claimed he was
related to Twagiramungu. See id. § 1001(a)(2).
Ngombwa went to trial, where it was agreed that no reference
was to be made to evidence of Ngombwa's personal
participation in the Genocide. He was convicted on all four
counts. Post trial, he filed a motion for a new trial on the
basis of ineffective assistance of counsel ("IAC").
The district court denied that motion, and Ngombwa proceeded
district court granted Ngombwa's request to merge two
counts of naturalization fraud for sentencing purposes, which
meant that he would be sentenced on one count of
naturalization fraud, one count of conspiracy to do the same,
and one false-statement count. At sentencing, the district
court heard evidence about Ngombwa's participation in the
Rwandan Genocide. Largely driven by this evidence,
Ngombwa's Guideline range was set at 100-125 months
imprisonment. The district court eventually imposed an
above-Guidelines sentence of 180 months.
now appeals the denial of his motion for a new trial and his
sentence. We examine each in turn.
first task is to ensure that review of Ngombwa's IAC
claim is proper at this stage because "[g]enerally 
[IAC] claims are better left for post-conviction
proceedings." United States v. Long, 721 F.3d
920, 926 (8th Cir. 2013) (internal quotation marks omitted).
We address IAC "claims on direct appeal only where the
record has been fully developed, where not to act would
amount to a plain miscarriage of justice, or where
counsel's error is readily apparent." United
States v. Hubbard, 638 F.3d 866, 869 (8th Cir. 2011)
(internal quotation marks omitted).
case, "the district court held an evidentiary hearing at
which it allowed [the defendant] to present evidence
regarding the alleged ineffective assistance of
counsel." See United States v. Orr, 636 F.3d
944, 950 (8th Cir. 2011) (alteration in original) (internal
quotation marks omitted). Ngombwa's claim relates to
trial counsel's investigation of certain witnesses. The
district court allowed Ngombwa to present evidence, through
live testimony and affidavit, on how those witnesses would
have bolstered his defense. And trial counsel submitted
multiple affidavits in addition to testifying at the
evidentiary hearing. Given this, we find that "the trial
court developed a record sufficient to examine counsel's
performance" on direct review. Hubbard, 638
F.3d at 869. The parties agree as well. See Orr, 636
F.3d at 950 (finding "additional justification for
reviewing ineffective-assistance claims on direct appeal when
the parties concur that the record is fully developed and
thus ripe for review"). Thus, we proceed and review the
district court's decision to deny a new trial on IAC
grounds for abuse of discretion. United States v.
Thompson, 690 F.3d 977, 992 (8th Cir. 2012).
succeed on an IAC claim, a party "must show: (1) trial
counsel's performance was so deficient as to fall below
an objective standard of the customary skill and diligence
displayed by a reasonably competent attorney, and (2) trial
counsel's deficient performance prejudiced the
defense." Long v. United States, 875 F.3d 411,
413 (8th Cir. 2017) (internal quotation marks omitted). We
find that Ngombwa has failed to make the requisite ...