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United States v. Ngombwa

United States Court of Appeals, Eighth Circuit

June 22, 2018

United States of America Plaintiff- Appellee
v.
Gervais (Ken) Ngombwa Defendant-Appellant

          Submitted: May 16, 2018

          Appeal from United States District Court for the Northern District of Iowa - Cedar Rapids

          Before SHEPHERD, MELLOY, and GRASZ, Circuit Judges.

          SHEPHERD, CIRCUIT JUDGE.

         The 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[1] satisfaction that the falsehoods were used to conceal a darker secret: Ngombwa's participation in the Rwandan Genocide.

         Ngombwa 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.

         I.

         During 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%.

         Relations 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.

         Against 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.[2] 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 States.

         Over 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.

         Ngombwa 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.

         Many 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, Iowa.

         In 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.

         In 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 to sentencing.

         The 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.

         Ngombwa now appeals the denial of his motion for a new trial and his sentence. We examine each in turn.

         II.

         Our 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).

         In this 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).

         To 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 ...


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