United States Court of Appeals For the First Circuit
No. 19-2041
BEATRICE MUNYENYEZI,
Petitioner, Appellant,
v.
UNITED STATES OF AMERICA,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Steven J. McAuliffe, U.S. District Judge]
Before
Thompson and Kayatta, Circuit Judges.
Richard Guerriero, with whom Lothstein Guerriero, PLLC, was on brief, for petitioner. Mark T. Quinlivan, Special Assistant United States Attorney, with whom Scott W. Murray, United States Attorney, District of New Hampshire, and Andrew E. Lelling, United States Attorney, District of Massachusetts, were on brief, for respondent.
Judge Torruella heard oral argument in this matter and participated in the semble, but he did not participate in the issuance of the panel's opinion in this case. The remaining two panelists therefore issued the opinion pursuant to 28 U.S.C. § 46(d). March 3, 2021 KAYATTA, Circuit Judge. Petitioner Beatrice Munyenyezi
was convicted of procuring naturalization based on false
statements to immigration officials about her conduct during the
Rwandan genocide, see 18 U.S.C. § 1425(a), and of procuring
naturalization as an ineligible person, see id. § 1425(b). Six
years ago, we affirmed her conviction and sentence. United States
v. Munyenyezi, 781 F.3d 532 (1st Cir. 2015). Two years later, in
Maslenjak v. United States, 137 S. Ct. 1918 (2017), the Supreme
Court described the role that a falsehood need play in acquiring
citizenship to prove a violation of section 1425(a). Pointing to
differences between that description and the instructions given to
the jury in her case, Munyenyezi seeks vacatur of her conviction
through a petition for habeas corpus relief under 28 U.S.C.
§ 2255(a). Because Munyenyezi was not actually prejudiced by the
instructions as given, we affirm the district court's denial of
Munyenyezi's petition. Our reasoning follows.
I.
A detailed discussion of the background of this case,
including Munyenyezi's trial, appears in our above-cited opinion
affirming Munyenyezi's conviction and sentence on direct appeal.
We summarize that background briefly to provide relevant context
for our discussion in this post-conviction litigation.
This case arises out of the 1994 Rwandan genocide, during
which members of Rwanda's majority ethnic group, the Hutus, killed
- 3 - more than 700,000 Rwandans, mostly Tutsis, a minority ethnic group.
The killing occurred at the behest of Rwanda's ruling party, the
Hutu-dominated National Republican Movement for Democracy and
Development ("MRND"). The MRND, led by President Juvénal
Habyarimana, rose to power in 1973. President Habyarimana remained
in office until his assassination on April 6, 1994, an event that
brought Rwanda's long-running ethnic tensions to a head. MRND
leaders seized on the president's death as an opportunity to demand
violence against Tutsis. Members of the military, police, and the
Interahamwe, the MRND's youth militia, responded by carrying out
mass killings. Across Rwanda, local militias constructed
roadblocks where they checked passing Rwandans' identification
cards to determine their ethnicity. The militias detained Tutsis
and then abused, tortured, and killed them. The campaign to
eliminate Tutsis continued until July 1994.
On April 19, 1994, a speech by Rwanda's new president to
officials of the southern Rwandan city of Butare prompted a
systematic effort to hunt Tutsis in Butare using patrols and
roadblocks. One of those deadly roadblocks was on Butare's main
road in front of the Hotel Ihuriro.
The Hotel Ihuriro was home during the genocide for
Petitioner Beatrice Munyenyezi, her husband, and their young
child. Several facts about the occupants of the Hotel Ihuriro are
uncontested: Munyenyezi's husband, Shalom Ntahobali, was the son
- 4 - of the hotel's owners. Shalom's mother, Pauline Nyiramasuhuko,
was an MRND cabinet minister. His father, Maurice Ntahobali, was
a former politician and the head of the National University in
Butare. Shalom himself led Butare's Interahamwe militia, which
supervised the roadblock in front of the Hotel Ihuriro, and he
developed a reputation as a brutal murderer.
The dispute between the government and Munyenyezi
centers on what Munyenyezi herself did during the genocide and
whether she honestly described those actions to immigration
officials. Between 1995 and 2003, Munyenyezi successively and
successfully sought status as a refugee, which required a special
"Visa 6" security clearance; as a lawful permanent resident; and
then as a naturalized citizen of the United States. During this
lengthy march to citizenship, she submitted to formal interviews
and completed various application forms, including a questionnaire
specifically tailored for applicants who had been in Rwanda since
April 1, 1994 ("the Rwandan Questionnaire") and an application for
naturalization known as Form N-400.
Several years after her naturalization, Munyenyezi drew
the attention of United States officials when she testified on her
husband's behalf at an international criminal court, claiming that
there was no roadblock near her family's hotel and that her husband
was not involved in the genocide. Munyenyezi, 781 F.3d at 536.
- 5 - After an investigation, the government concluded that Munyenyezi
made the following five false statements on her Form N-400:
One, in response to a question on her Form N-400 that asks, ["]have you ever . . . been a member of or associated with any organization, association, fund, foundation, party, club, society, or similar group in the United States or in any other place,["] . . . [Munyenyezi] did not disclose her membership in and association with the MRND and Interahamwe, and she responded by putting an "X" in the box marked ["]no[."]
Two, in response to a question on her N-400 that asked, ["]have you ever persecuted, either directly or indirectly, any person because of race, religion, national origin, membership in a particular social group or political opinion,["] . . . [Munyenyezi] responded by putting an "X" in the box marked "no" and failed to disclose her direct and indirect persecution of Tutsis during the Rwandan genocide.
Three, in response to a question on her N-400 that asked, ["]have you ever committed a crime or offense for which you were not arrested,["] . . . [Munyenyezi] failed to disclose her participation in genocide, murder, rape, kidnapping, and theft, and responded by putting an "X" in the box marked "no." The government also alleges that [Munyenyezi] failed to disclose that she had previously violated United States criminal laws by providing false information in immigration interviews and documents, that is, the Form I-590, Form G-646, the Rwandan questionnaire, and Form I-485.
Four, in response to a question on her Form N- 400 that asked, ["]have you ever given false or misleading information to any U.S. official while applying for any immigration benefit or to prevent deportation, exclusion, or removal,["] . . . [Munyenyezi] responded by
- 6 - putting an "X" in the box marked "no" and failed to disclose false information she provided in previous [i]mmigration documents, that is, the Form I-590, Form G-646, the Rwandan questionnaire, and Form I-485.
Five, in response to a question on her N-400 that asked, ["]have you ever lied to any U.S. Government official to gain entry or admission into the United States,["] . . . [Munyenyezi] responded by putting an "X" in the box marked "no" and failed to disclose the false information she provided on the Form I-590, Form G-646, and the Rwandan questionnaire.
A federal grand jury indicted Munyenyezi. In count one,
the government alleged that Munyenyezi violated section 1425(a)
when she "knowingly procure[d] . . . her own naturalization
contrary to law . . . by knowingly providing false and fraudulent
information as to material facts in her . . . Form N-400." See 18
U.S.C. § 1425(a). In count two, the government alleged that
Munyenyezi was "not entitled" to naturalization because -- among
other reasons -- she gave materially false information during the
immigration process and that she violated section 1425(b) by
nevertheless "knowingly procur[ing] . . . [her] naturalization."
See id. § 1425(b).
The first jury to consider the evidence deadlocked,
necessitating a mistrial. Munyenyezi's retrial ended in her
conviction on both counts.
Numerous Rwandan witnesses testified during the
government's case-in-chief. At least four eyewitnesses testified
- 7 - that they saw Munyenyezi decked out in the MRND's distinctively
colored clothing, checking IDs and culling out Tutsis at the
roadblock. Munyenyezi, 781 F.3d at 537. One of those eyewitnesses
reported that Munyenyezi gave orders to have several Tutsis killed.
Id.
Several immigration officials testified about how
statements disclosing this activity would have affected
Munyenyezi's various applications in her pursuit of eventual
naturalization. That testimony established that naturalization
would probably have been denied if she had admitted to
participating in persecution, to committing a crime such as
kidnapping for which she had not been arrested, or to helping the
Interahamwe check identification cards at the roadblock.
Government witnesses also explained how knowledge of MRND
membership would have cast serious doubt on her receipt of a Visa 6
security clearance and would have at least led to much more inquiry
that may well have resulted in a denial of her applications.
Following closing arguments, the trial judge instructed
the jury that the "government must prove each of the following
essential elements beyond a reasonable doubt" to establish a
violation of section 1425(a): "First, that the defendant procured
or attempted to procure United States citizenship. And second,
that it was contrary to the law for the defendant to procure such
citizenship. And third, that the defendant knowingly and
- 8 - intentionally provided materially false statements on her
Application for Naturalization, Form N-400."
The judge next explained that "[t]he government alleges
that the defendant procured United States citizenship [']contrary
to law['] because it claims she violated federal law which makes
it unlawful to give false material statements in connection with
procuring or attempting to procure immigration and naturalization
benefits."
The judge then explained to the jury that to find that
Munyenyezi violated section 1425(a), it had to "agree with regard
to which specific false statement or statements the government has
proved beyond a reasonable doubt" out of the five statements listed
above. And to find that the government proved the falsity of
statements four and five, the judge instructed that the jury had
to "agree as to at least one prior material false statement." On
appeal, both parties presume that the phrase "prior material false
statement" refers only to a false statement about the conduct
covered by statements one, two, or three.
The trial judge told the jury that a statement is
"material" if
it has a natural tendency to influence or to be capable of influencing the decision of the decisionmaker to which it was addressed. So, in this case, a statement is "material" if the statement had a natural tendency to influence, or was capable of influencing, the decision of a government agency in making a determination
- 9 - required to be made. The government need not show that the agency was actually influenced by the statement involved. If a statement could have provoked governmental action, it is material regardless of whether the agency actually relied upon it.
After this court affirmed Munyenyezi's conviction and
sentence, she filed a timely habeas petition pursuant to 28 U.S.C.
§ 2255(a) seeking relief on several grounds. Her petition was
pending when the Supreme Court held in Maslenjak v. United States,
137 S. Ct. 1918 (2017), that the government must show "that an
illegality played some role in [the] acquisition" of citizenship
to prove a violation of section 1425(a). Id. at 1925. With the
district court's permission, Munyenyezi added a claim to her
section 2255 petition challenging the materiality instruction
based on Maslenjak.
The district court rejected the claims raised in her
initial section 2255 petition but did not address her Maslenjak
claim. Munyenyezi obtained a certificate of appealability from
this court as to the Maslenjak claim alone. After we remanded to
allow the district court to address the claim in the first
instance, the district court denied Munyenyezi's petition,
reasoning that any error in the jury instructions was harmless
beyond a reasonable doubt. Munyenyezi then filed this timely
appeal.
- 10 - II.
To prevail on the claim for relief under 28 U.S.C.
§ 2255(a), Munyenyezi need show that her sentence "was imposed in
violation of the Constitution or laws of the United States" or "is
otherwise subject to collateral attack." 28 U.S.C. § 2255(a).
Munyenyezi did not raise at trial the argument now advanced in her
post-conviction request for relief. So, to rule in her favor, we
would need to find not only that there was error in her trial, but
also that there was "cause" not to have objected to the error and
that "'actual prejudice' result[ed] from the error[]." United
States v. Frady, 456 U.S. 152, 167–68 (1982). As did the district
court, we put to one side the "cause" requirement -- and the
government's arguments on that issue and others -- to go right to
the question of whether, assuming error, there was actual prejudice
as a result of that error.
To ascertain prejudice, we first examine the precise
nature of the error said to have caused actual prejudice.
Munyenyezi directs our attention to the jury instruction
concerning the required relationship between a lie and the grant
of citizenship. Drawing on the notion of materiality, the trial
judge told the jurors that, in order to support a conviction, a
false statement must have "a natural tendency to influence, or
[be] capable of influencing, the decision" of an immigration
officer. The judge further explained that it is enough if the
- 11 - statement "could have provoked governmental action"; it need not
have "actually" done so.
Munyenyezi argues that that instruction was error
because it did not comport with what the Supreme Court subsequently
required in Maslenjak to show that a defendant "knowingly
procure[d] . . . , contrary to law, the naturalization of any
person." 18 U.S.C. § 1425(a). In Maslenjak, the trial court
instructed the jury that it could convict based on a finding that
the defendant lied in procuring naturalization even if the lie was
not "material" and "did not influence the decision to approve [her]
naturalization." 137 S. Ct. at 1924 (alteration in original).
After the Sixth Circuit affirmed the conviction, see United States
v. Maslenjak, 821 F.3d 675 (6th Cir. 2016), the Supreme Court
granted certiorari. It then vacated the Sixth Circuit's decision,
finding the instruction dispensing with any materiality
requirement improper. Maslenjak, 137 S. Ct. at 1924. In so
finding, the Supreme Court established what at first blush may
seem like a causation-in-fact requirement regarding the
relationship between an illegal act and naturalization. The Court
several times explained that an illegality must have "played some
role in" the acquisition of naturalization, id. at 1923, 1925,
1927; that it "must have somehow contributed to the obtaining of
citizenship," id. at 1925; and that "a jury must decide . . .
whether a false statement sufficiently altered [the immigration]
- 12 - processes as to have influenced an award of citizenship," id. at
1928.
When homing in on section 1425(a)'s application to lies
to government officials, however, the Court made clear that the
government need not prove that a lie did in fact cause, contribute
to, or influence the award of citizenship. Rather, retreating
from notions of causation-in-fact, the Court explained that jurors
need not focus on the actual decisionmaker in the immigration
proceeding at issue. Indeed, "the question of what any individual
decisionmaker might have done with accurate information is beside
the point." Id. Instead, "the proper causal inquiry under
§ 1425(a) is framed in objective terms: To decide whether a
defendant acquired citizenship by means of a lie, a jury must
evaluate how knowledge of the real facts would have affected a
reasonable government official properly applying naturalization
law." Id. And in making those decisions, the jury can consider
whether a truthful response "would have prompted reasonable
officials . . . to undertake further investigation" that "'would
predictably have disclosed' some legal disqualification." Id. at
1929 (quoting Kungys v. United States, 485 U.S. 759, 774 (1988)).
The difference between what Maslenjak requires and the
instruction given in this case is subtle but substantive. Reduced
to its nub, Maslenjak requires proof that the truth would have
predictably led a reasonable official to deny the application,
- 13 - while the instruction here required that the government prove that
the truth could have had such an effect.
We will assume that this difference means the given
instruction was erroneous. As we have stated, we are also assuming
without deciding that there was due "cause" not to have challenged
the instruction at trial. So the pivotal question is whether the
error resulted in "actual prejudice." Brecht v. Abrahamson, 507
U.S. 619, 637 (1993) (quoting United States v. Lane, 474 U.S. 438,
449 (1986)).
Courts have tinkered with the words used to describe
exactly how one must ascertain "actual prejudice." Brecht pointed
to the formulation set forth in the Supreme Court's earlier
decision in Kotteakos: "whether the error 'had substantial and
injurious effect or influence in determining the jury's verdict.'"
Brecht, 507 U.S. at 637 (quoting Kotteakos v. United States, 328
U.S. 750, 776 (1946)). Kotteakos itself also stated that an error
can be overlooked as not causing actual prejudice if the reviewing
court "is sure that the error did not influence the jury, or had
but very slight effect." Kotteakos, 328 U.S. at 764. Our circuit
in 1994 reasoned that under Brecht no actual prejudice is shown
"if it is 'highly probable' that the challenged action did not
affect the judgment." Singleton v. United States, 26 F.3d 233,
237 (1st Cir. 1994) (quoting United States v. Wood, 924 F.2d 388,
402 (1st Cir. 1991)) (applying Brecht to a section 2255 petition).
- 14 - A year later, the Supreme Court spoke of not having "grave doubt"
because one is convinced beyond "equipoise" that the error had not
"substantially influenced the jury's decision." O'Neal v.
McAninch, 513 U.S. 432, 435–36 (1995). And while we thereafter
continued to apply the Singleton formulation, see, e.g., Sustache-
Rivera v. United States, 221 F.3d 8, 18 (1st Cir. 2000),1 the
Supreme Court has more recently pointed us towards O'Neal's
formulation of the pertinent inquiry, see Davis v. Ayala, 576 U.S.
257, 268, 276 (2015). That inquiry as formulated in O'Neal begins
by asking, "Do I, the judge, think that the error substantially
influenced the jury's decision?" 513 U.S. at 436. If the answer
to that question is "yes," or if we are in "equipoise as to" the
answer, then the error is not harmless. Id. at 435.2
With this inquiry in mind, we turn to Munyenyezi's
argument that there is much reason to think that the "could have
caused" (rather than "would have caused") instruction
substantially influenced the jury's decision. Munyenyezi contends
that we must consider this harmless error argument de novo in
reviewing the district court's denial of her habeas challenge to
1 The government asks us to do so again here. 2 We reject Munyenyezi's argument that we should apply a "beyond a reasonable doubt" test for harmlessness, as we might were this a review of a preserved claim of error on direct review. See Chapman v. California, 386 U.S. 18, 24 (1967); see also United States v. Maslenjak, 943 F.3d 782, 787 (6th Cir. 2019).
- 15 - her federal conviction, citing Pettiway v. Vose, 100 F.3d 198, 200
(1st Cir. 1996) ("Our review of a harmless error determination on
habeas corpus review is de novo."). The government offers no
objection or argument to the contrary, so we shall proceed with de
novo review.
Munyenyezi begins her argument by pointing out that the
jury's general verdict did not specify which of the challenged
statements it found to be false. Building on this ambiguity,
Munyenyezi constructs a two-part, "but-for" scenario that would
warrant habeas relief. First, she describes the jury's verdict as
likely resting on a finding that Munyenyezi's only false statement
was her denial of MRND membership. In so arguing, she implicitly
acknowledges that statements two3 and three,4 and part of one,5 if
false, would have obviously concealed information that would have
led to the denial of her various applications during the
naturalization process. And she presumes, as does the government,
3 In her second statement, Munyenyezi denied that she had "ever persecuted, either directly or indirectly, any person." 4 In her third statement, Munyenyezi denied that she had "ever committed a crime or offense for which [she was] not arrested." 5 By swearing that she had never "been a member of or associated with any organization, association, fund, foundation, party, club, society or similar group," Munyenyezi not only denied MRND membership but also Interahamwe membership in her first statement.
- 16 - that statements four6 and five7 could only be found to be false
based on a prior material false statement about activity addressed
in statements one, two, or three. Second, she predicts that a
differently instructed jury would have found that a lie limited to
denying MRND membership would not have played a role in her
successful pursuit of naturalization; i.e., learning of MRND
membership would not have caused reasonable officials to deny her
application or to undertake an investigation that predictably
would have led to its denial. Because we find unconvincing her
description of the likely basis for the guilty verdict,
Munyenyezi's argument fails at the first step.
Munyenyezi's description of the likely basis of the
jury's actual verdict cannot be squared with the trial record,
which reflects that the contest of proof and argument trained
overwhelmingly on two diametrically opposed, all-or-nothing
versions of Munyenyezi's conduct in Rwanda. The government's
witnesses testified that Munyenyezi was virtually all-in on the
genocide: She joined the MRND, wore its clothing, joined the
Interahamwe, and actually checked identity cards at the roadblock
6 In her fourth statement, Munyenyezi denied that she had "ever given false or misleading information to any U.S. official while applying for any immigration benefit or to prevent deportation, exclusion, or removal." 7 In her fifth statement, Munyenyezi denied that she had "ever lied to any U.S. Government official to gain entry or admission into the United States."
- 17 - to find Tutsi victims to be separated out for murder. Munyenyezi's
defense was an across-the-board denial and a claim that those
witnesses were lying. She put on expert testimony suggesting that
Rwandan witnesses tend to adhere to an "official narrative"
promoted by their government. Munyenyezi also called several
witnesses who spent time at the Hotel Ihuriro during the genocide.
According to them, Munyenyezi was always in the hotel caring for
her young child, and she wore loose-fitting maternity clothes, not
military fatigues or MRND clothing, because she was pregnant with
twins who were born on November 20, 1994 (more than seven months
after the genocide began).
The closing arguments reflect the all-or-nothing nature
of the case as presented to the jury. According to Munyenyezi's
counsel, the Rwandan genocide was an event "in which she had
absolutely no part." Moreover, Munyenyezi's counsel insisted that
"[s]he wasn't a member of the MRND" and that the witnesses who
said otherwise were "just wrong" and were "not telling the truth."
The government, in turn, stressed that Munyenyezi lied about
essentially everything to cover up her past. The all-or-nothing
approach by both sides was virtually compelled by the nature of
the evidence, which presented no readily apparent means for
concluding that the government witnesses were lying about
everything except MRND membership.
- 18 - Munyenyezi nevertheless points to the government's
statement in its closing argument that if "she told a single lie,"
she was guilty, and that "at a minimum she associated with the
MRND." This was an invitation to the jurors, claims Munyenyezi,
to find against her only on her denial of MRND membership and a
recognition by the government that its proof was not as strong on
the other issues. But in arguing that that lie was enough to
convict, the government never suggested that there was any path in
the record to find that that statement was false and the others
true. And even if the government's strongest claim was that
Munyenyezi lied about MRND membership, the fact remains that the
evidence pointing to across-the-board lying was strong unless one
labeled the government's witnesses as liars and Munyenyezi and her
witnesses as honest.
The district court characterized the record at the
second trial as "overwhelmingly establish[ing]" her participation
in murder. And on her direct appeal we described the record as
presenting a "vast and damning array of evidence against her."
Munyenyezi, 781 F.3d at 540 (holding that any error in admitting
into evidence Munyenyezi's international criminal court testimony
was harmless). On such a record, it is quite a stretch to think
that the jury found that she and her witnesses at trial lied only
by falsely denying her MRND membership yet told the truth
otherwise. The jury more likely viewed a lie about MRND membership
- 19 - as the thirteenth stroke of Thomas Hardy's crazy clock: "It was
not only received with utter incredulity as regarded itself, but
threw a doubt on all assurances that had preceded it." Thomas
Hardy, Far From the Madding Crowd 209–10 (First Vintage Classics
ed. 2015).8 For these reasons, we reject as implausible the premise
that Munyenyezi's conviction turned on a finding that she lied
only about her MRND membership. And with that premise rejected,
and causation inexorable as to the other alleged lies, we find
ourselves far past equipoise in answering "no" to the question of
whether the assumed Maslenjak error in the instruction
substantially influenced the jury's decision. See O'Neal, 513
U.S. at 435–36.9
III.
For the foregoing reasons, we affirm the denial of
Munyenyezi's petition for a writ of habeas corpus.
8 With thanks to Dwight H. Sullivan & Eugene R. Fidell, Winding (Back) the Crazy Clock, 19 Green Bag 2d 397, 401 (2016). 9 Because we agree with the government that Munyenyezi has failed to show actual prejudice, we decline to address the government's alternative argument that the concurrent sentence doctrine bars habeas relief here.
- 20 -